Service Employees Local 32B-32J (Austin Gardens)

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1256 (N.L.R.B. 1998)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1256
Local 32B–32J, Service Employees International Un-
ion, AFL–CIO and Austin Gardens Owners
Corp. Case 29–CB–10135
September 30, 1998
DECISION AND ORDER
On February 17, 1998, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
Charging Party filed exceptions and a supporting brief
with an exhibit. The Respondent filed a brief in opposi-
tion to the Charging Party’s exceptions and a motion to
strike the Charging Party’s exhibit.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions3
and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.

Henry J. Powell, Esq., for the General Counsel.
Ira A. Sturm, Esq. (Raab & Sturm, LLP), of New York, New
York, for the Respondent.
Morris Tuchman, Esq., of New York, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This case
was heard on October 8, 1997, in Brooklyn, New York. The
complaint alleges that the Union, in violation of Section 8(b)(3)
of the Act, obtained an arbitration award against Austin Gar-
dens Owners Corp. enforcing the terms of a collective-
bargaining agreement and refused to bargain with Austin Gar-
dens over the terms of a collective-bargaining agreement. The
Union denies that it has violated the Act and asserts that it is a
party to a valid collective-bargaining agreement with Austin
Gardens and that the issues in the instant case should be de-
ferred to arbitration.

1 We grant the Respondent’s motion to strike the Charging Party’s
Exh. A which was attached to its exceptions. In doing so, we note that
the Charging Party does not contend that this evidence was unavailable
during the hearing or that it was evidence newly discovered since the
close of the hearing. See Sec. 102.48 (d) (1) of the Board’s Rules and
Regulations.
2 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951).
We have carefully examined the record and find no basis for revers-
ing the findings. However, we do not rely on the judge’s drawing an
adverse inference from the General Counsel’s failure to put into evi-
dence a copy of Jeffrey Gottlieb’s report to the police regarding threats
made to him. We note that the judge’s discrediting of Gottlieb had
independent bases in the contradiction between his testimony and a
remark he had made to John Doyle about a single call to his wife, his
failure to tell managing agent Babad about the alleged threatening calls,
and Doyle’s credited testimony that Gottlieb seemed eager to sign the
contract because of the other tenants’ sympathy for the employees.
3 In view of our adoption of the administrative law judge’s finding
that the contract was not signed under duress, we find it unnecessary to
pass on the Charging Party’s exception to her alternative finding that
we should defer to an arbitration award, issued after the Charging Party
had failed to appear before the arbitrator, declaring that the contract
was binding on the Charging Party.

On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, the Charging Party, and the Respon-
dent in December 1997, I make the following1
FINDINGS OF FACT
I. JURISDICTION
Austin Gardens Owners Corp., a New York corporation,
with a place of business located in Forest Hills, New York, is
engaged in the operation and maintenance of residential build-
ings. Annually, Austin Gardens Owners Corp. receives gross
revenues in excess of $500,000 and purchases goods and ser-
vices in excess of $5000 from entities within the State of New
York, which entities in turn purchase these goods directly from
firms located outside the State of New York. The parties agree,
and I find, that Austin Gardens Owners Corp. is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and that Local 32B–32J, Service Employees
International Union, AFL–CIO is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Negotiations and strike
Austin Gardens Owners Corp. is a cooperative corporation.
Although the evidence shows that many of the shareholders
occupy apartments in the buildings, some of the owners of
shares in the corporation do not live at the premises.2 Chaim
Babad, identified as the sponsor, that is the person who effectu-
ated the cooperative plan, still retains enough shares in the cor-
poration to select three members of its seven-person board of
directors. Babad is also the managing agent of the cooperative.3
John Doyle, a resident shareholder and board member of
Austin Gardens, is the treasurer of the corporation. Doyle testi-
fied that for many years the corporation had been a member of
the RAB, the management association with which Local 32B–
32J negotiates for building service workers.4 There is no dis-
pute that the employees of Austin Gardens were covered by the
1991–1994 collective-bargaining agreement negotiated with the
Union. Unknown to the other members of the board of direc-
tors, Managing Agent Babad had stopped paying dues to the
RAB at some point, and the association membership of Austin
Gardens lapsed. Thus, when the 1994–1997 collective-
1 Certain errors in the record have been noted and corrected.
2 The record does not disclose how many buildings are included in
Austin Gardens.
3 The undisputed testimony shows that Babad owns or manages
many other properties and that he employs about 10 Yugoslavian work-
ers at these other locations. See J.R.R. Realty Co., 273 NLRB 1523
(1985); Tilden Arms Management Co., 276 NLRB 1111 (1985).
4 RAB stands for Realty Advisory Board on Labor Relations, Inc.
326 NLRB No. 124
SERVICE EMPLOYEES LOCAL 32B-32J (AUSTIN GARDENS) 1257
bargaining agreement between the Union and the RAB was
negotiated, it did not cover the Austin Gardens employees. It is
unclear when the majority of the board members learned of this
state of affairs. Eventually, the Union submitted its independ-
ent building contract to Austin Gardens and demanded bargain-
ing.
Jeffrey Gottlieb, the president of the board of directors, has
been a member of the board since 1991.5 Gottlieb testified that
in the summer of 1996 he met with Union Business Agent An-
thony Spataro to discuss the proposed contract for 1994–1997.6
Gottlieb began by going through a number of complaints that
the board had concerning the work of the three employees at
Austin Gardens. After listening to his complaints, Spataro gave
him the contract and asked him to sign it. According to
Gottlieb, he replied that he had no right to sign a collective-
bargaining agreement without the concurrence of the board.
Spataro testified that Gottlieb told him that he had to go back
and check with the rest of the board of directors before he
signed the contract. According to Spataro, Gottlieb did not say
explicitly that he had no right to sign the contract without the
concurrence of the board and he did not say that he needed
board approval.
The uncontradicted evidence shows that at an annual share-
holders meeting held in July 1996, Gottlieb informed those
present that he was very close to signing the collective-
bargaining agreement with the Union.
In October 1996, Gottlieb informed Spataro that there would
be a board meeting to discuss the contract and he apparently
invited Spataro to attend. Spataro did not come to the meeting.7
Gottlieb stated that the board meeting was held on November
20, 1996, and that the board voted 4 to 3 against signing the
collective-bargaining agreement. Gottlieb himself voted in
favor of signing the agreement. Babad and three other board
members voted against the contract. One of the board members
voting against the agreement was Carmela Zloczewski whom
Gottlieb identified as the secretary of the board of directors.
Gottlieb believed that the employees’ attitude and work had
improved and he felt that he could sign a contract. After the
meeting, Gottlieb telephoned Spataro to inform him that the
board had voted against the contract. Gottlieb identified min-
utes of the meeting of November 20 signed by himself as secre-
tary pro tem.
Doyle testified that the meeting of November 20, 1996, was
not an official meeting of the board at which votes on issues
properly could be taken. According to Doyle, due notice of the
meeting had not been given to all the board members. Further,
there is a dispute as to the identity of a board member who is
the secretary of the board. According to Doyle, a member of
the board and its secretary is Pat Cruz. Doyle testified that
there were irregularities in a shareholder vote held in July to
elect a new board of directors and that an official election never
took place. Doyle maintained that Carmela Zloczewski was not
a lawfully elected member of the board and that she was not its
secretary. Gottlieb did not address these issues in his testi-
mony, and the General Counsel did not call him to rebut

5 Gottlieb is a high school teacher.
6 The record does not disclose what bargaining, if any, had taken
place before this date.
7 Gottlieb did not testify why Spataro was invited. The General
Counsel seems to fault the Union for failing to have its agent in atten-
dance at a corporate board meeting where approval of a contract was on
the agenda. The rationale for this position has not been set forth.
Doyle’s testimony that Zloczewski was not a properly elected
board member and that the meeting of November 20 was not an
official meeting at which a vote could be taken.
When Gottlieb told Spataro that the board had not approved
the collective-bargaining agreement, the Union struck to force
the cooperative to sign the contract.
Gottlieb testified that the Austin Gardens’ employees struck
on December 1, 1996. Spataro was present on the picket line
with the employees and he yelled to Gottlieb that he should
sign the contract, and that he should do it now. Gottlieb stated
that he received six telephone calls that week, on December 2
and 3, from a man with a “Yugoslavian” accent who said, “You
didn’t sign the contract, you’re an easy target, you’re tall, we’re
going to shoot you, and then we’re going to take care of the
family. Sign the contract, you’re a total target, we’re going to
get you.”8 All the calls were made by the same person.
Gottlieb said that Zloczewski told him that she had received a
threatening call. On December 7, 1996, Gottlieb testified, he
signed the contract and brought it downstairs to the picket line.
He gave the signed contract to Sait Zilkic, one of the striking
employees.9 Gottlieb testified that he told Zilkic that the collec-
tive-bargaining agreement was not approved by the board, that
he was just giving the contract to Zilkic “to hold,” and that he
had to contact Babad to see if he would agree to signing the
contract. According to Gottlieb, he told Zilkic to hold the con-
tract and not to give it to anyone. Gottlieb testified that he
signed the contract because he was under pressure from the
screaming and yelling from Spataro and also because of the
telephone calls threatening him and his family. Gottlieb said
that he spoke to a police officer about the telephone calls. He
did not state what the nature of his conversation was nor when
the conversation occurred. There is no evidence that the officer
he spoke to made an official police report.
Doyle testified that many of the tenant shareholders were up-
set that the employees had to go out on strike. They felt sym-
pathy for the long-term workers who were outside picketing in
the cold. One such tenant conducted a survey and concluded
that most of the shareholders wanted the contract to be signed
so that the employees could return to work. The tenants were
also upset because Babad had brought in people whom Doyle
called “scabs” to work in the building. Doyle said that he
spoke to one of these people, a Yugoslavian who was menacing
women tenants in the lobby. Gottlieb spoke to Doyle during
the strike and complained that although all the tenants were
blaming him for not signing the contract and for causing a
strike, he actually was in favor of the contract. Gottlieb said it
was Doyle’s fault that a person with a European accent had
made a threatening phone call to his wife. On December 6,
Gottlieb told Doyle that he was willing to sign the contract and
he asked Doyle for a copy. After Doyle supplied the contract,
Gottlieb signed it and gave it to the workers the next day.
Zloczewski testified that she got 10 threatening telephone
calls during the strike to the effect that she would be shot with a
8 Two of the three employees of the building are Yugoslavian, but I
must emphasize that there is absolutely no suggestion in the record that
the employees made the purported threatening telephone calls. No
witness testified that he or she recognized the voice of an employee
making any threats.
9 Gottlieb initially testified that he signed “the contract” and gave
“the contract” to Zilkic. Later, he maintained that he signed two copies
of the contract on December 7 and gave them both to Zilkic on the
same day.
DECISIONS OF THE NATIONAL LABOR RELATIONS 1258
gun if she did not sign the contract. These calls began after the
beginning of December and continued for a couple of weeks.
Zloczewski told both Gottlieb and her husband about the calls.
Her husband told her not to call the police because, he said,
“What can they do for you?”
Spataro testified that the strike began on December 4, 1996.
On Saturday, December 7, Spataro arrived at the picket line at
about 8 a.m. and Zilkic gave him a single, signed, collective-
bargaining agreement. Spataro told the employees that the
strike was over. Because Spataro needed two signed copies of
the agreement, one for the Union’s records and one to send
back to Austin Gardens after it was countersigned by the union
president, he asked the building superintendent to give another
copy of the agreement to Gottlieb and ask for his signature. On
Monday, December 9, Spataro saw the superintendent and was
given a second copy of the contract signed by Gottlieb. Spataro
denied that he ever threatened anyone by telephone and he
stated that he did not know anybody who had made threats.10
Zilkic, who has worked for Austin Gardens for 13 years, tes-
tified that the strike began on December 4. On Saturday, De-
cember 7, Zilkic was in front of a building wearing a picket
sign when Gottlieb came up to him and handed him a contract
printed on yellow paper. Gottlieb told Zilkic that he had a con-
tract and asked him to give the contract to Spataro. Gottlieb
said that Spataro thought that he did not want to sign the con-
tract but that he had indeed signed it. Zilkic denied that
Gottlieb said that he did not want to sign the contract, and he
denied that Gottlieb informed him that the contract was not
approved by the board and that he was to hold it until Babad
approved it. Zilkic was sure that Gottlieb gave him one con-
tract and that he was told to give it to Spataro. When Spataro
came to the picket line that day, Zilkic gave him the signed
contract and Spataro told the employees that the strike was over
and that they should go back to work.
Building Superintendent Ilijas Dervievic, who has worked
for Austin Gardens for 20 years, testified that the strike began
on December 4, 1996.11 On December 7, Dervievic testified,
Spataro asked him whether he had a spare copy of the collec-
tive-bargaining agreement because he needed a second signed
copy of the document. That day, Dervievic found a copy of the
agreement in his shop and took it to Gottlieb’s apartment where
he gave the document to Gottlieb’s wife and told her that
Gottlieb had to sign it. The next day, Gottlieb brought the
signed contract to Dervievic’s apartment and left it with Der-
vievic’s children. Eventually, Dervievic gave this contract to
Spataro.
2. Events after the contract signing
Gottlieb testified that on the evening of December 7 he tele-
phoned Babad and informed him that he had signed the collec-
tive-bargaining agreement. Babad replied that this was illegal,
that he had not consulted with the board, and that he would sue
Gottlieb. Then, Gottlieb telephoned Morris Tuchman, the at-
torney for Austin Gardens, and informed him that he had signed
the contract.
On Monday, December 9, 1996, Tuchman sent a letter to the
Union asserting that Gottlieb had given him an affidavit to the
effect that he had signed the contract because his life was re-
peatedly threatened and that he executed the agreement with the

10 Spataro does not have a Yugoslavian accent.
11 Dervievic is from Yugoslavia.
specific understanding that it was subject to board ratification.12
The letter went on to state:

Please be advised that the Board has not ratified the
agreement and the contract is therefore rejected. Please be
further advised that this office stands ready to negotiate
with your labor organization so that an acceptable contract
can be executed and ratified.

According to Doyle, Gottlieb said he had been threatened
with a lawsuit by Babad for signing the collective-bargaining
agreement. Babad also called Doyle and threatened to pull all
of his business from Doyle’s Employer because Doyle had
encouraged Gottlieb to sign the agreement.13 Babad told Doyle
that if the cooperative were going to sign a contract with the
Union, it should have remained part of the RAB because that
was a more favorable deal for the Employer than the independ-
ent contract that Gottlieb had signed. Pursuant to this conversa-
tion, Doyle caused the cooperative to join the RAB.
On January 9, 1997, Gottlieb received a copy of the collec-
tive-bargaining agreement signed by the union president. The
cover letter requested that all terms of the agreement be imple-
mented by the employer and informed Gottlieb that a grievance
had been filed on December 31, 1996, protesting the failure to
pay one of the employees since December 7, and protesting the
failure to implement the terms of the collective-bargaining
agreement. The grievance referred to in the January 9 letter
was actually a demand for arbitration which had been served on
the Employer.
According to the arbitrator’s opinion dated June 12, 1997,
Austin Gardens did not appear on two scheduled arbitration
dates and was found in default. On April 18, 1997, over the
opposition of the Union, the arbitrator granted Austin Gardens’
request to open the default and set the matter down for hearing
on June 5.14 Austin Gardens had argued to the arbitrator that a
reopening was proper because it was now represented by the
RAB and that time was needed to prepare a defense in the arbi-
tration case. However, Austin Gardens did not appear at the
arbitration on June 5; instead, it sent a letter stating that the
RAB was not authorized to represent it in the arbitration case.
The arbitrator once again declared Austin Gardens in default,
found a violation of the 1994–1997 contract and awarded back
pay to the three employees. The arbitrator noted that Austin
Gardens had “flagrantly failed to appear after receiving proper
notice” and had “intentionally [made] misrepresentations to the
Arbitrator who relied on them in his decision” to open the ear-
lier default.
3. Article V of the collective-bargaining agreement
Article V of the collective-bargaining agreement defines an
arbitrable grievance as. “Any dispute or grievance between the
Employer and the Union which cannot be settled directly by
them.” The agreement provides that the arbitrator’s award shall
be “final and binding upon the parties.”
B. Positions of the Parties
The General Counsel argues that the collective-bargaining
agreement is voidable because the threatening phone calls con-
12 No such affidavit was introduced at the instant hearing.
13 The nature of Babad’s business and of Doyle’s employment does
not appear in the record.
14 Austin Gardens consented to a new hearing date of June 5.
SERVICE EMPLOYEES LOCAL 32B-32J (AUSTIN GARDENS) 1259
stitute an intervening defect. The General Counsel urges that it
would be against public policy for the Union to benefit from the
unlawful threats against Gottlieb. The General Counsel asserts
that Gottlieb had no authority to bind the cooperative corpora-
tion. Citing the by laws of the Board, he concludes that
Gottlieb could sign the collective-bargaining agreement only if
authorized to do so by the board of directors and he states that a
majority of the board voted to against permitting Gottlieb to
sign the contract.
The General Counsel contends that the apparent authority of
Board President Gottlieb to sign the contract was timely re-
scinded before the Union could act to its detriment in reliance
on the signed document. Therefore, the contract was voided.
The General Counsel argues that because the Union did not
countersign a copy of the contract before December 9, the with-
drawal of Gottlieb’s authority was valid. The General Counsel
argues that the violation should not be deferred to the grievance
and arbitration procedure because the heart of the issue is
whether a contract existed between the parties. The General
Counsel concludes that the Union refused to bargain when
asked to do so by Austin Gardens.
Charging Party Austin Gardens argues that the contract exe-
cuted by Gottlieb on December 7, 1996, was withdrawn on
December 9 and that no valid contract exists because the Union
did not countersign the collective-bargaining agreement before
December 9. The Charging Party told the Union on December
9 that Gottlieb did not have board approval of the collective-
bargaining agreement and Gottlieb’s signing of the contract
was ultra virus [sic]. The Union knew that board ratification
was required and such ratification was never obtained. The
Charging Party argues that Gottlieb’s signature was obtained by
duress because he was threatened by anonymous telephone
calls.
The Union urges that the matter should be deferred to arbi-
tration, citing the broad arbitration clause in the collective-
bargaining agreement. The Union argues that Gottlieb, as
president of the board, had been negotiating with the Union for
a new collective-bargaining agreement. Although the Union
knew that he could not sign without checking with the board of
directors, the Union was entitled to rely on his delivery of a
signed contract as evidence that he was acting within his au-
thority. The Union asserts that it was not charged with making
independent inquiries concerning board actions, especially in
view of the fact that Gottlieb signed two copies of the contract
on two different occasions. The Union points out that the al-
leged threats have not been linked to any union agent and it
disputes that the contract was signed under duress.
C. Discussion and Conclusions
The General Counsel has not cited any cases which hold that
where the existence of the collective-bargaining agreement
itself is in issue, the Board should not defer to the arbitration
procedures of the contract. The Union cites Acquire v. Canada
Dry Bottling, 906 F.Supp. 819 (E.D.N.Y. 1995), for the propo-
sition that the question whether a contract was entered into
under duress is a question for the arbitrator. The definition of a
grievance in the collective-bargaining agreement quoted above
is broad and does not exclude the question whether the contract
was entered into under duress or whether the Union had notice
that Gottlieb had no authority to sign the contract. In the in-
stant case, Austin Gardens defaulted at the three arbitration
hearings which were held to decide whether it was in violation
of the 1994–1997 agreement. Had it appeared at the June 5
hearing, Austin Gardens could have argued that the contract
was obtained under duress and that the Union knew that Gott-
lieb was not authorized to sign it. Because Austin Gardens
failed to appear at the arbitration, those questions were not
presented to and considered by the arbitrator. There is no evi-
dence in the record that the hearing before the arbitrator was
not fair and regular, the contract itself provides for binding
arbitration and there is no evidence that the arbitrator’s decision
is repugnant to the Act. Therefore, this case should be deferred
to the arbitration provisions of the collective-bargaining agree-
ment. Spielberg Mfg. Co., 112 NLRB 1080 (1955).
I did not find that the case should be deferred to arbitration, I
would not find that the Union engaged in any violations of the
Act.
I do not credit Zloczewski that she received any threatening
telephone calls urging her to sign the contract. Zloczewski
testified that she received 10 threatening telephone calls begin-
ning in December and continuing for a couple of weeks. Even
if I accepted Gottlieb’s testimony that the strike began on De-
cember 1, it is clear that the strike ended on December 7. Thus,
even under the General Counsel’s view of the facts, the strike
lasted for 6 days. Zloczewski is thus highly inaccurate in her
recollection of how long the strike lasted and how long it took
for Gottlieb to sign the contract and end the strike. If Zloc-
zewski had in truth received calls threatening to shoot her with
a gun, she would have recalled the details of the timing of these
calls more accurately. Further, although Zloczewski claimed to
have received 10 calls, she only informed Gottlieb of one call,
another anomaly in her testimony. Someone who received 10
such calls would have informed Gottlieb, the one who ulti-
mately signed the contract, of more than one call. Indeed, it is
hard to imagine a person receiving 10 telephone calls threaten-
ing to shoot her with a gun who would not report such calls
each time they were received. This reasoning brings me to the
ultimate conclusion concerning Zloczewski’s testimony. When
asked the obvious question about her failure to inform the po-
lice concerning ten telephone calls threatening her life with a
gun over a period of several weeks, Zloczewski answered that
her husband had asked her what the police could do to help her.
This reply strains credulity to an absurd point. I cannot bring
myself to believe that any person would fail to report repeated
and specific death threats to the New York City Police Depart-
ment, an organization widely known to be efficient and vigor-
ous and which has achieved a marked decline in the local crime
rate. It is ludicrous to suppose that Zloczewski would not have
contacted the police and demanded that they investigate. I find
that Zloczewski’s testimony about threatening telephone calls
was fabricated.
For the same reasons, I do not credit Gottlieb that he re-
ceived six telephone calls threatening to shoot him and his fam-
ily. Gottlieb, a high school teacher and president of the coop-
erative board, is a man of education and substance. I do not
believe that he would have sat silent at home during a labor
dispute if he and his family had been threatened. Had it been
true that a caller with a Yugoslavian accent had repeatedly
threatened to shoot him if he did not sign the contract, Gottlieb
would have insisted that the police begin an investigation im-
mediately, given the ongoing labor dispute and the pickets in
front of Gottlieb’s residence who were yelling at him to sign
the contract. Instead of complaining to the police that his life
had been threatened six times, Gottlieb mentioned something
DECISIONS OF THE NATIONAL LABOR RELATIONS 1260
about a threatening call to Doyle, but he informed Doyle that
someone with a European accent had made a threatening call to
his wife.15 Since Gottlieb did not testify in this proceeding, the
question of what was said is unresolved. Gottlieb placed the
threatening calls on December 2 and 3, before the date the un-
ion witnesses gave as the start of the strike and well before the
December 7 date when he signed the contract. Thus, even
Gottlieb’s version of the facts does not support the picture of a
man impulsively driven by fear to sign a contract. Since the
testimony of the witnesses makes it clear that Babad was a
powerful man to be reckoned with in the cooperative’s affairs,
it is unbelievable that Gottlieb would not inform Babad of the
threats that were impelling him to sign the collective-
bargaining agreement. Finally, Doyle’s uncontradicted testi-
mony shows that Gottlieb wanted to sign the contract and that
the shareholder survey showed that there was great support for
executing the collective-bargaining agreement and ending the
strike. Thus, there were reasons for Gottlieb to sign the con-
tract when he did which were unrelated to the purported tele-
phoned threats. I do not credit Gottlieb that he received any
threatening telephone calls such as he testified to. I find that
his testimony was fabricated.
Having found that both Zloczewski and Gottlieb fabricated
testimony, I shall not rely on any of their testimony where it is
contradicted by more reliable evidence. I credit the testimony
of Spataro, Doyle, Zilkic, and Dervievic. Although Spataro and
Doyle did not have perfect recall of the events, this tends to
show that they had not fabricated their testimony. Doyle’s
demeanor was particularly impressive. Likewise, Zilkic and
Dervievic testified in a straightforward manner without reserva-
tion.
Having discredited Gottlieb and Zloczewski, and relying on
the testimony of Spataro, Doyle, Zilkic, and Dervievic, I find
the following:
Board President Gottlieb and Union Agent Spataro met to
discuss the contract in the summer of 1996. Gottlieb spoke to
Spataro about problems with the employees. Gottlieb took two
copies of the proposed contract and said that he would check
with the board of directors. In July 1996, Gottlieb informed the
shareholders at an annual meeting that he was very close to
signing the collective-bargaining agreement. A meeting of
board members was held on November 20, 1996. The record is
not clear that this meeting was attended by a majority of law-
fully elected directors of Austin Gardens and there is a dispute
whether any vote taken would be binding on the board. Babad
and his designated directors voted against signing the collec-
tive-bargaining agreement. Gottlieb and Doyle voted for the
contract. The Union struck Austin Gardens on December 4,
1996. Babad brought in temporary workers at least one of
whom menaced the tenants. During the strike, many of the
shareholders indicated that they favored signing the collective-
bargaining agreement and many shareholders blamed Gottlieb
for failing to sign the contract. On December 6, Gottlieb told
Doyle that he was willing to sign the agreement and Doyle gave
him a copy of it. On December 7, Gottlieb gave one copy of a

15 Gottlieb’s testimony that he spoke to a police officer about the
calls is irrelevant herein. Gottlieb did not say when he spoke to the
officer or what he reported. For aught that appears in the record, the
conversation with the officer could have taken place the day before the
instant hearing. If Gottlieb had made a real complaint, there would
have been an official police report which the General Counsel undoubt-
edly would have entered into evidence.
signed contract to Zilkic and asked him to give it to Spataro.
Gottlieb told Zilkic that although Spataro doubted that he
wanted to sign the contract, he had in fact signed it. As soon as
Spataro came to the picket line and was given the signed con-
tract, he ended the strike and told the employees to go back to
work. Spataro instructed Dervievic to give Gottlieb a second
copy of the collective-bargaining agreement to sign. Dervievic
dropped off a copy of the agreement at Gottlieb’s apartment
and the signed document was brought back to him on Decem-
ber 8. On the evening of December 7, Gottlieb informed Babad
that he had signed the contract. Babad threatened to sue
Gottlieb. Babad also called Doyle and threatened to injure his
employment relationship. On December 9, Tuchman wrote to
the Union informing it that the agreement had not been ratified
and that it was rejected. On December 31, 1996, the Union
filed a demand for arbitration for failure to adhere to the terms
of the contract. On January 9, 1997, the Union returned a coun-
tersigned copy of the collective-bargaining agreement to
Gottlieb and requested implementation of its terms. The Union
informed Gottlieb that one of the employees had not been paid
for a month. After defaulting twice on the arbitration, Austin
Gardens obtained another hearing and convinced the arbitrator
to set aside the default on the ground that the RAB was entering
the case on its behalf. However, Austin Gardens failed to ap-
pear at the reopened arbitration hearing and revoked the RAB
authority to represent it at the arbitration. The arbitrator found
that Austin Gardens had violated the 1994–1997 contract and
awarded back pay to the three employees.
As discussed above, I do not credit the testimony that
Gottlieb or Zloczewski received any threats in connection with
the signing of the collective-bargaining agreement. As a result,
I cannot find that the contract was signed under duress.
It is undisputed that in the summer of 1996 Gottlieb in-
formed Spataro that he had to check with the corporation’s
board of directors before signing the collective-bargaining
agreement. During the next few months, Gottlieb negotiated
with Spataro and informed him of developments, including the
fact that the result of the November 20, 1996 meeting was that
Gottlieb would not sign the contract. I find that the Union was
entitled to view Gottlieb as the representative of the board and
to rely on his statements and actions as being made on behalf of
the board: Gottlieb was the board president and had been the
cooperative corporation’s sole negotiator. When on December
7, after the strike had been underway for 4 days, Gottlieb deliv-
ered a signed contract to an employee on the picket line and
instructed him to give it to Spataro, the Union was entitled to
rely on Gottlieb’s action and to assume that he was acting
within the scope of his authority. The Union had no reason to
suspect that after a strike which was distressing to the share-
holders the president of the corporation had not finally received
the authority of his board to agree to a contract. The purpose of
the strike was to force the Employer to change its decision not
to sign the contract. When Gottlieb delivered a signed contract,
the Union was reasonable in assuming that Gottlieb had
checked with his board again and had been given a different
answer than in November. Had Gottlieb intended any limit on
his action in delivering the signed contract to the Union he
could have indicated this in writing on the document itself. I
find that on December 7 the Union was not made aware of any
limitations on Gottlieb’s apparent authority as president and
bargaining agent. Kasser Distiller Products Corp., 307 NLRB
899 (1992), enfd. 19 F.3d 644 (3d Cir. 1994); University of
SERVICE EMPLOYEES LOCAL 32B-32J (AUSTIN GARDENS) 1261
Bridgeport, 229 NLRB 1074 (1977). Instead, without any fur-
ther communication to the Union, Gottlieb saw that the pickets
were immediately removed from Austin Gardens and that the
men returned to work. The Union ended the strike in reliance
on the receipt of the signed collective-bargaining agreement.
Contrary to the General Counsel’s position that the Union did
not act to its detriment before Austin Gardens attempted to
revoke the contract on December 9, I find that the action of
removing the picket line and returning to work constituted a
major change in position. Having called a strike as a weapon in
its struggle to obtain a collective-bargaining agreement, the
Union’s action in ending the strike was indeed a most signifi-
cant act. Further, it is of no moment that the Union did not
return a countersigned agreement until 1 month after it received
Gottlieb’s signed copy. Once Gottlieb had delivered a signed
collective-bargaining agreement, he had signified his accep-
tance of the Union’s contract demands and Austin Gardens was
bound by the bargain he made. There is no requirement that the
Union countersign the contract. It is well established that tech-
nical rules of contract law do not control whether a collective-
bargaining agreement has been reached. Deluxe Poster Co.,
257 NLRB 45, 50 (1981); Ivaldi v. NLRB, 48 F.3d 444, 448
(9th Cir. 1995). Thus, on December 9, Respondent had no
lawful power to revoke the collective-bargaining agreement.
It would be inimical to the process of collective bargaining if
this employer were permitted to avoid honoring a collective-
bargaining agreement by the tactics it has employed. There is
apparently a dispute as to the composition of the board of direc-
tors and as to Babad’s power on the board. That dispute might
be subject to proceedings in the local courts. Yet the employer
wishes to have the benefit of its work force and, to that end,
Gottlieb was bargaining with the Union. If the Union could not
rely on Gottlieb’s apparent authority to sign the contract, it
might have to remain on strike until the threatened lawsuits
between Babad and his fellow board members were resolved,
or the employees would be relegated to working without a con-
tract for several more years. Neither of these alternatives fos-
ters labor peace.
CONCLUSION OF LAW
The General Counsel has not proved that the Respondent
Union engaged in any violations of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended16
ORDER
The complaint is dismissed.

16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.