Roslyn Gardens Tenants Corp.

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 506 (N.L.R.B. 1989)

506 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roslyn Gardens Tenants Corp. and Local 32B-32J,
Service Employees International Union, AFL-
CIO. Case 29-CA-12619
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On July 8, 1988, Administrative Law Judge
Steven Davis issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and
a brief in support of cross-exceptions, in support of
the judge's decision and in reply to the Respond-
ent's exceptions.
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,' and
conclusions and to adopt the recommended Order
as modified as set forth in full below.2
The Respondent is engaged in the ownership and
management of a cooperative building.3 On Sep-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We find merit in the General Counsel's exception to the judge's fail-
ure to find that the collective-bargaining agreement was effective from
August 16, 1985, to June 20, 1988 In this regard, the judge inadvertently
used March 14, 1986, the date that the Union mailed the contract to the
Respondent for signing, as the effective date of the contract although the
parties had agreed that the contract, with the exception of the first wage
increase, should be effective retroactive to August 16, 1985 Accordingly,
we find that the effective date of the collective-bargaining agreement is
August 16, 1985, the date specified in the agreement, and shall modify the
recommended Order accordingly
The General Counsel also excepts to the judge's failure to recommend
that the Respondent execute the agreed-on contract with an effective
date for the first wage increase of March 15, 1986, the date that the con-
tract should have been executed In this regard, the parties agreed that
the first wage increase would be effective on the execution of the con-
tract, and the Union's attorney mailed the contract to the Respondent for
signing on March 14, 1986 The Board presumes that, in circumstances
such as those presented here, mail sent in the regular course of business is
received the next day, particularly when no evidence has been presented
that would otherwise rebut this conclusion See Hendricks-Miller Typo-
graphic Co, 240 NLRB 1082, 1088 (1979) We thus agree with the Gener-
al Counsel that the Respondent should have executed the contract on
March 15, 1986, and that this date is the effective date for the first wage
increase The recommended Order is modified accordingly
Finally, the General Counsel excepts to the judge's failure to recom-
mend that the Respondent take certain actions to remedy its unlawful re-
fusal to execute the agreement We find merit in this exception and shall
amend the recommended Order to correct these inadvertent omissions
' Our dissenting colleague would dismiss this case on jurisdictional
grounds, citing his dissent in Imperial House Condominium, 279 NLRB
1225 (1986) However, for three decades the Board has asserted jurisdic-
tion over residential cooperatives Westchester Corp, 124 NLRB 194
(1959) Imperial House, with circuit court approval, upheld the appropn-
tember 9, 1986, the Union filed a chargeballeging
that the Respondent violated Section 8(a)(5) and
(1) of the Act by failing to bargain in good faith
with the Union through its refusal to execute and
implement the collective-bargaining agreement to
which it had agreed. Based on this allegation, the
General Counsel issued a complaint on October 24,
1986. In addition to the allegation contained in the
charge, the complaint also alleged that the Re-
spondent violated Section 8(a)(5) and (1) of the Act
by unilaterally changing the existing terms and
conditions of employment, by refusing to make
welfare and pension contributions, and by bypass-
ing the Union and bargaining directly and individ-
ually with employees. On November 12, 1987, the
second day of the hearing, the General Counsel
moved to amend the complaint to include addition-
al violations of the Act.4 On December 21, 1987,
the third and last day of the hearing, the General
Counsel again moved to amend the complaint to
include an allegation that the Respondent had vio-
lated the Act by unilaterally changing the terms
and conditions of employment by modifying the
trial-period provision of the collective-bargaining
agreement. The judge granted each of the General
Counsel's motions to amend the complaint.
In adopting the judge's recommended Order, as
modified, we note that the Respondent argues in its
exceptions that the allegations of the amended
complaint are time-barred under Section 10(b) of
the Act "since predicate unfair labor practice
charges were never timely filed by Local 32B-
32J." In determining whether otherwise untimely
filed allegations are barred under Section 10(b) of
the Act, we examine the newly alleged violations
to determine whether they are "closely related" to
and grow out of the violations timely alleged in the
charge. In applying the "closely related" test to
those violations alleged here, we examine the fol-
lowing factors: (1) "whether the otherwise untime-
ly allegations are of the same class as the violations
alleged in the pending timely charge" (i.e., whether
they involve the same legal theory and usually the
same section of the Act); and (2) "whether the oth-
erwise untimely allegations arise from the same fac-
ateness of exercising jurisdiction over condominiums, which are in most
respects functionally similar to cooperatives 279 NLRB at 1226 fn 6,
enfd 831 F 2d 999 (11th Cir 1987)
4 The amended complaint alleges that the Respondent informed em-
ployees that it no longer had a contract with the Union and solicited em-
ployees to revoke authorization for dues deductions, informed employees
that it would no longer recognize or bargain with the Union and solicited
employees to resign from the Union, unilaterally changed existing terms
and conditions of employment by changing sick leave and vacation bene-
fits, by announcing a wage freeze without negotiating with the Union or
affording it an opportunity to bargain, by granting a wage increase, and
by changing vacation schedules and work schedules without regard to se-
niority
294 NLRB No. 40
ROSLYN GARDENS TENANTS CORP
tual situation , or sequence of events as the allega-
tions in the pending timely charge" (i.e., whether
they involve similar conduct, usually during the
same time period , with a similar object).5
After examining all the allegations of the amend-
ed complaint , we find that these allegations are
"closely related" to the original charge . In reach-
ing this conclusion , we note that while the charge
alleged a specific act, the failure to execute the
agreement, it was premised on the theory that the
Respondent violated Section 8(a)(5) and (1) of the
Act by failing and refusing to bargain with the
Union. We further note that all the allegations of
the amended complaint allege violations of the
same section of the Act, that they grow out of the
same factual situation , the Respondent 's failure and
refusal to bargain with the Union, and that the al-
leged conduct is directed at the same object, the
circumvention of the collective-bargaining proc-
ess.6 Thus, we conclude that the allegations of the
amended complaint are not barred under Section
10(b) of the Act.7
6 Redd-I, Inc, 290 NLRB 1115, 1118 (1988) See also NLRB v Dorton
Coil Co, 201 F 2d 484, 491 (2d Cir 1952), and NLRB v Font Milling Co,
360 U S 301, 309 (1959) The Board may also look at whether a respond-
ent would raise the same or similar defenses to the new allegations
6 We note that the "closely related" issue was recently addressed in
G W Galloway Co v NLRB, 856 F 2d 275 (D C Cir 1988), enf dented
to 281 NLRB 262 (1986), in which the court considered "how far the
Board may stray from the allegations in the charge without violating
Section 10(b)'s mandate that it not originate complaints on its own initia-
tive " In Galloway the union filed a charge alleging that an employee had
been discriminatorily discharged After investigation, the General Coun-
sel dismissed this allegation , but alleged in the complaint that the employ-
er had violated the Act through statements made by its president to em-
ployees who had struck the day after the employee was discharged The
Board reversed the judge and found that the complaint was not barred
under Sec 10(b) reasoning , inter alia, that the boilerplate "other acts"
language on the preprinted charge form was broad enough to encompass
the complaint 's allegations In setting aside the Board 's Order , the court
found that no relationship , other than a temporal one, between the dis-
charge and the strike was established The court further held that the
Board could not rely on the "other acts" language in the preprinted
charge form to expand its power to issue complaints , but that "[t]here
must be a significant factual relationship between the allegations in the
charge and those in the complaint "
The present case is clearly distinguishable from Galloway, as here the
allegations of the amended complaint are "closely related " to those of the
charge and we have not relied on the "other acts" language of the
charge form to find that the newly alleged violations are not barred
under Sec 10(b) of the Act See Redd-I, above, and Davis Electrical Con-
structors , 291 NLRB 115 (1988)
We also note that here, after the General Counsel moved to amend the
complaint on the second day of the hearing, the judge, in conjunction
with his ruling granting the motion , specifically extended to the Respond-
ent's counsel additional time to prepare for cross -examination of the Gen-
eral Counsel 's witnesses and permitted the Respondent 's counsel to post-
pone to another day his cross-examination of them In this regard, after
the judge made his ruling , the Respondent 's counsel stated on the record
that the judge 's ruling "seems like a fair resolution to me " Additionally,
the Respondent's counsel neither objected to the amendment of the com-
plaint on the third day of the hearing, nor requested a postponement, but
entered a denial of the allegation contained in the amendment In these
circumstances , we cannot find that the Respondent's right to due process
was violated by the amendment of the complaint at the hearing
' In Fant Milling, above, the Supreme Court held that the charge alleg-
ing a general refusal to bargain could be found to encompass a later uni-
lateral wage increase The Court noted (360 U S at 307) that the increase
507
ORDER
The National Labor Relations Board orders that
the Respondent, Roslyn Gardens Tenants Corp.,
Roslyn Heights, New York, its officers, agents,
successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to execute the collective-
bargaining agreement agreed on by the Respondent
and the Union.
(b) Changing terms and conditions of employ-
ment set forth in the collective -bargaining agree-
ment during the term of the agreement without the
consent of the Union.8
(c) Unilaterally, and without notice to the Union,
changing existing terms and conditions of employ-
ment.
(d) Informing its employees that it did not have a
contract with the Union or soliciting its employees
to revoke their union dues deduction authoriza-
tions.
(e) Informing its employees that it would no
longer recognize or bargain with the Union , solicit-
ing its employees to resign from the Union, and by-
passing the Union and bargaining directly and indi-
vidually with its employees by offering and promis-
ing Blue Cross and Blue Shield health insurance
benefits in order to induce them to refrain from be-
coming or remaining members of the Union.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Forthwith execute the contract, on which
agreement was reached with the Union on March
14, 1986, with an effective date of August 16, 1985,
but with an effective date of March 15, 1986, for
the first wage increase.
(b) On execution of the aforesaid agreement, give
retroactive effect to its provisions and make whole
the employees, with interest, for any losses they
was within "the same class of violations as those set up in the charge,"
and further (id at 309 ) that "the Board is not precluded from ` dealing
adequately with unfair labor practices which are related to those alleged
in the charge and which grow out of them while the proceeding is pend-
ing before the Board,"' citing National Licorice Co v NLRB, 309 U S
350, 369 (1940)
8 The judge found that the Respondent violated Sec 8(a)(5) by chang-
ing certain terms and conditions of employment Some, but not all, of
these terms and conditions were set forth in the collective -bargaining
agreement the Respondent unlawfully refused to sign , others were estab-
lished by past practice The Respondent may not, during the term of a
collective-bargaining agreement , alter the provisions of that agreement
without the consent of the Union Nor may the Respondent unilaterally
and without notice to the Union change the terms and conditions of em-
ployment which , though not set forth in a collective -bargaining agree-
ment, are established by past practice or by the terms of an expired col-
lective-bargaining agreement
508 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
may have suffered by reason of the Respondent's
failure to sign and effectuate all terms of the agree-
ment. Backpay shall be computed in the manner
prescribed in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with
interest to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). In addition, the Respondent shall pay the
contractually agreed-on trust funds in the amounts
of the contributions that the Respondent failed to
make on behalf of the unit employees in accord-
ance with the Board's decision in Fox Painting Co.,
263 NLRB 437 (1982), with any additional amount
to be computed in accordance with the Board's de-
cision in Merryweather Optical Co., 240 NLRB 1213
(1979). The Respondent shall reimburse its employ-
ees for any expenses resulting from its failure to
make fund payments in the manner set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981); provid-
ed, however, that nothing in the Order shall au-
thorize or require the withdrawal or elimination of
any wage increase unlawfully granted to employ-
ees, without a request from the Union.
(c) Rescind the sick leave policy changes unilat-
erally instituted in August 1986 and the vacation
and work schedule changes it made on October 1,
1987, and restore the pre-October 1, 1987 work
schedules and abide by seniority with respect
thereto.
(d) Rescind the individual hiring agreements it
entered into with employees Marcelino Tones and
Himzija Hike Radoncic on September 14, 1987.
(e) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(f) Post at its place of business in Roslyn
Heights, New York, copies of the attached notice
marked "Appendix."9 Copies of the notice, on
forms provided by the Regional Director for
Region 29, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the
9If 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 "
notices are not altered, defaced, or covered by any
other material.
(g) Notify the Regional Director in 'writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
MEMBER JOHANSEN, dissenting.
Contrary to my colleagues, I would not assert
jurisdiction over the Respondent, which is engaged
in the ownership and management of a. cooperative
building for the reasons set forth in the dissent in
Imperial House Condominium, 279 NLRB 1225
(1986). Accordingly, I would dismiss the com-
plaint.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor' Relations Act
and has ordered us to post and abide by' this notice.
WE WILL NOT fail or refuse to execute the col-
lective-bargaining agreement agreed on between us
and the Union.
WE WILL NOT change terms and conditions of
employment set forth in the collective-bargaining
agreement, during the term of the agreement, with-
out the consent of the Union.
WE WILL NOT unilaterally and without notice to
the Union change existing terms and conditions of
employment.
WE WILL NOT inform our employees that we do
not have a contract with the Union or solicit our
employees to revoke their union dues deduction
authorizations.
WE WILL NOT inform our employees that we
would no longer recognize or bargain with the
Union, or solicit our employees to resign from the
Union, or bypass the Union and bargain directly
and individually with our employees by offering
and promising Blue Cross and Blue Shield health
insurance benefits in order to induce them to re-
frain from becoming or remaining members of the
Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL forthwith execute the contract, on
which agreement was reached between us and the
Union on March 14, 1986, with an effective date of
ROSLYN GARDENS TENANTS CORP
Augustu.16, 1985, but with an 'effective date of
March 15, 1986, for the first wage increase.
WE WILL give retroactive effect to the terms and
conditions of employment of the contract, and WE
WILL make whole our employees for any losses
they may have suffered by reason of our failure to
execute the above agreement, with interest.
WE WILL reimburse the Union' s trust funds in
the amounts of contributions that we failed to make
on behalf of our employees.
WE WILL rescind the sick leave policy changes
that we unilaterally instituted in August 1986 and
the vacation and work schedule changes that we
made on October 1, 1987, and WE WILL restore the
pre-October 1, 1987 work schedules and abide by
seniority with respect thereto.
WE WILL rescind the individual hiring agree-
ments that we entered into with employees Marce-
lino Torres and Himzija Hike Radoncic on Septem-
ber 14, 1987.
ROSLYN GARDENS TENANTS CORP.
David S. Cohen, Esq., for the General Counsel.
Stuart M. Kirshenbaum. Esq. (Pollock & Rirshenbaum,
P.C.), Valley Stream, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge Pursuant
to a charge filed on September 9, 1986 by Local 32B-
32J, Service Employees International Union, AFL-CIO
(Local 32B or the Union), a complaint was issued by
Region 29 of the International Labor Relations Board on
October 24, 1986, against Roslyn Gardens Tenants Corp.
(Respondent).1
The complaint, as amended at the hearing, alleges that
Respondent.
(a) Refused to execute an agreed-upon written
contract with the Union.
(b) Unilaterally and without notice to the Union
changed existing terms and conditions of employ-
ment as set forth in its contracts, by:
(1) On or about March 9, 1986 refusing to pay
pension and welfare contributions
(2) In or about August or September 1986,
changing sick leave and vacation benefits and an-
nouncing a wage freeze.
(3) On or about April 27 and May 11, 1987,
granting wage increases.
1 Respondent denied knowledge of the filing and service of the charge
The charge bears a date stamp of September 9, 1986, as having been filed
in the Regional Office on that date A letter sent to Respondent at its
proper address, which contained the charge, was sent on September 9,
according to an affidavit of the Board agent, in evidence An original
return receipt bearing the same postal number as set forth in the letter
was signed, apparently by Jose Rio, the superintendent I accordingly
find that the charge was properly filed and served as alleged
509
(4) On about September 15, 1987, modifying the
trial period for new employees.
(5) In or about early October 1987, changing va-
cation schedules and work schedules without regard
to seniority.
(c) On or about July 3, 1986, informed its em-
ployees in writing that it did not have a contract
with the Union and solicited its employees to
revoke their union dues deduction authorizations.
(d) In or about August or September 1986, in-
formed its employees 'that it would no longer recog-
nize or bargain with the Union, solicited its employ-
ees to resign from the Union and bypassed the
Union and bargained directly and individually with
its employees by offering and promising Blue Cross
and Blue Shield health insurance benefits in order to
induce them to refrain from becoming or remaining
members of the Union.
On October 21, November 12, and December 21, 1987,
a hearing was held before me in Brooklyn, New York.
On the entire case, including my observation of the de-
meanor of the witnesses and after consideration of the
letter filed by the General Counsel and brief filed by Re-
spondent, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, having its prin-
cipal office and place of business at 225 Warner Avenue,
Roslyn Heights, New York;, is engaged in the ownership
of real property for residential cooperative purposes and
in providing residential building management and related
services During the past year, which period is represent-
ative of its annual operations generally, Respondent, in
the course and conduct of its operations, collected gross
revenues from rents in excess of $500,000 Also, during
the past year, which period is representative of its annual
operations generally, Respondent, in the course and con-
duct of its business, purchased and caused to be trans-
ported and delivered to its Roslyn Heights place of busi-
ness, - heating oil , paint and other goods and materials
valued in excess of $50,000 of which goods and materials
valued in excess of $50,000 were delivered to its place of
business in interstate commerce directly from States of
the United States other than the State of New York, or
were transported and delivered to it, and received from,
other enterprises, located in the State of New York, each
of which other enterprises had received the goods and
materials in interstate commerce directly from States of
the United States other than the State of New York.
The above facts were neither admitted nor denied in
Respondent's detailed answer.2 Inasmuch as those allega-
tions were not specifically denied or explained, they are
deemed to be admitted to be true. Board's Rules and
Regulations, Section 102.20, Burlington Homes, 246
2 Respondent also stated in its answer that it is the "owner of a cooper-
ative apartment building whose sole function is to provide residential
housing for its occupants "
510 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB 1029, 1031 (1979); Walnut Creek, 208 NLRB 656
(1974).
However, Respondent argues that the General Coun-
sel has not proven that the Board has jurisdiction over
Respondent, apparently relying upon its (a) affirmative
defense set forth in its answer that it does not engage in
or effect commerce within the meaning of the Act and
(b) denials of the following allegations of the complaint:
Respondent is and has been at all times material
herein, an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act.
By the acts described above in paragraphs 12
through 14, Respondent refused to bargain collec-
tively, with the representative of its employees, and
thereby engaged in, and is engaging in, unfair labor
practices affecting commerce within the meaning of
Section 8(a)(5) and Section 2(6) and (7) of the Act.
However, denials of these conclusionary allegations of
the complaint are not sufficient to rebut the admissions
of the substantive paragraphs which establish jurisdiction
over Respondent, a 490 unit cooperative which was de-
scribed as "strong" by its managing agent. In stating its
affirmative defense and denying the paragraphs noted,
Respondent denies only that the Board has legal jurisdic-
tion over it. Its answer did not, however, contest the fac-
tual jurisdictional statements in the complaint-allega-
tions on which the Board based its assertion of jurisdic-
tion over Respondent.
Inasmuch as the factual allegations have been deemed
admitted by the failure to answer those paragraphs, the
conclusionary allegations that the Board has legal juris-
diction over Respondent follow.
I accordingly find that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent denied knowledge of the labor organiza-
tion status of Local 307, Service Employees International
Union, AFL-CIO (Local 307) and Local 32B.
Ronald Raab, attorney for both unions, testified that
Local 307 was merged into Local 32B in May 1982, after
which Local 307 ceased to exist. After the merger, Local
32B administered and serviced all of Local 307's collec-
tive-bargaining contracts until those agreements expired.
Renewal agreements were negotiated between Local 32B
and the employers.
Raab stated that the purpose of the two unions is to
represent employees in order to improve wages, hours,
and conditions of employment. Local 32B has 65,000
members, most of whom are building service workers in
New York. I may take official notice of the facts that
Local 32B has numerous collective-bargaining contracts
with employers and has been certified many times by the
Board. Respondent's answer admits that "negotiations
were conducted on occasion for the purpose of negotiat-
ing a collective bargaining agreement."
I accordingly find that Local 32B is a labor organiza-
tion within the meaning of Section 2(5) of the Act and
that Local 307 has been a labor organization 'until May
1982.
III. THE APPROPRIATE BARGAINING UNIT
The evidence adduced at the hearing concerning the
unit convinces me that , as alleged in the complaint, the
following is an appropriate bargaining unit:
All superintendents, handymen and "others" em-
ployed by Respondent at its Roslyn Heights, New
York location, excluding guards and supervisors as
defined in Section 2(11) of the Act.
IV. ALLEGED UNFAIR LABOR PRACTICES
A. The Refusal to Execute the Contract
1. Background
The premises involved herein was originally a rental
apartment building owned by Juleah Company-Roslyn
Gardens.
Juleah Company had a collective-bargaining relation-
ship with Local 307. Their most recent contract ran
from August 15, 1981, to August 14, 1984.
As set forth above, in May 1982, Local 307 merged
into Local 32B and thereafter Local 32B administered
the contract.
By August 1984, the building had been converted to a
cooperative and its name changed to that of Respond-
ent's.
Shortly before August 1, 1984, the Union requested
bargaining for a renewal contract to replace the one
which was expiring on August 14. On August 1, Re-
spondent's then attorney, Frederick Braid, wrote the
Union inviting it to call and arrange dates for negotia-
tions.
Negotiations took place but were later stalled. In No-
vember 1984, the union agent conducting the bargaining
asked Union Attorney Raab to speak to Braid to try to
resolve certain areas of disagreement. Following two or
three conversations between the attorneys Raab reported
to the union agent that their discussions had not been
successful-there were still certain substantial items that
were not resolved and that he, Raab, could do no more.
No agreement had been reached by July 18, 1985,
when Respondent's new attorney, Morton Newburgh,
advised the Union that Respondent decided to grant all
`union employees' an 8 percent salary raise effective
August 5 "without prejudice to [Respondent's] rights or
obligations . . . in the ongoing negotiations .. ." and
asked for the Union's agreement to the wage increase.
Raab phoned Newburgh and advised him that the
Union would not agree to the wage raise and suggested
that the best way to settle the matter is to negotiate a
contract. In September, dates to meet were set.
Two or three negotiation sessions were held-in early
October and in early November 1985. Present were
Raab, union agent Charlie Brown, Newburgh and Mary
Peck, the Respondent's managing agent. 3 Raab and
s In its answer Respondent admits that Peck acted in its behalf and was
its agent
ROSLYN GARDENS TENANTS CORP
Newburgh were the spokesmen for their parties. They
worked from the expired contract, and the 1982 and
1985 standard 5 contracts
2 The negotiations4
a Wages
At the first meeting, Raab informed Newburgh of the
New York City and Long Island 1985 wage settlements
in the standard contracts. The Union demanded that any
wage increase be retroactive to August 1984, the expira-
tion date of the last contract. Respondent refused
The Union withdrew its demand for retroactivity and
instead asked that the wage increase be that as set forth
in the 1985 Long Island standard agreement, which
became effective on June 21, 1985. The Union wanted to
raise the employees' salaries to that set forth in that 1985
standard contract, which would also require a "catch-
up" raise.
Newburgh said that he would "take a look at it" and
get back to Raab. Nothing was resolved that day.
At the last meeting , it was agreed that the rate for the
porter and handyman would be brought up to the 1985
standard contract rate over the life of that contract.
Because the building was a nonpublicly financed coop-
erative, it was classified, for wage purposes, at the
higher, class A, rating. Newburgh requested and Raab
agreed that since the men were being raised to the con-
tractual rates, the rates used should be at the lowest,
class C, rate
It was noted that the expired contract contained a spe-
cial, higher rate of pay for I.D and Willie Green, broth-
ers who worked as porters, than the standard rates for
porters It was agreed that when all the workers were
brought up to the standard rate the differential for the
Greens would be eliminated.
At the time of the negotiations, the superintendent
earned over $500 per week The parties agreed to estab-
lish a rate of pay of S400 for any person who succeeded
the current superintendent
It was also agreed that the effective date of the first
year's wage increase would be upon the execution of the
contract. The next two increases were to be effective on
June 21, 1986 and June 21, 1987
The effective date of the contract itself, however, is
not that clear. Raab testified that the parties agreed that
its effective date would be the day after the old contract
expired-August 1984. However, Raab later testified
when shown the contract that the contract's effective
date was, as written, August 1985
b. Pension and welfare
Raab told Newburgh what the pension and welfare in-
creases were and said that he could not accept any
change in those amounts. Raab explained that the Union
could not negotiate different rates of contribution for dif-
4 Raab was uncertain as to which specific conversations occurred at
which of the meetings What follows is a composite of Raab's testimony
without reference, unless relevant, as to what discussion took place at
which session None of the other participants testified and thus Raab's
testimony, which I credit, is uncontradicted
511
ferent employees, and that either the employer pay the
rate the fund required or the employees could not be
covered.
Newburgh replied that Respondent has been overpay-
ing the funds and wanted refund Raab assured New-
burgh that Respondent would receive a refund or credit
for any over payments made.
Raab testified that although Newburgh did not commit
himself, he said that there probably would be no problem
making the required pension and welfare contribution
At that time Respondent was still making pension and
welfare payments; pursuant to the expired contract.5
At the last meeting, Newburgh and Peck agreed to
pay the increased rates and pension and welfare contri-
bution set forth in the 1985 contract. They said that Re-
spondent was entitled to a credit in the amounts it had
overpaid. Raab assured them that Respondent would re-
ceive a credit for any amounts it overpaid.
c Vacations, holidays, and sick leave
These benefits under the expired Local 307 contract
were more generous for employees than under the 1985
standard 32B contract
The parties agreed to leave these benefits unchanged-
as they were in the expired contract-which were great-
er than the new standard contract
d. Reductions in force
This topic was discussed at the last meeting.
The contract requires the Union to give the Respond-
ent its written consent before any reduction in force is
made.
Newburgh said that inasmuch as such reductions have
already been made, Respondent would be in violation of
the agreement. Respondent planned no further reduc-
tions.
Raab suggested and Newburgh agreed that the clause
would remain in the contract, but that a later effective
date, November 1, 1985, would be inserted so that Re-
spondent, having made all the reductions in force it an-
ticipated, would not be in violation of this clause
e. Sale and transfer
The standard contract provides essentially that on the
sale of the premises the purchaser agrees to adopt the
contract and hire all the employees, and also provides
for liquidated damages.
Newburgh stated that the clause should not apply to
the sale of individual apartments. Raab replied that the
Union was concerned with a change of employer or
owner where the collective-bargaining contract was in-
volved-not the sale of individual apartments. At New-
burgh's request, Raab agreed to put their understanding
in writing, and Newburgh agreed to that
5 Respondent's answer admits making pension and welfare contribution
for more than 16 months after the contract expired in August 1984 Thus,
Respondent's payments ceased in about December 1985
512 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
f. No strike clause
The standard contract provides that if an arbitrator's
award was not complied with within 10 days the Union
may strike to enforce the award.
Raab and Newburgh agreed to extend the time to 3
weeks.
g. Past better conditions
The standard contract provides that if any employee is
receiving higher wages or benefits than provided in the
contract, he shall continue to receive such higher
amounts.
Newburgh told Raab that his major concern was with
the superintendent to whom Respondent paid a higher
wage than that provided in the contract, and a higher
wage than it would pay a replacement.
They agreed to (a) leave the standard past better con-
ditions clause in the contract and (b) put in writing their
agreement to negotiate a lower rate of pay for a replace-
ment superintendent.
h. Outside interests
The standard contract provides that if any person is an
owner of a number of companies, the contract shall be
deemed to cover all such concerns
Newburgh told Raab that language could be used to
bind the individual apartment owners' businesses , unrelat-
ed to Respondent, to the labor contract.
Newburgh and Raab agreed to (a) leave the standard
outside interests clause in the contract and (b) put in
writing their agreement that the clause was not intended
to apply to the individual cooperators outside interests.
i. Contract arbitrator
Both parties agreed to the use of the office of Contract
Arbitrator as the arbitrator for all disputes.
j. End of the negotiations
Raab testified without contradiction that at the end of
the last negotiating meeting, he had a meeting of the
minds with Newburgh and Peck and they reached a full
agreement . Newburgh said "we have an agreement." It
was agreed that Raab would prepare and send a contract
to Newburgh , Newburgh would review it and if it was
satisfactory would have it signed and returned to Raab.
3. Postmeeting events
On January 7_1986, Raab sent a contract to New-
burgh along with a letter of understanding covering ad-
ditional matters agreed to. Raab asked that the contract
and letter be signed and returned to him if they met with
his (Newburgh's) understanding.
About 2 weeks later Newburgh phoned, and said he
reviewed the contract and went over it with his client.
He also said that several changes had to be made. Raab
asked what changes he wanted Newburgh mentioned
modifications in vacation , sick leave , holidays, reduction-
in-force clauses, and two or three other items.
Raab asked him to put all the changes he wanted in a
letter, and he (Raab) would review them and change the
contract.
On January 30, Newburgh sent a letter to Raab with
the following requested changes:
(a) Newburgh asked that if an arbitrator's award
is notcomplied with within 3 weeks the Union may
strike.
This was changed from 10 days, and was agreed
to during negotiations but apparently omitted from
the contract sent by Raab
(b) Newburgh asked that all vacation, sick leave
and termination pay are to be set forth as in the
1985 standard contract.
As discussed above, these benefits are lower than the
employees enjoyed under the expired contract and the
parties, during negotiations, agreed to retain the higher
amounts that they were currently receiving, under the
expired contract
(c) Newburgh asked for a credit for pension and
welfare fund over payments.
(d) Newburgh asked that the contract indicate
that the building is Class C. That was agreed to
during negotiations but apparently omitted from the
contract sent by Raab.
(e) Newburgh asked that the reductions in force
clause bear an effective date of November 6, 1985.
November 1 had been agreed to by the parties
during negotiations.
(f) Newburgh asked that the contract provide
that no cooperator shall be liable for the payment of
union dues or fees.
(g) Newburgh also asked for an explanation of
the minimum weekly rate differentials.
On March 14, Raab sent a new contract and letter of
understanding to Newburgh. The documents incorporat-
ed all of the changes requested by him, even though the
parties had reached a different understanding as to some
of them during negotiations . Raab also provided an ex-
planation for the handyman differentials asked for by
Newburgh.
In early or mid-April, Newburgh called Raab and said
that he reviewed the contract but had some problems
with it. Raab asked "what problems? I gave you every-
thing you asked for." Newburgh replied that "some
things came up," and Respondent is contemplating more
reductions in force and cannot agree to the reduction in
force language. Newburgh also mentioned one to three
other items that he could not agree to, which had al-
ready been agreed to.6
Newburgh told Raab that he wanted to change his po-
sition on these issues. Raab replied that we had an agree-
ment Newburgh answered : "I know we have an agree-
ment or had an agreement , but . . . they won't agree to
it that way now." Raab replied that the last time New-
burgh wanted modifications he changed the contract,
6 Raab could not recall which items they were
ROSLYN GARDENS TENANTS CORP
and Newburgh got what he wanted, and that he could
not keep, changing it. Newburgh replied that he knew
but that he had a, problem-"they don't want to agree
with that . . . I can 't get it signed." Raab refused to
change the contract again . Newburgh asked him if he in-
tended to file an unfair labor practice charge and Raab
replied that he did not know.
B. The Other Violations
Brothers Willie and I. D. Green are porters who have
worked at the premises for more than 23 years. Both had
been members of Local 307 and then joined Local 32B
when' it assumed the Local 307 contract.
In early July, 1986, both received the following letter
from Respondent.
This is to inform you that ROSLYN GARDENS
TENANTS CORP does not have a Collective Bar-
gaining Agreement with Local 32B-J
Service Employees International Union.
In view of this, please indicate by signing in the
spaces provided below whether or not you want to
continue having union dues withheld A return en-
velope with pre-paid postage is enclosed for your
convenience
I wish • to continue having union dues withheld
I do not wish to continue having union dues
withheld
They both wrote that they wished to continue having
dues withheld from their salaries and they returned the
letters to Respondent.
In August or September 1986, Mary Peck called the
Greens and other workers into her office. She told them
that there was no union at the building, they were not in
the Union, asked them to cease being union members,
and advised them that any dues they paid to it was a
contribution or donation. Peck also said that they no
longer had paid sick days, and if they did not take any
sick day in the month in which it occurred they would
not be paid for it as they could not accumulate sick days
or receive pay for them.? Peck further informed them
that wage raises were not in sight. Peck also advised
them that the coop board, which had not yet decided on
vacations, would attempt to make a contract for the
men. She told them that they would receive health insur-
ance forms shortly. Peck did not testify I credit this tes-
timony of the Greens
At the time of the meeting, pursuant to the expired
Local 307 contract, the Greens received (a) 12 paid sick
days per year and payment for unused sick leave and (b)
28 paid vacation days. The contract agreed upon in
March 1986 also provided for paid sick leave and vaca-
tions.
A few days after the meeting, the superintendent gave
the Greens Blue Cross-Blue Shield hospital application
forms, and asked them to sign and return them. Neither
Green signed or returned the forms.
7 This apparently refers to sick days earned up until then
513
In August 1983, the Greens' weekly gross pay was
$334.60, pursuant to the Local 307 contract. They re-
ceived no wage increases until the weeks ending May 3
and 17, 20 1987, when they received pay raises of $11
and $24.13, respectively. All other building service
workers also received two wage hikes at the same time
and in the same percentage as the Greens.
On or about January 1, 1987, the Kreisel Company
became the management company for Respondent. Its
officials are Michael Samuel, senior account executive,
and Suzanne Flanagan , the site manager and an admitted
agent.
Samuel testified that in September, 1987 he hired Mark
Torres and another person as handymen, and gave them
a 6-month trial period contract without consulting with
any union.
The contract which the parties agreed to in March
1986 provides for a 30-day trial period.
On or about October 1, 1987, Flanagan issued certain
documents to the workers, without prior consultation
with the Union.
The documents include
(a) a list of work rules, including the statement that all
vacations must be taken between May 1 and September
1.
Both the expired Local 307 contract and the contract
agreed upon with the Union in March 1986 permit vaca-
tions to be taken from May 1 to September 15.
(b) a work schedule which changed the work days of
the Green brothers. The new schedule required Willy to
work on Saturday and I. D to work on Sunday.8
Prior to that time, they had worked a Monday to
Friday schedule for over 17 years, which they earned
due to their seniority. I D. told Flanagan that work days
were assigned by seniority. She replied that there was no
more seniority on the job.
V. RESPONDENT'S EVIDENCE
Samuel and Flanagan testified that the Respondent has
no collective-bargaining agreement with any union, and
that the Union did not contact them in 1987.
Samuel stated that when Kreisel took over the man-
agement of the building in January 1987, Peck told him
that there was no union, no union rules, and no union
contract
With respect to negotiating a contract with a union,
Samuel stated that if Kreisel were bargaining it would
have no authority to bind Respondent without confer-
ring with Respondent's board of directors which would
have to vote on such a matter. Samuel based this opinion
on Kreisel's authorization to spend amounts up to only
$1000 without Respondent's approval and since a union
contract would cost more, he believed that he would
have to obtain such authority to authorize that expendi-
ture. Samuel was not certain what dollar limit Lorwood
had, but he opined that it might have been $5000. Lor-
wood was the management company used by Respond-
ent at the time of the contract negotiations at issue.
8 Willy Green actually began work on Saturday pursuant to Samuel's
request, 2 months before he received the written order in October
514 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Samuel also offered the opinion that because Kreisel's
authority was about the same as Lorwood's, neither Peck
nor Newburgh had the authority to bind Respondent to
a collective bargaining agreement in 1986.9
Respondent attempted to prove that the Union has
abandoned any interest in Respondent or its employees.
It cross-examined the Greens concerning their contact
with the Union The testimony was confusing and, at
times, contradictory Thus, I. D. testified that the Union
did not visit them in 1986, but Willy stated that a union
agent visited two or three times that year and told all the
employees that the Union was still negotiating a con-
tract. Similarly, I. D. stated that the Union visited the
premises in September 1987 and told the workers that
the contract was at a standstill In contrast, Willy testi-
fied that the union agent did not come to the building in
1987.
However, the Greens stated that they went to general
union meetings , the Union paid Willy Green's doctor bill
in the prior 2 years and I. D Green complained to the
Union about his work days being changed, and the
changes in the sick day and vacation policies.
VI. ANALYSIS AND DISCUSSION
A. The Contract
1. Authority of Respondent's negotiators
Respondent argues that neither Newburgh nor Peck
possessed the authority-actual or apparent-to bind Re-
spondent to a collective-bargaining agreement. Respond-
ent further asserts that the negotiations conducted were
preliminary in nature which required the express approv-
al of its board of directors
The Board stated in Medical Towers Ltd., 285 NLRB
1011, 1014 (1987), that:
[t]he law is clear that an agent is deemed to have
apparent authority to bind his principal in the ab-
sence of clear notice to the contrary and the princi-
pal bears the consequences of the failure to timely
advise that the agent lacks authority. [See University
of Bridgeport, 229 NLRB 1074 (1977); Ben Franklin
National Bank, 278 NLRB 986 In 2 (1986) ]
At no time was any notice given to the Union of any
limitation of the authority of Newburgh and Peck to
reach final and binding agreement on the terms of a col-
lective-bargaining agreement There is no evidence that
Respondent notified the Union at any time that its board
of directors must vote on or approve any agreement
reached during the parties' negotiations Hyatt Regency,
281 NLRB 279 (1986). On the contrary, Peck, an admit-
ted agent of Respondent, and Newburgh said nothing
about their, authority being limited in any way and they
acted and led union attorney Raab to believe that they
had the authority to conclude a collective-bargaining
agreement. Property Resources, 285 NLRB 1105 (1987);
Cablevision Industries, 283 NLRB 22 (1987)
9 Neither Peck nor Newburgh testified 'Samuel first met Peck in late
September 1986, months after the events at issue here
Thus, Newburgh and Peck attended all negotiating
sessions, made demands and concessions and agreed to
all terms. At the end of the final meeting, Newburgh said
that "we have an agreement," and it was agreed that
Raab would prepare a contract and send it to Newburgh
who would review it and if it was satisfactory, have it
signed and returned to Raab. Pursuant to their under-
standing, Raab sent the documents.
Even when Newburgh called after he received the
contract, he did not claim that he had no authority to
agree to the contract. Rather, he stated that after review-
ing it with his client certain changes had to be made.
Raab made all the requested changes and sent new
agreements to Newburgh When Newburgh called again
and requested more changes he acknowledged to Raab
that he (Newburgh) knew that they had an agreement,
but that his client could not agree to those items now
and would not sign the contract
Thus, at no time was there any notice to the Union of
any limitation on Newburgh's authority to enter into an
agreement Even if it could be argued that the Respond-
ent's board of directors had to approve the agreement, it
did just that Thus, when Newburgh first requested that
the contract be changed he told Raab that he had re-
viewed the contract with his client (presumably the
board of directors) and wanted certain modifications.
Raab asked him to send a letter with all the changes he
desired. Newburgh sent such a letter, and Raab made all
the requested alterations. Thus Respondent's board of di-
rectors requested these changes, all of which were then
made and incorporated into an agreement which was
sent by Raab to Newburgh. Accordingly, even if New-
burgh lacked apparent authority to bind Respondent, Re-
spondent's board of directors did in fact approve the
agreement by requesting certain changes, which Raab
made in toto.
I reject Samuel's vague testimony that the prior man-
agement company might have been subject to a $5000
spending limit pursuant to its management contract The
contract was not offered in evidence, and Samuel only
became officially involved with Respondent in January
1987. His attendance at board meetings in October 1986
and conversations with Peck beginning in September
1986, long after the events at issue here, are not relevant.
Even assuming that there was a spending limit in the
management contract, Peck and Newburgh clearly had
apparent authority, as set forth above, to enter into a
final and binding agreement with the Union.
I accordingly find and conclude that Newburgh and
Peck had complete and full authority, at all times, to
enter into a final and binding collective-bargaining agree-
ment with the Union.
2 Full agreement and the failure to execute
the contract
Section 8(d) of the Act requires the parties to a collec-
tive-bargaining relationship to execute "a written con-
tract incorporating any agreement reached if requested
by either party." H. J. Heinz Co. v. NLRB, 311 U.S. 514
(1941). A threshold question, therefore is whether agree-
ment was reached by the parties.
ROSLYN GARDENS TENANTS CORP 515
Respondent argues that it has not been proven that
agreement , was reached on all terms of the contract. I do
not agree.
Union Attorney Raab testified without contradiction
that at the end of the last meeting he had a meeting of
the minds with Newburgh and Peck and that they had
reached a full agreement . He quoted Newburgh as
saying "we have an agreement ." Granite State Distribu-
tors, 266 NLRB 457 (1983). Thereafter appropriate docu-
ments were sent to Newburgh for review and execution
Subsequently , Newburgh requested certain changes in
the contract , even though full agreement had already
been reached .' ° Nevertheless , Raab agreed to all the
changes asked for, and on March 14 , 1986 sent a new
contract and cover letter to Newburgh . These changes,
taken together with the matters already agreed on, con-
stitute the new agreement and collective -bargaining con-
tract between the parties.
Respondent 's request for changes may thus be viewed
as an offer to modify the contract, which when accepted
by the Union on March 14 formed a binding, enforceable
contract. Ashe Brick Co., 280 NLRB 1383 (1986). There-
after, Newburgh requested additional changes which the
Union refused to make
It is well settled that once an agreement has been
reached it is incumbent on the employer to execute it.
H. J. Heinz; supra The Respondent therefore was fore-
closed from attempting to renegotiate the substance of
provisions to which it had previously agreed . Fashion
Furniture, supra; (1986); Premier Fabrics, 224 NLRB 710,
715 (1976).
Both parties , at the last bargaining session , acted as if
they had reached a full and complete agreement. When
Raab accepted all of Newburgh 's changes on March 14,
a new complete and full agreement was reached. Re-
spondent may not argue that it still had some changes to
make after the March 14 documents were sent. When
Newburgh called in late January with the first set of
changes, Raab asked him to send a letter with all the
changes be wanted. On January 30 Newburgh did so,
and all of those modifications were accepted by Raab.
Further evidence that a full agreement was reached
based on the March 14 correspondence is seen in New-
burgh 's later call to Raab, in April , in which he acknow-
leded that they have or had an agreement but his client
could not sign the contract because Respondent refused
to do so unless additional changes were made. There
having been an agreement on March 14 , Raab had no
obligation to further modify the agreement.
From all the above , I find and conclude that the Re-
spondent and the Union reached full and complete agree-
ment on the terms and conditions of a collective -bargain-
ing agreement on March 14, 1986, and that the Respond-
ent, by refusing to execute it, has failed to meet its duty
to bargain in good faith , and has thereby violated Sec-
tion (a)(5) and ( 1) of the Act.
10 Certain of the changes corrected inadvertent omissions by Raab in
his preparation of the contract Such inadvertent errors , which were cor-
rected by Raab in the March 14 submission , are not grounds to later
refuse to sign the contract Parkview Furniture Mfg, 284 NLRB 947
(1987), Fashion Furniture Mfg, 279 NLRB 705 (1986), Shawn 's Launch
Service, 261 NLRB 836 , 837 (1982)
B The Unilateral Changes ,
The complaint alleges and I agree that Respondent
unilaterally changed the terms and conditions of employ-
ment of its employees without consultation with the
Union.
Respondent 's answer admitted that it ceased making
pension and welfare contributions to the Union on or
about March 9, 1986
Uncontradicted testimony was given that in August or
September 1986, admitted agent Mary Peck told the
workers that they no longer were entitled to paid sick
days, and, apparently as to sick days previously earned,
unless they took them in the month in which they oc-
curred, they would not be paid for them , since sick days
did not accumulate . Peck also informed them that wage
raises were not in sight , and that Respondent 's board had
not yet decided on vacations for them
Peck 's statements were all contrary to the terms of the
expired Local 307 contract and the final agreement
reached as of March 14 , 1986, with respect to sick leave,
vacation , and wage raises.
The unit employees received wage increases during
the weeks ending May 3 and 17, 1987, in amounts differ-
ent than that set forth in the expired and the March
14,1986 contracts.
It was admitted by Managing Agent Samuel that in
September 1987 he hired two handymen and gave them
6-month trial periods , without consulting with the Union.
The parties ' March 14 contract provides for a trial
period of 30 days
In October 1987, Respondent notified its unit employ-
ees that the new vacation schedules required the workers
to take their vacation between May 1 and September 1
of the year. Both the expired Local 307 contract and the
March 14 contract permit vacations to be _ taken from
May 1 to September 15.
Respondent also notified the workers at that time that
their work schedules were changed The new schedule
required Willy Green to work on Saturday and I. D.
Green on Sunday . Respondent's past practice, based on
seniority which had been observed for 17 years , was that
the Greens did not work on weekends . Thus, Respond-
ent unilaterally changed its past practice with regard to
seniority by changing the Greens ' work schedule
All the above changes were made by Respondent uni-
laterally, without consultation with the Union.
The Board has held that the "provisions of a collec-
tive-bargaining agreement , exclusive of such items as
checkoff find union -security provisions , survive[d] the
expiration of the contract until such time as a new agree-
ment is made, until an impasse is reached, or until the
company is legally discharged . . from its obligations
to bargain with a labor organization " Excelsior Pet Prod-
ucts, 276 NLRB 759, 763 (1985)
It is settled that pension and welfare fund plans, which
are part of an expired collective-bargaining agreement,
are terms and conditions of employment which survive
the expiration of the contract and, absent impasse or
waiver, contributions to such funds may not be unilater-
ally altered . Thus, Respondent 's cessation of pension and
welfare contributions to the union 's funds, which contri-
516 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
butions were required under both the expired Local 307
contract and-the March 14, 1986 contract, violated Sec-
tion 8(a)(5) of the Act. NDK Corp., 278 NLRB 1035,
1040 (1986); KBMS, Inc., 278 NLRB 826, 849 (1986)
I also find that the unilateral grant of wage increases
in about the weeks ending May 3 and 17; the change of
vacation scheduling ; elimination of paid sick leave; and
the institution of a new trial period all violate Section
8(a)(5) of the Act. San Antonio Portland Cement Co., 277
NLRB 309, 314 (1985); Truckdrivers Local 164, 267
NLRB 8, 17 (1983); Campo Slacks, 266 NLRB 492, 498
(1983).
In addition, the assignment of weekday work to the
Greens has been a longstanding practice for many years,
based on their seniority in the building. As such, their
not being required to work on weekends became a term
or condition of employment by virtue of their interest
and right which evolved in the course of this practice.
Respondent's unilateral change, in requiring them to
work on weekends, violated Section 8(a)(5) of the Act.
Campo, supra.
The complaint alleges that in or about August or Sep-
tember 1986, Respondent informed its employees that it
would no longer recognize or bargain with the Union,
,solicited its employees to resign from the Union and by-
passed the Union and bargained directly and individually
with its employees by offering and promising Blue Cross
and Blue Shield insurance benefits, in order to induce
them to refrain from becoming or remaining members of
the Union.
This allegation refers to the meeting at which Peck
told the workers that there was no union at the building,
they were not in the Union and asked them to cease
being union members.
She also told them that the coop board would attempt
to make 8 contract for the men and that they would re-
ceive health insurance forms shortly. A few days later,
the Greens were given Blue Cross-Blue Shield hospital
application forms by the superintendent, who asked them
to sign and return them.
I find that by the statements of Peck during the meet-
ing and the subsequent tender of the hospitalization ap-
plication forms to the employees, Respondent violated
Section 8(a)(1) and (5) of the Act.
By this conduct Respondent dealt directly with its em-
ployees, bypassed its employees' collective-bargaining
agent concerning the terms and conditions of their em-
ployment and violated the Act. Hedaya Bros., 277 NLRB
942, 945 (1985); European Parts Exchange, 270 NLRB
1244, 1248 (1984); Import Body Shop, 262 NLRB 1188,
1192 (1982).
Respondent attempts to justify the changes it made by
assserting that the Union abandoned any interest in the
employees , and that Respondent was unaware of its pres-
ence. I reject that defense. Respondent negotiated and
reached agreement with the Union in March 1986, dues
were deducted from the Greens' salaries regularly, and
in July 1986 Respondent asked them if they wished to
cease their checkoff, which they refused to do. Although
the testimony was confusing concerning the Union's
visits to the premises it is clear that the Union maintained
contact with the employees. Thus, the Greens attended
general union meetings, the Union paid Willy Green's
doctor bill and I D. Green complained to'-'the Union
about the changes in workdays, and the sick day, and va-
cation policies. Achilles Construction, 283 NLRB 87
(1987).
C. Additional Violations of the Act
The complaint alleges that on or about July 3, 1986,
Respondent informed its employees that it did not have a
collective -bargaining agreement with the Union and so-
licited its employees to revoke their dues deduction au-
thorizations.
The evidence is undisputed that, as set forth above, in
early July 1986, Respondent sent letters to the Greens
which stated that it does not have a collective-bargaining
agreement with the Union, and "in view of this, please
indicate . . . whether or not you want to continue
having union dues withheld."
At the time the letter was sent, the parties had reached
full agreement on the terms of a renewal contract which
Respondent unlawfully refused to sign Accordingly, Re-
spondent's statement that it did not have a collective-bar-
gaining agreement with the Union was erroneous and un-
lawful. Its solicitation of the employees t6 revoke their
dues deduction authorizations also violated the Act.
Davis Co., 249 NLRB 488, 494 (1980); Rock-Tenn Co.,
238 NLRB 403 (1978).
D. Respondent's Procedural Defenses
Respondent argues that certain allegations of the com-
plaint and the entire amended complaint are time-barred
by Section 10(b) of the'Act. It also alleges that matters
alleged in the amended complaint were not the subject of
any charge.
Section 10(b) prohibits the issuance of a complaint
based on any unfair labor practice occurring more than 6
months prior to the filing of the charge with the Board.
The charge, which was filed on September 9, 1986, al-
leges violations-of Section 8(a)(1) and (5) of the Act, spe-
cifically, that:
(a) Respondent has since or about March 17, 1986
failed to bargain in good faith with the Union by refus-
ing and continuing to refuse to execute and implement a
collective-bargaining agreement to which it had agreed,
and
(b) By the above and other acts, Respondent has inter-
fered with , restrained and coerced employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
The Original Complaint
The original complaint which was issued on October
24, 1986 , alleges Respondent's:
(a) Refusal to execute the agreement reached on
March 14, 1986.
(b) Unilateral change since March 9, 1986, of the exist-
ing terms and conditions of employment by its refusal to
make pension and welfare contributions as required by
the terms of the expired contract, and
ROSLYN GARDENS TENANTS CORP
(c) Bypassing and direct bargaining with employees in
August , ,4986 concerning health insurance benefits and
other terms and conditions of employment i i
The alleged - unlawful refusal to execute the contract
was specifically mentioned in the charge which was
timely filed , as the date the parties finally agreed on all
terms was March 14, 1986, within the 10(b) period N. Y.-
Keansburg , 228 NLRB 1172, 1177 (1977).
The unilateral change-Respondent 's failure to make
pension and welfare contributions was also properly al-
leged , and was timely . "Each failure to make contrac-
tually required periodic [fund] payments can constitute a
separate and distinct violation of an employer 's bargain-
ing obligation ." Otten Truck, 282 NLRB 494 , ( 1986).
The Amended Complaint
At the hearing, the complaint was amended to allege
that Respondent:
(a) On July 3, 1986, informed its employees that it did
not have a collective-bargaining agreement with the
Union and' solicited its employees to revoke their author-
izations for Respondent to deduct union dues from said
employees' paychecks.
(b) In August or September 1986, informed its employ-
ees that it would no longer recognize or bargain with the
Union, solicited the employees to resign from the Union,
and bypassed the Union and bargained directly and indi-
vidually with the employees by offering and promising
Blue Cross and Blue Shield health insurance benefits and
other improvements in terms and conditions of employ-
ment to the employees.
(c) In August or September 1986, unilaterally changed
the existing terms and conditions of employment of its
employees by changing sick leave and vacation benefits
and announcing a wage freeze, notwithstanding the
terms of the March 14, 1986 collective-bargaining agree-
ment.
(d) On or about April 27 and May 11, 1987, unilateral-
ly changed existing terms, and conditions of employment
of the employees in the unit by granting wage increases
different from the wage increases set forth in the March
14, 1986 collective-bargaining agreement
(e) On or about September 15, 1987, modified the trial
period for new employees, notwithstanding the terms of
its March 14, 1986 contract.
(f) In early October 1987, unilaterally changed existing
terms and conditions of employment for the employees
by changing vacation schedules, by changing work
schedules without regard to seniority, and without
regard to the past better conditions enjoyed by the em-
ployees pursuant to the terms of the March 14, 1986 col-
lective-bargaining agreement.
The Board has long held that the requirement that
an unfair labor practice proceeding be based on a
charge filed within the 10(b) period is satisfied
where the subject of the inquiry is sufficiently relat-
ed to a charge filed within that period. [U.S.
Gypsum, 284 NLRB 4, 9 (1987).]
" This allegation was later amended at the hearing
517
The Board has required that the new alleged matters
be "closely related" to the subjects, or arise out,of the
same course of events set forth in the original charge.
Ryder System, 280 NLRB 1024 (1986), Salinas Valley
Ford Sales, 279 NLRB 679 (1986). The complaint may
also allege violations which occurred after the initial
charge was filed, and are related to the subject matter of
the charge, or the controversy which produced the
charge without any necessity for a new or amended
charge." P*I*E Nationwide, 282 NLRB 1060 (1987).
I find that all the allegations of the amended complaint
meet that standard. The allegations all directly relate to a
repudiation of the collective-bargaining process-a rejec-
tion and renunciation of the Union as the exclusive col-
lective-bargaining agent of the employees, and a plan of
action to deal directly and individually with the employ-
ees, thereby bypassing the Union
Thus, the charge alleged Respondent's refusal to exe-
cute an agreed-upon contract, and other acts of interfer-
ence The amended complaint alleges Respondent's noti-
fication to employees that they have no Union, and there
is no contract. It also alleges the bypassing of the Union
by its unilateral changes and direct dealing with the
workers. The amended complaint's allegations of Re-
spondent's rejection of its collective-bargaining obliga-
tion and unilateral changes and direct dealing with its
employees are thus closely related to and arise out of its
refusal to execute the contract.
I accordingly find that the complaint, as amended, is
not barred by Section 10(b) of the Act, and that the mat-
ters set forth in the original and amended complaints are
related to the matters specified in the charge.
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2. Locals 307 and 32B-32J are and have been, at all
material times herein, labor organizations within the
meaning of Section 2(5) of the Act.
3. At all times material , Local 32B-32J has been and
still is the exclusive collective-bargaining representative
of Respondent's employees in the bargaining unit de-
scribed below within the meaning of Section 9(a) of the
Act. The appropriate unit is:
All superintendents, handymen and "others" em-
ployed by the Employer at its Roslyn Heights, New
York location, excluding guards and supervisors as
defined in Section 2(11) of the Act.
4. On March 14, 1986, the Union and Respondent ar-
rived at a collective-bargaining agreement covering the
employees in the unit set forth above
5. By refusing to sign and comply with the collective-
bargaining agreement agreed on between it and the
Union , Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
6. By unilaterally and without notice to the Union,
changing existing terms and conditions of employment as
set forth in its contracts, by-
518 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(a) Refusing to pay pension and welfare contributions.
(b) Changing sick leave and vacation benefits and an-
nouncing a wage freeze.
(c) Granting wage increases.
(d) Modifying the trial period for new employees.
(e) Changing vacation schedules and work schedules
without regard to seniority , Respondent violated Section
8(a)(5) and (1) of the Act.
7. By informing its employees that it did not have a
contract with the Union and by soliciting its employees
to revoke their union dues-deduction authorizations, Re-
spondent violated Section 8(a)(5) and (1) of the Act.
8. By informing its employees that it would no longer
recognize or bargain with the Union , by soliciting its em-
ployees to resign from the Union and by bypassing the
Union and bargaining directly and individually with its
employees by offering and promising Blue Cross and
Blue Shield health insurance benefits in order to induce
them to refrain from becoming or remaining members of
the Union , Respondent violated Section 8(a)(5) and (1) of
the Act.
9. The above-described unfair labor practices affect
commerce within the meaning of Section .2(6).and (7) of
the Act
THE REMEDY
Having found that Respondent has violated Section
8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and take certain action de-
signed to effectuate the policies of the Act.
I shall also recommend that Respondent be ordered,
on request , to execute the collective -bargaining agree-
ment bearing an effective date of March 14,1986 agreed
on with the Union, and to comply retroactively to its ef-
fective date with its terms Additionally, Respondent
shall make whole the employees in the bargaining unit
for losses, if any, which they suffered by Respondent's
refusal to sign the agreement , in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), with inter-
est as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication I