Service Employees Local 32B-32J (Vaux Condominium)

National Labor Relations Board - Board Decisions

Nov 24, 1993

313 N.L.R.B. 267 (N.L.R.B. 1993)

267
313 NLRB No. 37
SERVICE EMPLOYEES LOCAL 32B–32J (VAUX CONDOMINIUM)
1 On June 29, 1993, Administrative Law Judge Eleanor Mac-
Donald issued the attached decision. The Charging Parties and coun-
sel for the General Counsel filed exceptions and supporting briefs.
The Respondent filed a memorandum of law in opposition to excep-
tions to which the Charging Parties filed a reply memorandum.
1 The record is corrected so that at p. 251, L. 13, the statement
is made by Sturm.
2 The assents list Park West Village Associates as the Owner and
Park West Management Corp. as the Employer. The instant com-
plaint states that Park West Management Corp. is an employer and
it is silent on the status of Park West Village Associates. Park West
Management Corp. is a subsidiary of Park West Village Associates;
when the buildings were converted to condominiums, it was Park
West Village Associates that assigned the union contracts to the new
condominiums. The evidence shows that Park West Village Associ-
ates and Park West Management Corp. are joint employers.
Local 32B–32J, Service Employees International
Union, AFL–CIO and The Vaux Condominium
and The Olmsted Condominium and The 392
Central Park West Condominium and The 400
Central Park West Condominium. Cases 2–CB–
14180, 2–CB–14181, 2–CB–14182, and 2–CB–
14183
November 23, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether the judge correctly
found that the Respondent’s request to arbitrate a
grievance concerning the layoff of the exterior security
guards at the above-referenced condominiums did not
violate Section 8(b)(3) of the Act.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Ruth Weinreb, Esq., for the General Counsel.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New
York, New York, for the Respondent.
Neal Korval, Esq. (Vedder, Price, Kaufman, Kammholz &
Day), of New York, New York, for the Charging Parties.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in New York, New York, on September 21,
1992. The complaint alleges that Respondent, in violation of
Section 8(b)(3) of the Act, sought to arbitrate a grievance
which would have the effect of compelling the four Charging
Parties to recognize the Union as the representative of a sin-
gle merged unit of building service employees and security
guards notwithstanding that the Charging Parties are not the
employers of the security guards. In the alternative, the com-
plaint alleges that if the Charging Parties are found to be a
joint employer with the employer of the guards, the demand
for arbitration seeks to compel a joint employer to recognize
the Union as the representative of a single, merged unit in-
cluding building service employees and security guards not-
withstanding that the units are separate. The Union denies
that it has violated the Act and asserts that it is lawfully
seeking to enforce a subcontracting clause of its collective-
bargaining agreement.
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 Respondent, and the Charg-
ing Parties in October 1992, I make the following1
FINDINGS OF FACT
I. JURISDICTION
It is undisputed, and I find, that the Vaux Condominium,
the Olmsted Condominium, the 392 Central Park West Con-
dominium and the 400 Central Park West Condominium are
employers within the meaning of Section 2(2), (6), and (7)
of the Act and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
Park West Village, a 7-building complex on the upper
west side of Manhattan, was constructed a number of years
ago and eventually came to be owned by Park West Village
Associates. Most of the buildings are 19 stories high. The
grounds include parking lots and tennis courts. The four
buildings which are relevant to the instant case were con-
verted to condominium ownership at various times, as is
more fully described below. The Vaux Condominium is lo-
cated at 372 Central Park West and the Olmsted Condomin-
ium is located at 382 Central Park West; these buildings are
adjacent to the other two buildings at issue herein which are
located at 392 and 400 Central Park West.
Prior to conversion to condominium ownership, the build-
ings were managed by Park West Management Corp., a sub-
sidiary of Park West Village Associates. Park West Manage-
ment Corp. provided management services to all seven build-
ings in the complex.
Park West Village Associates is a member of the Realty
Advisory Board on Labor Relations (the RAB), a manage-
ment association of residential building owners. The RAB
negotiates collective-bargaining agreements with the Re-
spondent Union, and Park West Village Associates has regu-
larly signed assents to the contracts.2 The assent form states
that the owner and employer assent to the terms of the col-
lective-bargaining agreement and agree to comply with the
obligations for membership in the RAB.
The successive collective-bargaining agreements with the
Union define the unit as ‘‘all classifications of service em-
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 At the hearing, all the parties agreed that ‘‘it’s a building by
building unit.’’ General Counsel did not offer proof to the contrary.
4 N.Y. Real Property Law, Art. 9-B, cited as N.Y. REAL PROP.
Sec. 339 (McKinney 1989).
5 Those who sign contracts to purchase units do not actually hold
a closing and take title until the condominium plan is declared effec-
tive.
6 The witness did not specify what year this was.
7 Concierge is the word for ‘‘an attendant at the entrance of a
building: DOORKEEPER; esp: a resident attendant in a French
building who oversees ingress and egress.’’ Webster’s Third New
International Dictionary (Merriam-Webster 1981).
ployees at each apartment building.’’ Each of the seven
buildings was considered a separate unit.3
For many years, each building had been serviced by a resi-
dent superintendent, a handyman, and four or five porters. In
addition, security was provided by uniformed employees who
patrolled the grounds of Park West Village; these exterior se-
curity patrol employees would enter the buildings if called to
deal with a problem experienced by a tenant. It is undisputed
that the exterior patrol employees were covered by the col-
lective-bargaining agreement and were part of the same unit
as the other employees who worked at Park West Village.
The complaint calls these employees ‘‘security guards’’ but
there is very little evidence as to their actual duties. In any
case, I am not called on to make a finding whether they are
guards under Section 9(b)(3) of the Act. General Counsel’s
witnesses testified that for many years there had been no
front door security in the buildings of Park West Village and
that each tenant had a key to the front door.
Beginning in June 1987, Park West Village Associates
sponsored the conversion of the four buildings to condomin-
ium status. This conversion was conducted pursuant to the
New York State Condominium Act.4 The Act provides gen-
erally that a purchaser of a condominium apartment owns the
unit in which he lives and owns a share of the land, struc-
tures, and facilities held in common with all other owners.
A board of managers, elected by the unit owners, is respon-
sible for the operation and maintenance of the condominium
property. When a property is first converted to condominium
ownership, the sponsor retains ownership of the units which
it has not sold to tenants or other buyers. Because a con-
dominium conversion plan can be declared effective after at
least 15 percent of the units have been sold to tenants, it is
apparent that for many years after that the sponsor may still
retain ownership of a majority of the units if sales are slow.5
In the instant case, the conversion to condominium status
was pursuant to a ‘‘noneviction plan’’ so that non purchasing
tenants could continue to occupy their apartments indefinitely
and they would continue to pay rent to Park West Village
Associates as the owner of their units. In fact, the documents
in evidence show that in April 1988, only 17 percent of the
combined total of apartments in the Olmsted and the Vaux
Condominiums were no longer owned by Park West Village
Associates.
It is apparent that in the case of the four buildings at issue,
Park West Village Associates continued as the owner of a
majority of the units for some time and, by virtue of its vot-
ing strength, it could have continued to control the board of
managers of each condominium building until such time as
it had sold over 50 percent of the apartments in each build-
ing. However, the offering plan of each building provided a
time beyond which the sponsor would no longer elect a ma-
jority of the board of managers, and in the case of the build-
ing at 392 Central Park West, the sponsor gave up control
of the Board at the first annual meeting.6 The record does
not indicate when Park West Village Associates ceased elect-
ing a majority of the board of managers at the other build-
ings.
The record shows that the Olmsted Condominium and the
Vaux Condominium conducted the first closings of apart-
ments with purchasers in June 1987. The first closings for
units in the 392 Central Park West and 400 Central Park
West Condominiums took place in January 1991. For pur-
poses of this decision, therefore, the Olmsted and Vaux con-
verted to condominium ownership in June 1987, and the 392
and 400 buildings converted in January 1991.
The offering plans for each of the four condominiums
specified that the newly established condominiums would re-
tain the firm of Brown, Harris, Stevens, Inc. as managing
agent for at least 3 years following the conversion to con-
dominium status. Brown, Harris, Stevens is related to
Helmsley Enterprises, Inc. in some fashion that is not ex-
plained on the record. Another related company, Helmsley
Spear, Inc. is the parent company of Park West Management
Corp. and is also related to Park West Village Associates. It
is agreed by the parties that Brown, Harris, Stevens is the
agent of each of the four condominiums for labor negotia-
tions and supervises the buildings’ operations and employees.
Before a condominium can be sold in New York State, the
State Attorney General must approve a lengthy and detailed
offering plan that adequately informs potential unit pur-
chasers of the terms of the sale. The offering plan of each
of the buildings specified that the condominium would hire
certain employees: the superintendent, a handyman, four jani-
tors, and four ‘‘security (door/lobby) personnel.’’ All but the
security (door/lobby) personnel were already on staff as em-
ployees of Park West Village. The projected budget filed as
part of the offering plan stated that all of these employees
were members of the Union. For the Olmsted and the Vaux,
the offering plan stated that the budget was based on the ex-
isting labor contract with a term ending April 1988, and for
the 392 and 400 Central Park West buildings, the budget was
stated to be based on the existing contract with an expiration
date of April 1991.
According to Ralph Walter, president of the board of man-
agers of the Olmsted Condominium, the people hired as ‘‘se-
curity (door/lobby) personnel’’ are now called ‘‘con-
cierges.’’7 These employees sit at the desk in the lobby to
intercept and receive people coming into the buildings and
then announce visitors to the apartments by means of an
intercom; the concierges scan the monitors which show all
the activity being captured by the various security cameras
throughout the area. The concierges also receive packages for
the tenants. The payroll timesheets maintained by Brown,
Harris, Stevens for each of the four condominiums show that
they paid the wages of condominium employees in titles such
as ‘‘superintendent,’’ ‘‘handyman,’’ ‘‘porter,’’ ‘‘concierge,’’
and ‘‘security.’’ The term ‘‘concierge’’ is used on the
records for three buildings and the term ‘‘security’’ is used
on the records of the Olmsted Condominium. I conclude that
the title concierge and the title security were interchangeable.
269SERVICE EMPLOYEES LOCAL 32B–32J (VAUX CONDOMINIUM)
8 The budget contained in the offering plan for the Olmsted Con-
dominium specified that $66,600 was to be paid to Park West Man-
agement for exterior security patrol which was to be ‘‘maintained at
the current level presently provided to the Building’’ of 4380 man
hours per year.
9 The record contains only the Assignment and Assumption exe-
cuted by the Olmsted. However, the offering plans for all four build-
ings, which are identical in their essential verbiage and organization,
indicate that the employees are covered by the union contract. The
projected budgets in each offering plan proceed on the basis of an-
nual contract wage increases, a sure indication that the condomin-
iums would be bound by the union contracts. Further, since the same
sponsor converted all four buildings and since the assumption docu-
ment would have been one of a myriad of required documents for
all four conversions, I shall assume for purposes of this decision that
the same assumption was agreed to by all four condominiums.
10 After a strike, a successor agreement had been reached with a
starting date of May 2, 1991.
11 The letters were actually addressed to Helmsley Spear, Inc., the
parent company of Park West Management Corp. and the actual
work location of the person who dealt with the condominiums on
behalf of Park West Management Corp.
The offering plan for each building specified that each
building would retain Park West Management Corp. to pro-
vide the ‘‘exterior security patrol’’ for at least 1 year after
the conversion to condominium status. The projected budget
stated costs for the exterior security patrol and the budget
notes included the information that these employees were
paid on the same basis as the interior employees, that is they
were subject to the union contract. After conversion to con-
dominium ownership, Park West Management billed each
condominium for the security services. According to Walter,
the exterior security patrol was not posted at any particular
building but rotated around the whole complex responding to
tenants’ calls inside the buildings.8 This was identical to the
situation prior to the conversion to condominium ownership.
On conversion of the buildings to condominium status,
that is after the first sale of a unit in each building, the
boards of the new condominiums signed agreements assum-
ing the union contract and Park West Village Associates as-
signed the contracts to the newly formed entities.9 The As-
signment and Assumption Agreements provided that Park
West Village Associates (Assignor), assigned the agreement
‘‘with respect to all building employees employed . . . at the
premises’’ and that the condominium (Assignee), ‘‘assumes
the performance of all of the terms . . . and hereby agrees
to (i) offer employment to all of the union employees which
are employed by the Assignor at the Premises as of the date
hereof, and (ii) perform all of the terms . . . as if Assignee
had signed the Agreement originally as the landlord named
therein.’’
Thereafter, as successive 3-year collective-bargaining
agreements were negotiated by the Union and the RAB, the
condominiums signed assents to the new contracts. On May
26, 1988, the Olmsted and the Vaux separately filed their as-
sents to the April 21, 1988, to April 21, 1991 contract. On
May 29, 1991, the four buildings, by now all converted to
condominium ownership, signed four separate assents to the
1991–1994 collective-bargaining agreement.10
Walter testified that the board of the Olmsted Condomin-
ium decided to terminate the contract with Park West Man-
agement Corp. because it was not satisfied with the exterior
security patrol services. Walter did not provide any details
concerning the dissatisfaction. Alan Mantell, president of the
board of managers of the 392 Central Park West Condomin-
ium, testified that in late 1991 he met with the presidents of
the three other condominiums and they decided that the con-
dominiums would jointly and simultaneously hire a new se-
curity company in order to realize economies of scale. How-
ever, Mantell stated that he did not know if the new com-
pany charged less than Park West Management for the exte-
rior guard patrols. On January 14 and 15, 1991, the four con-
dominiums sent letters to Park West Management Corp. ter-
minating ‘‘the Sponsor provided security service as of Feb-
ruary 29, 1992.’’11
The testimony of the witnesses shows that prior to sending
the letters of termination, Walter had informed Park West
Management Corp. that the contracts for external security pa-
trol would be terminated and Walter and the other condomin-
ium presidents discussed the layoff of exterior security patrol
employees with Park West Management. The presidents were
told that the union contract required advance notice for the
termination of employees. The minutes of the meeting of the
board of managers of the Olmsted Condominium held on
November 18, 1991, state that the proposal from Hall Secu-
rity has been accepted. ‘‘Starting date will depend on regula-
tions regarding union employees and their termination. Hall
Security service will include 2 guards/day shift; 3
guards/night shift (1 fixed post).’’ Walter testified that at the
meeting, the board members discussed the fact that Park
West Management Corp. had informed them that under the
union contract with the employees, a notification period in
advance of termination was required. Thus, it was not clear
when the contract with Hall Security would take effect.
Eventually, the condominiums gave Park West Management
45 days written notice of termination so that Park West Man-
agement could provide notice to the Union. Deborah Dowell,
the property manager at Brown, Harris, Stevens responsible
for managing the condominiums, also discussed the layoff of
employees with Park West Management Corp.
In February 1992, the condominiums entered into a con-
tract with Hall Security to provide the exterior security pa-
trol.
On January 26, 1992, Park West Management Corp. in-
formed the Union that the security department at Park West
Village would be reduced due to the decision by the four
condominiums to cancel their security contracts with Park
West Management Corp. The Union was later told that at
least six security personnel would be terminated as of March
1, 1992. Thereafter, in separate letters to each of the con-
dominiums, the Union requested arbitration pursuant to the
collective-bargaining agreement. The requests for arbitration
named the employer in each case as the individual con-
dominium. The requests stated:
The . . . contract requires that four weeks written
notice be given to the Union of any reduction in staff.
In addition, the contract requires that the grounds for
the reduction be submitted to the Union. This informa-
tion was not included.
It has been brought to our attention that the work
previously performed by security employees covered by
the collective bargaining agreement is now being per-
formed by employees of Hall Security who are not re-
ceiving the contractual wages and benefits required by
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 General Counsel’s brief states that the testimony shows that the
condominiums never discussed the layoff with Park West Manage-
ment Corp., but this assertion is contrary to the evidence and testi-
mony herein.
13 General Counsel states that the collective-bargaining agreement
provides that ‘‘a building becomes a new entity upon conversion.’’
The portion of the contract relied on by General Counsel, art. IX,
sec. 1 (d), deals with the timing of the required assent by newly es-
tablished condominiums and does not purport to establish rules gov-
erning units. The contract does not use the term ‘‘new entity,’’ and
I do not find merit in General Counsel’s reliance on this contract
clause.
the Local 23B–32J contract. It is the position of the
Union that the terminated employees be reinstated im-
mediately without loss of pay and that the employees
on the payroll of Hall Security must receive the Local
32B–32J wages and benefits.
The 1991 collective-bargaining agreement provides in arti-
cle II thereof for subcontracting. Relevant portions provide as
follows:
1. The Employer shall not make any agreement or
arrangement for the performance of work and/or for the
categories of work heretofore performed by employees
covered by this agreement except within provisions and
limitations set forth below.
. . . .
3. The Employer shall require the contractor to retain
all bargaining unit employees working at the location at
the time the contract was awarded and to maintain the
existing wage and benefit structure. . . .
The Employer agrees that employees then engaged in
the work which is contracted out shall become employ-
ees of the initial contractor or any successor contractor,
and agrees to employ or re-employ those employees
working for the contractor when the contract is termi-
nated or cancelled. . . .
If the contractor fails to comply with any agreement
with the Union covering the work which was contracted
out, the Employer shall be liable severally and jointly
with the contractor. . . .
4. This article is intended to be a work preservation
provision for the employees employed in a particular
building. . . .
B. Positions of the Parties
General Counsel takes the position that the employees of
each of the four condominiums constitute a separate bargain-
ing unit and that these units do not include the exterior secu-
rity patrol employees heretofore employed by Park West
Management Corp. General Counsel maintains that the Union
is seeking arbitration to compel the enlargement of each of
the bargaining units, or to compel the four employers to
apply their collective-bargaining agreements to nonbargaining
unit employees.
General Counsel maintains that the evidence shows that
Park West Management Corp. employed the exterior security
employees in a unit including all the service employees in
Park West Village. After conversion of four of the seven
buildings to condominium ownership, Park West Manage-
ment Corp. continued to employ the exterior security em-
ployees and was their only employer. Park West Manage-
ment Corp. decided to reduce the number of exterior security
patrol employees it employed and informed the Union of the
impending layoff. According to General Counsel, only Park
West Management Corp. had the authority and power to af-
fect the terms and conditions of employment of the exterior
security employees; the condominiums had no role in decid-
ing a layoff was necessary.12 General Counsel states that the
Union was aware that Park West Management Corp. was the
only employer of the exterior security patrol. General Coun-
sel relies on the fact that Brown, Harris, Stevens, Inc., the
managing agent for the four buildings after they converted to
condominium ownership, did not carry the exterior security
employees on its payrolls, and did not hire, fire, or discipline
them.
General Counsel asserts that the four condominiums do
not employ any security employees and that the concierges
are not security employees. Although General Counsel’s brief
states that when a tenant has a security problem, he contacts
the exterior security patrol and not the concierge, this spe-
cific question was not addressed at the hearing, and I cannot
find that a tenant does not contact the concierge is he has
a security problem.
General Counsel asserts that from the time the condomin-
iums were established, the units of condominium employees
have existed separate from the unit of Park West Manage-
ment employees. General Counsel maintains that the assents
signed in 1988 by the Vaux and Olmsted and the assents
signed in 1991 by the 392 and 400 Central Park West Con-
dominiums show that the condominiums established new and
separate units of employees with the consent of the Union.13
General Counsel denies that the assumption of the Park
West Village Associates contract by the condominiums
shows that the new condominiums were required to hire all
the Park West Village employees including the exterior secu-
rity patrol. General Counsel urges that by referring to ‘‘em-
ployees employed . . . at the premises,’’ the assumption ex-
cluded the exterior security patrol employees because they
were not stationed at a particular building but roamed from
one building to the next. General Counsel points out that the
offering plan for each condominium required that Park West
Management Corp. was to be hired to perform exterior secu-
rity patrol and that this is further proof that the individual
condominiums did not employ the security patrol employees.
Concluding that no employees of the condominium ever per-
formed exterior security work, General Counsel asserts that
the grievance does not have a lawful work-preservation ob-
ject.
The Union relies on article II of the collective-bargaining
agreement which regulates subcontracting of work ‘‘per-
formed by employees covered by this agreement.’’ The
Union argues that the external security patrol work was al-
ways covered by the agrement. The Union points out that
even though the condominiums have contracted out the per-
formance of exterior security patrols, they retain control over
the assignment of the work. According to the Union, the col-
lective-bargaining agreement permits subcontracting but only
in accordance with its specific terms. These terms include the
payment of the contractual wages and benefits, although
there is no requirement that the new subcontractor sign the
contract.
271SERVICE EMPLOYEES LOCAL 32B–32J (VAUX CONDOMINIUM)
14 This occurs in various ways not necessary to describe here.
The Union points out that the collective-bargaining agree-
ment provides that employees performing security work are
part of the unit. The Union argues that this recognition can-
not be attacked by any charge filed more than 6 months after
April 21, 1991, the effective date of the contract. Even if the
charge is timely, the Union urges that security work is fairly
claimable by the Union because the condominiums control
the assignment of security work.
Citing Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983), the Union argues that filing a grievance and request
for arbitration in this instance cannot be found to violate the
Act. The grievance does not seek an illegal objective because
the contract provision sought to be enforced does not violate
Section 8(e). The Union is not seeking jurisdiction over the
work assignment herein. Further, according to the Union,
there is a reasonable basis under the law and the contract for
the grievance.
The Union urges that under NLRB v. Burns Security Serv-
ices, 406 U.S. 272 (1972), the condominiums are successors
who have purchased the stock and assets of the predecessor
and are thus bound by all the terms of the predecessor’s col-
lective-bargaining agreement with the Union.
Finally, the Union contends that it need not prove that its
arguments ‘‘are absolutely meritorious,’’ only that there is a
reasonable basis in law for pursuing the grievance.
The Charging Parties argue that the Union is seeking to
force the condominiums to cease doing business with Hall
Security. This violation is different from the one alleged in
the complaint by the General Counsel and, of course, I shall
make no finding respecting it.
C. Discussion and Conclusions
The General Counsel’s theory of the case is simple; the
Union violated Section 8(b)(3) by seeking to arbitrate its
grievance over subcontracting of the outside security patrol
work. The demand for arbitration sought an unlawful result,
namely, the merging of hitherto separate bargaining units. In
order to find a violation herein, I must find that there were
indeed historically separate bargaining units. If I find that no
such separate units were established and recognized, then I
cannot find that the Union violated the Act as alleged by the
General Counsel. If the evidence does not show that the con-
dominiums and the Union agreed to units excluding exterior
security patrol employees, then it would not be unlawful for
the Union to pursue a demand for arbitration seeking rem-
edies under the collective-bargaining agreement with respect
to the subcontracting of exterior patrol work.
The facts recited in the earlier part of this decision show
that in the past all employees who performed the work at
Park West Village were employed by Park West Village As-
sociates and Park West Management Corp. Some of these
employees provided an exterior security patrol and responded
to tenant concerns inside a building when requested to do so.
There was no security at the front doors of the buildings to
keep unauthorized persons from entering. Instead, the doors
were locked and each tenant had a key to the front door. The
collective-bargaining agreement defined the unit in terms of
employees ‘‘at each apartment building’’ and each of the
seven buildings was considered a separate unit. In June 1987,
the Olmsted and Vaux condominium plans became effective
and Park West Village Associates began selling units to indi-
vidual tenants. For some time, Park West Village Associates
owned the majority of units in each of these two buildings
and elected the majority of the board of managers of each
building. The condominiums retained all the interior employ-
ees on their respective payrolls and hired ‘‘security
(door/lobby) personnel’’ who were carried on the payrolls as
either ‘‘security’’ or ‘‘concierge.’’ The condominiums con-
tracted with Park West Management Corp. to provide exte-
rior security patrols. In January 1991, the process of sales of
condominium units was repeated for 392 and 400 Central
Park West. During the entire time from June 1987 to Feb-
ruary 1992, all the employees at Park West Village continued
to be paid pursuant to the Union’s collective-bargaining
agreement whether they were on the payrolls of the con-
dominiums or of Park West Management Corp.
General Counsel’s theory is that on the beginning of the
condominium sales for each building, that building became
a different unit from the one it had been before. Because
each building did not pay exterior patrol employees on its
own payroll but instead contracted for the exterior security
work, General Counsel urges that the Union and each build-
ing had therefore agreed that security employees would
henceforth be excluded from the unit. As part of this argu-
ment, General Counsel urges that the security (door/lobby)
personnel mentioned in the offering plans and hired by each
condominium are not security employees because they are
now called ‘‘concierges.’’ I note that on the payroll of the
Olmsted condominium, these employees are indeed listed as
security. However, it is immaterial what these employees are
called or whether they are guards under the Act. The fact is,
they are described as providing security by the legal docu-
ments that were required for the condominium conversions,
and the evidence shows that they do indeed provide security.
The so-called concierges sit at a desk in the lobby of the
building to intercept and receive people entering the building
and announce the visitors to tenants. They also scan monitors
connected to building security cameras. It is a matter of com-
mon knowledge and thus may be made a matter of adminis-
trative notice, that residents of buildings in Manhattan are
subject to having their apartments broken into and are subject
to being mugged and robbed in the hallways and elevators
of their buildings. A locked door provides very little security
because it may be forced and because tenants often unwit-
tingly admit criminals thinking they are mere visitors.14 Any
employee who sits in a lobby is there to prevent uninvited
strangers from entering a building and engaging in criminal
behavior. The security (door/lobby) personnel are clearly
there to question each stranger entering a building and they
use an intercom so that tenants can inform the lobby whether
the stranger is known to them and should be permitted to
enter. Further, the purpose of scanning the security cameras
is not to satisfy the curiosity of the concierges nor to keep
them from being bored: the security cameras are there to pro-
vide security by alerting the concierges to suspicious sights
in areas of each building. I find that when it hired security
(door/lobby) personnel, sometimes called concierges, each
condominium hired employees who provide security to ten-
ants. Thus, at all times, the units herein included employees
who provided security and it cannot be concluded that the
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 I find no significance in the fact that the condominium offering
plans and budgets show that door/lobby security employees would
be on the payroll but that the exterior security patrol would be ob-
tained by contract with Park West Management. The offering plans
clearly show that the condominiums were obligated to supply the
same exterior security patrol services to tenants as heretofore. Noth-
ing in the offering plans shows that the condominiums would never
employ exterior security employees in the future; the plans show
only that a contract was to be entered into with Park West Manage-
ment.
16 The grievance does not seek that the exterior patrol work be
given to a company that has a contract with the Union nor does it
ask that Hall Security sign a contract with the Union. The union de-
mand tracks the language of the contract which requires existing em-
ployees at the location to be retained at the existing wages and bene-
fit structure.
Union and the condominiums agreed to units which did not
include security employees.
As to General Counsel’s argument that the Union and the
condominiums agreed that the units would not include exte-
rior security patrol employees, I do not find that General
Counsel has proven this contention. The mere fact that the
four condominiums contracted for the performance of exte-
rior security services does not prove that the unit was
changed; the Union viewed the situation as a subcontracting
situation under the collective-bargaining agreement.15 The
language of the contract which refers to the unit as including
‘‘all employees at each apartment building’’ does not by its
terms exclude security employees who circulate on patrol.
The collective-bargaining agreement does not specify that
unit employees must be assigned to a specific building loca-
tion as a fixed post; if it did, the exterior security patrol em-
ployees employed by Park West Village Association before
conversion to condominium ownership would not have been
covered by the contract, a result contrary to the evidence
herein.
Further, the assumption agreement provided that the new
condominiums would ‘‘offer employment to all of the union
employees which are employed by the Assignor at the Prem-
ises . . . and perform all of the terms.’’ This language does
not specify that the employees must be ‘‘stationed’’ at each
building as General Counsel urges. The term ‘‘employed
. . . at the Premises’’ is broad enough to encompass a secu-
rity patrol outside a building.
Although I am assuming for purposes of this decision that
all four condominiums, and not just the Olmsted, signed the
assumption agreement, my conclusions would be the same
absent any written assumption agreement. It is clear that each
of the condominiums, as successor employers, adopted and
assumed the collective-bargaining agreement. Each con-
dominium offering plan contained the information that the
employees were covered by the union contract and the budg-
et was predicated on continued payment of Union wages and
benefits. All the record evidence and the arguments of the
parties show that the condominiums considered themselves
bound by the current collective-bargaining agreement at the
time of conversion to condominium ownership. NLRB v.
Amateyus, Ltd., 817 F.2d 996, 998 (2d Cir. 1987), enfg. sub
nom. Volk & Huxley, 280 NLRB 219, 226 (1986). The
Union urges that under NLRB v. Burns Security Services,
supra, the condominiums are bound by virtue of their pur-
chase of the stock and assets of the predecessor. However,
I need not consider that argument in view of my finding that
the condominiums, by their actions, adopted and assumed the
union contract. Moreover, the record is not complete to the
extent of permitting a finding concerning the stock and asset
purchase.
It is clear on the record before me that the condominiums
retain the right to control the work of providing an exterior
security patrol. Neither the General Counsel nor the Charging
Party have argued that the condominiums, if they saw fit,
could not resume providing exterior security patrols using
employees on the condominiums’ payrolls instead of employ-
ees on the payroll of an outside contractor.
General Counsel concedes that under Bill Johnson’s Res-
taurants v. NLRB, 461 U.S. 731 fn. 5 at 737 (1983), the
Board may not enjoin the Union’s pursuit of arbitration
under the collective-bargaining agreement unless the arbitra-
tion has an objective that is illegal under Federal law. Gen-
eral Counsel urges that in the instant case, the merger of two
separate units is the unlawful objective. The cases relied on
by General Counsel to support the view that the Union and
the condominiums had agreed to units excluding exterior se-
curity patrol employees and that the Union is now unlawfully
attempting to merge the security employees into the con-
dominium units by its demand for arbitration are clearly dis-
tinguishable. In Electrical Workers IBEW Local 323 (Active
Enterprises), 292 NLRB 305 (1979), the evidence supporting
the finding of separate units was the signing by the employer
and the union of two separate contracts with different expira-
tion dates for employees in different titles with different du-
ties and different rates of pay. In the instant case, the con-
tracts with the condominiums merely state that all employees
at each building are included in the unit and the Union took
no action inconsistent with its position that it has always
claimed the work of the exterior security patrol as part of the
unit. Service Employees Local 32B-32J (Allied Maintenance
Corp.), 258 NLRB 430 (1981), is distinguishable on the
same grounds: the Union in Allied took actions to show that
it was bargaining for employees in two separate units such
as separate negotiations, a strike for a contract in one unit,
and agreement to a contract for one unit with implementation
of some of the terms. In Chicago Truck Drivers (Signal De-
livery Service), 279 NLRB 904 (1986), the union had bar-
gained for years with different employers for four different
contracts with different seniority lists covering different loca-
tions. In both Teamsters Local 952 (Pepsi-Cola Bottling
Co.), 305 NLRB 268 (1991), and Teamsters Local 776 (Rite
Aid Corp.), 305 NLRB 832 (1991), the Board itself had pre-
viously found that separate units existed. In the instant case,
the Board has not issued a unit determination that exterior
security patrol employees are excluded from the units of con-
dominium employees. Finally, Teamsters Local 705 (Emery
Air Freight), 278 NLRB 1303 (1986), involved a violation
of Section 8(b)(4)(ii)(B) of the Act, including picketing and
striking to force an employer whose employees had never
done the subcontracted work to cease doing business with a
subcontractor who was not under contract with the striking
union. The complaint does not allege a violation of Section
8(b)(4) of the Act and the Union here does not demand that
the condominiums cease doing business with Hall Security.16
It should be noted that a decision that the Union has not
violated the Act as alleged by General Counsel in no way
273SERVICE EMPLOYEES LOCAL 32B–32J (VAUX CONDOMINIUM)
17 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
decides the merits of the Union’s grievance. It is up to the
arbitrator to decide what the contract requires and whether it
has been violated. The instant case only decides whether the
Union has unlawfully sought to merge two separate bargain-
ing units by means of a demand for arbitration. I have found
herein that the Union and the condominiums did not, as
urged by General Counsel, agree to exclude the exterior se-
curity patrol employees from the existing units.
CONCLUSIONS OF LAW
The General Counsel has failed to prove that the Union
engaged in any violation of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The complaint is dismissed.