Tilden Arms Management Co. And Toby Estates, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1111 (N.L.R.B. 1985)

TILDEN ARMS MANAGEMENT CO. 1111
Chaim Babad , Usher Babad , Chaim Schweid, Baruch
Nathan Halberstan, LSM Management (Bernat
Steinmetz, General Partner), and Sherman Man-
agement Co. (Emanuel Steinmetz , General Part-
ner), a co-partnership , d/b/a Tilden Arms Man-
agement Co . and Toby Estates, Inc., a Single
Employer and Local 32B-32J, Service Employ-
ees International Union, AFL-CIO. Case 29-
CA-9955
sors, and assigns, shall take the action, set forth in
the Order.
Steven M. Swirsky, Esq., of Brooklyn, New York, for the
General Counsel.
Morris Tuchman, Esq.,,of New York, New York, for'the
Respondent. -
Ira A. Sturm, Esq., of New York, New York, for the
Charging Party.
30 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 14 February 1985 Administrative Law Judge
Robert W. Leiner issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed cross-exceptions and a
supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this- proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Chaim
Babad, Usher Babad, Chaim Schweid, Baruch
Nathan Halberstan, LSM Management (Bernat
Steinmetz, General Partner), and Sherman Manage-
ment Co. (Emanuel Steinmetz, General Partner), a
co-partnership, d/b/a Tilden Arms Management
Co. and Toby Estates, Inc., a Single Employer,
Brooklyn, New York, its officers, agents, succes-
1 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
In adopting the judge's conclusion that the Respondent discnminatonly
refused to hire three employees, we do not rely on the statement in sec
III of his decision, specifically par 4 of the subsection entitled "Respond-
ent's Failure to Hire Boykin, Tobin, and Baynes," that the Respondent
would not have violated the Act had it offered the employees lower
wages "even with union animus " We similarly do not rely on his sugges-
tion in the subsequent paragraph that a deliberately low wage offer to
discourage employees from working for the Respondent is not unlawful.
In sec III of his decision , specifically par. 1 of the subsection entitled
"The Testimony of Cave Tobin and Chaim Babad," the judge madvert-
ently referred to "Babad" rather than "Tobin" in describing their conver-
sation . The corrected sentence reads "Babad told Tobin that he was
going to buy the 73-20 building and asked Tobin how long he had been
working in the building "
DECISION -
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This
proceeding was heard in Brooklyn and New York, New
York, on July 11 and 12, 1983. Based on a charge filed
by Local 32B-32J, Service Employees International
Union, AFL-CIO, the Charging Party (the Union), on
September 10, 1982, and served by certified mail on Re-
spondent, as more fully described infra, on the same date,
the Regional Director for Region 29 issued a complaint
and notice of hearing on October 25, 1982, alleging that
Respondent violated Section 8(a)(1), (3), and (5) of the
Act by unlawfully bargaining directly and individually
with employees;- by offering' them substantial sums of
money to induce them to resign from their employment;
by discharging and failing and refusing to reinstate three
named employees; and by engaging in the aforesaid con-
duct for the purpose of undermining the Union and de-
stroying its majority status among such employees. Re-
spondent filed a timely answer admitting various allega-
tions of the'complaint, denying others, and denying the
commission of any unfair labor practices.
All parties at the hearing were represented by counsel,
were given full opportunity to participate, to introduce
relevant evidence, to examine and cross-examine - wit-
nesses, to argue orally on the record, and to file briefs.
After the close of the hearing, Respondent and Charging
Party submitted briefs which have been carefully consid-
ered. On the basis of the entire record and from my ob-
servation of the demeanor of the witnesses as they testi-
fied, I make the following
FINDINGS OF FACT
1. JURISDICTION
At the hearing, Respondent withdrew its denial and, as
I stated at the hearing, I would find by operation of law
that it thereby admitted, that Tilden Arms Management
Co. (Tilden) is a co-partnership composed of Chaim
Babad, Usher Babad, Chaim Schweid, Baruch Nathan
Halberstan, LSM Management (a limited partnership ,in
which Bernat Steinmetz is general partner), and Sherman
Management Co. (a limited partnership in which Eman-
uel Steinmetz is general partner ), all co-partners, doing
business under the trade name and style of Tilden Arms
Management Co. The complaint further alleges, and Re-
spondent admits, that, at all material times , Tilden has
maintained its principal office and places of business at
284 Hewes Street, Brooklyn, New York, and in an apart-
ment building located at 73-20 Austin Street, Forest
276 NLRB No. 117
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hills, in the city and State of New York, where Tilden,
at all material times, continuously engaged in providing
apartment building management services and related
services. ; -
With regard to the commercial operations of Tilden,
Respondent denied the complaint allegation that during
the year prior to issuance of complaint, a representative
period of Tilden's annual -operations, Tilden 'derived
from the operation and management of its buildings gross
revenues in excess of $500,000. Rather, the parties re-
ferred to and stipulated- to a document (Jt. Exh. 1),
which recited the commerce facts on which this allega-
tion is based. That stipulation will be discussed below.
The complaint alleged, and Respondent admitted, that
during the above-past year, prior to. the issuance of com-
plaint, Tilden, in the course and -conduct of its business,
purchased and caused to be'transported to the aforesaid
Forest Hills apartment - building (73-20 Austin Street),
heating oil and other goods and materials valued in
excess of $30,000, of which goods and materials valued
in excess of $30,000,were transported and delivered to it,
and received from, other enterprises, located in the State
of. New York, each of which other enterpnses,had re-
ceived the. said goods and materials in interstate com-
merce directly from States of the United States other
than the State in which it was located.
Further, Respondent admits the allegations that Toby
Estates Inc. (Toby) is, and has been at all material times,
a New York corporation and that Tilden and Toby (col-
lectively Respondent) are, and have at all material times
been, a single integrated enterprise engaged in providing
apartment building management and related services.
Respondent denies, however, that at any material time
herein, Respondent, has,, been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act. .
At the hearing, the parties jointly introduced the
above document (Jt. Exh. 1), a document listing six-part-
nerships in which Chaim Babad.is the general manager
and chief -operating officer of each partnership, each of
which partnership was engaged in the management of
real estate, whose annual gross income and names were
as follows: (1) J.R.R. Realty, $410,000; Fort Manage-
ment, $270,000; Hester Management, $70,000; Town
Management, $433,000; G & B Management, $100,000;
and Shore Town Management , $600,000.
Hester Management, with annual gross revenue of
$70,000, is owned by Chaim' Babad with a 30-percent in-
terest, and the Emanuel Steinmetz family with a 70-per-
cent interest. G & B Management, with $100,000 annual
gross income; is owned 50 percent by Chaim Babad and
50 percent by LSM Management. The stipulation shows
that LSM Management is a-partnership composed of the
Steinmetz' family other than Emanuel Steinmetz. In
Hester Management, the Steinmetz' family was included
but with the addition of'Emanuel Steinmetz. Finally,
Shore Town Management, with an annual-gross income
of $600,000, shows Chaim'Babad as the general and man-
aging partner, with: a-13=1/3 percent interest, LSM Man-
agement, 33-1/3 percent, Emanual Steinmetz, 4-2/3 per-
cent, and the balance to a 100 percent by members of the
Steinmetz family, -all of whom are' principals in LSM
Management or Sherman Management Co. The stipula-
tion shows that, Sherman Management Co. is a'partner-
ship comprised of all the members of LSM Management
but with Emanuel'Steinmetz in addition.
Lastly, J.R.R. Realty, with annual gross income of
$410,000 is owned 84 percent by Chaim Babad,'a general
manager , and chief operating manager, LSM Manage-
ment and Sherman Management.
It therefore is quite clear that J.R.R. Realty (owned by
Babad and the Steinmetz family), Hester Management
(owned by Babad and the Steinmetz family), G & B
Management (owned by Chaim Babad and LSM Man-
agement, the latter 30 of which is the Steinmetz family),
and Shore Town Management (with $600,000 annual
gross income owned by Chaim Babad, LSM Manage-
ment, and the Steinmetz family), comprising a total of
over $1 million in annual gross income, are all enter-
prises owned and managed either individually or by part-
nerships controlled by Chaim Babad and the Steinmetz
family either directly or through LSM Management or
Sherman Management and all of them are partnerships
engaged in the same business, with Chaim Babad being
the general manager and chief operating officer of -each
of the investing` partnerships.
There is no dispute that under the Board rule in Park-
view Gardens, 166 NLRB 697 (1967), the Board's_ stand-
ard for asserting jurisdiction over apartment house oper-
ations is gross revenue of $500,000 or more. It is admit-
ted that Tilden and Toby constitute a single intergrated
enterprise and that Tilden is a co-partnership, inter alia,
consisting of Chaim Babad, LSM Management, and
Sherman Management. If the constituent parts of Tilden,
particularly relating to the operations of Chaim Babad,
Sherman Management, and LSM Management are joined
together, then Tilden is necessarily the possessor of part-
ners in the same business, operating different buildings,
where the annual gross income of the conglomerated
partnerships exceeds $1 million per year. _
There is no question that the Board has found that in
the case of the existence of a number of ownership enti-
ties operating in' the apartment housing industry, the
Board will combine 'their total gross operating revenues
to arrive at a figure in excess of $500,000 in receipts in
certain situations . In the above partnerships, they all own
apartment buildings in New York_ City. Babad is the
manager of,all the partnerships and buildings; the .single
legal address of these partnerships, according of the stip-
ulations , as 284 Hewes Street, Brooklyn, and Babad the
chief operating officer of each and controls the hiring
and firing of employees as well as the operations of man-
agement. In addition, they all have similar or the same
ownership and control and Babad has the right, and ex-
ercises the right,. to transfer employees from one partner-
ship building to' another as the record will further de-
scribe.
I.therefore find that the six partnerships and particular-
ly LSM Management and Sherman Management , are en-
tirely interrelated in ownership, operations, management,
TILDEN ARMS MANAGEMENT CO.
control of labor relations, i and in effect, function as a
single enterprise, with Babad -as its chief operating man-
ager, which operates on capital supplied by himself and
the Steinmetz' family either directly or through LSM
Management and Sherman Management,. In view of the
recent Board holding in J.R.R. Realty Co., 273 NLRB
1523 (1985),2 cf. Arlington Ridge Development Co., 203
NLRB 787 (1973), I have no hesitation in integrating
their annual receipts and find that they have annual oper-
ating income in excess of $1 million; that they are operat-
ed as a single enterprise in the real estate operations busi-
ness in New York City; and that their combined gross
revenues indicate that, as a single enterprise, they meet
the Board's standard in Arlington Ridge. I therefore con-
clude that Tilden Arms Management Co. has revenues,
through Chaim Babad, the above individuals, and the
above partnerships, in excess of $500,000 and meets the
Board's jurisdictional requirements for the assertion of
jurisdiction over each and every individual, partnership,
and corporation described above. I therefore find that
Tilden Arms Management and Toby Estates, as admit-
ted, constitute a single employer and is an employer en-
gaged in commerce within the meaning of -Section 2(2),
(6), and (7) of the Act. I further find that the Board's
$500,000 discretionary standard is supported by the statu-
tory interstate standard of $30,000 of annual indirect
inflow of oil, as admitted in the pleadings.
II. THE UNION AS THE LABOR ORGANIZATION
The complaint alleges, Respondent' admits, and I find
that Local 32B-32J, Service Employees International
Union, AFL-CIO is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges, and Respondent admits, that a
unit of all service employees of Respondent, employed at-
its Forest Hills apartment building (73-20 Austin Street),
exclusive of all office clerical employees, guards and su-
pervisors as defined in Section 2(11) of the Act, consti-
tutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act. The complaint also alleges, and Respondent admit-
ted at the hearing, that until October 20 , 1981, an organi-
zation known as 73-20 Austin Street Realty Co. (Austin
Realty), owned and operated the six-story apartment
house building located at 73-20 Austin Street, Forest
Hills, New York, and employed service employees de-
scribed in the above-admitted appropriate- unit . The com-
plaint alleges, and Respondent further admitted at the
hearing, that since in or about 1955 and at all times mate-
nal thereafter Austin Realty had recognized the Union as
the exclusive collective-bargaining representative of the
i These four integrating elements are the findings upon which the
Board and courts ordinarily rely for the conclusion of a "single integrat-
ed employer " Watt Electric Co, 273 NLRB 655 (1984), and cases cited
- 2 J R R Realty , alone, with annual operating revenue of $410,000, is
owned, as above noted , by the three individual Respondents herein
Babad , LSM Management , and Sherman Management Shore Manage-
ment , with $600,000 annual income is owned by Babad, LSM, and the
Steinmetz family.
employees in the above appropriate unit, such recogni-
tion being embodied in successive collective-bargaining
agreements between Austin' Realty and the Union, the
most recent of which was effective from April 21, 1979,
to April 20, 1982. The collective-bargaining agreement
requires, pursuant to a lawful union-shop clause, unit em-
ployees to become and remain union members. There is
no dispute; and I find, that the three 'employees herein
(Tobin, Baynes, and Boykin) were, at all material times,
union members. Further, the complaint alleges, and Re-
spondent admits, that about September 25, 1981, Austin
Realty sold this Forest Hills apartment building to a pur-
chaser by the name of Henry Moses.
However, Respondent denies sufficient information or
knowledge to form a belief with regard to the further al-
legation that about October 20, 1981, Moses signed an
agreement to be bound by the. collective- bargaining
agreement between Austin Realty and the Union, con=
cerning the above unit. In support of this allegation, the
General Counsel introduced in evidence (G.C. Exh. 3)
the contract of sale between one Irving G. Weber
(Austin Realty) and Henry Moses in which (par. 38)
Moses agreed "to accept title to the Premises subject to
any union service and maintenance contracts." Although
counsel for Respondent asserted, and General Counsel -
did not deny, that there is currently an arbitration pro-
ceeding between Weber and Moses regarding Moses' ob-'
ligation to observe the union collective-bargaining agree-
ment, during his tenure as owner of the premises, I am
constrained, on- the basis of' the evidence submitted, to
find that Moses, the owner of the building through April
20, 1982, was bound by the collective-bargaining agree-
ment . Indeed, the uncontradicted testimony of Union
Business Agent Ernest Castro was that the Union re-
ceived from Moses' contributions under the contract to
all of the contractually specified pension and other funds
as well as the dues checkoff; that all the wage rates and
other provisions under' the contract were in full force
and effect up through April 20, 1982, and that the con-
tract was observed by Moses. In the absence of any con-
trary evidence, I conclude that, for purposes of the in-
stant proceeding, ' Moses was bound by the collective-bar-
gaining agreement with the Union up through April 20,
1982.3
The complaint alleges , and Respondent admits, that on
April 20, 1982, Moses sold the Forest Hills apartment
building to Respondent, Toby Estates, Inc., and that on
the same day, Toby transferred title to the premises to
Tilden. As above noted, Respondent admitted and I have
found that Tilden and Toby constitute a single integrated
3 Actually the binding nature of any contract is not a finding necessary
to the resolution of the underlying issues herein concerning Respondent's
obligation to bargain Indeed, all that is necessary is to find, as I do infra,
that the three employees herein through April 20, 1982 , were union mem-
bers, that they were employed in the above, admittedly appropriate unit;
that they constituted a majority in the unit , that the Union was their col-
lective-bargaining representative, and that Respondent was the successor
in the employing industry NLRB v Burns Security Services, 406 U S. -272
(1972) The alleged successor may not avoid that status by unlawfully re-
fustng 'to hire the predecessor's unit employees, Love's Barbecue Restau-
rant, 245 NLRB 78 (1979) - -
1114, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enterprise engaged in apartment building management
and related services.
Whereas Respondent denied that on April 20, 1982,
Toby "transferred title" to the premises to Tilden, the
parties entered into a stipulation with regard to the trans-
action by which Toby, which admittedly purchased the
premises on April 20, 1982,,from Moses, transferred its
interest to Tilden on that date. Pursuant to the stipula-
tion of the parties with regard to this transaction (as al-
leged in par. 15 of the complaint) it was agreed that on
April 20, 1982, a deed was executed transferring the title
to the premises from Moses to Toby Estates, Inc.; and
that on the-same day, April 20, 1982, a deed was execut-
ed from Toby Estates, Inc. to Tilden conveying the
premises. It was further stipulated that on May'10, 1982,
the deed from Toby Estates, Inc. to Tilden was recorded
and on that date the transfer taxes were paid. On the
basis of this stipulation, I conclude that, for purposes of
the National Labor Relations. Act, the deed from Toby
Estates, Inc. to Tilden conveying the property to Tilden
on April 20, manifested-the effective date of the transfer
of ownership rather than on May 10, when.the deed was
recorded and the transfer taxes paid. Moreover, under
the facts as shown below, and in the face of Respond-
ent's admission that Toby and Tilden constitute a single
integrated employer, I would conclude that all necessary
conveyance to Tilden had occurred upon the admitted
initial transfer, on April 20, 1982, from Moses merely to
Toby Estates, Inc. The niceties of realty conveyancing
cannot interfere with the proper enforcement of the Act
with regard to the actual possessors of power, both legal
and actual, over the premises and the employees therein.
However, even legally, as above noted, there was an
April 20, 1982, conveyance from ' Moses to Toby Estates
and from Toby Estates to Tilden. The date of that con-
veyance, rather than, as contended by Respondent, the
date of recording or*the payment of transfer taxes, estab-
lishes the date of Tilden's dominion and control over the
- property and the employees therein.
Lastly, although the complaint alleges, and Respond-
ent denies, that on April 20, 1982, Respondent com-
menced operation of the Forest Hills apartment building
and engaged in the same business operations as the pred-
ecessor at the same location, I find on the basis of the
evidence, discussed below, that Respondent did in fact
commence operations in the same building as the prede-
cessor and engaged in the same business operation, on
April 20, 1982, contrary to the denial of Respondent.
Although the complaint particularly delineates the ulti-
mate allegations which constitute violations of Section
8(a)(1), (3), and (5), the pivotal' substantive issue present-
ed at the hearing (apart from the jurisdictional and inte-
gration issues, above) is whether three employees of the
predecessor (Moses), Nolly "Benny" Baynes, a porter-
handyman, William Boykin, a porter-handyman, and
Cave - Tobin, a doorman, were the subject of Respond-
ent's unlawful refusal to hire them about April 20, 1982;
or whether, as Respondent asserts, they voluntarily re-
fused to become employees of Respondent. On the reso-
lution of this threshold issue turns the question of wheth-
er, since April 20, 1982, the date when Respondent
also became, as legal "successor" (under outstanding
Board and court decisions), obligated to recognize and
bargain with the Union Particularly, the issue presented
was whether Respondent refused to continue in employ-
ment the predecessor's employees because of their union
membership and because of Respondent's desire to un-
lawfully evade its obligation to 'recognize and. bargain
with the Union as the collective-bargaining representa-
tive of these employees. Further, Respondent, if it was
obligated to recognize and bargain only with the Union
as the majority representative of the employees in the
above unit, was also obligated to refrain from bargaining
directly and individually with them regarding wages,
hours, and terms and conditions of employment; and par-
ticularly to avoid offering substantial sums of money to
induce them to either refrain from becoming employees
of Respondent by resigning from their employment with
the predecessor in order to permit Respondent, as appar-
ent successor, to avoid any bargaining obligation with
the Union.
A. The Testimony of Cave Tobin and Chaim Babad
Cave Tobin, for 17 years a doorman at 73-20 Austin
Street and a member of the Union for the same period,
testified that he knew that Chaim Babad, admittedly a
co-partner in and an agent of Tilden, had already pur-
chased the apartment building across the street located at
73-37 Austin Street sometime before Babad first ap-
proached him on the pavement in front of 73-20 Austin
Street in early April 1982. Babad told Tobin that he was
going to buy the 73-20 building and asked Babad how
long he had been working in the building. In a second
conversation about the same time, one John Drago, an
agent of Moses, the predecessor-owner of 73-20 Austin
Street, told employees Tobin and porter-handyman
Nolly "Benny" Baynes that Babad was going to buy the
building. At this time, Babad had spoken to Drago con-
cerning the quality of'the employees and Drago told him
that doorman Tobin did not work the full 4 p.m. to mid-
night shift that he was obliged to work; that porter
Boykin was a good employee but that "Benny" Baynes
was a "drinker:" Drago told him that one porter was
enough to do the job.
On Tuesday, April 13, 1982, an employee of Babad's at
73-37 Austin Street told Tobin that Babad wanted to see
the employees of 73-20 Austin across the street at 73-37
Austin Street that evening. That evening, at the premises
owned by J.R.R. Realty,4 they met in the superintend-
ent's apartment. Present were Babad, Cave Tobin,
"Benny" Baynes, Boykin, the superintendent of 73-20,
the superintendent of 73-37 and an employee of Tilden,
Chaim Schweid.
-On the basis of the sometimes conflicting testimony of
Tobin and Babad, I conclude that the following events
occurred at this Tuesday night (April 13) meeting. Babad
repeated that he was going to buy the building and
Tobin asked him what his plans were for the employees.
Babad told the group that the building at 73-20 needed a
doorman only between 5 and 10 p.m., 5 days per week
became the purchaser and controller of the property, it 4 See JR.R. Realty Co,-273 NLRB 1523 (1985)
TILDEN ARMS MANAGEMENT CO,
(the normal workweek. for the, doorman was 5 days
ending Saturday with the doorman having Sunday and
Monday off; Tobin's .workday was 4 p.m. to midnight on
each such day). When Tobin said him that he worked
from 4 to 12 p.m., Babad told Tobin that he was always
.leaving early and not there on time and that Babad
watched him. Tobin denied it and became angry. Babad
then told the employees that he could not afford paying
them their union wages of $240 a week and said that he
would offer them $4. per hour or as high as $4.50 per
hour if they would `work there. With regard to Tobin, he
said that he could work there no more than 25 hours per
week over a 5-day period. With regard to the porter-
handymen, they could work 40 hours but' would receive
at most $4.50 per hour. Tobin said he would work for
nothing less than $240 a week. Babad then said that he
was willing to make a deal with the employees (if they
refused to work at the rates and under the conditions
Babad offered them) and that deal would be offering
them money to leave their employment at the building.
Babad then said he would offer each of them $500 as a
matter purely of his goodwill if they-would -leave. Tobin
said he would not accept it but that Babad would-have
to notify the Union. Babad said that he-did not have to
notify the Union. Tobin then' said that 'if •Babad wanted
to-have them quit, Tobin wanted 2 weeks' pay for each
year (17 years) that he had worked iii the building.
When Babad said that he would not pay that figure
(which amounted to $5000-$6000), Tobin asked him:
"How- come you gave $2,000 to people -across the
street?" (i.e., at J.R.R. Realty Co., cf., J.R.R. Realty Co.,
supra). Babad answered Tobin: "I -am not sending- you
away. You can stay . I am not sending you away. I'll give
you money-$500-as a statement of goodwill because
you'll be out of a job and you have a family and you're
quitting .. But let me know as soon as possible if you want
to stay." He told them that he would pay them the
money so that there would be no bad feelings even
though he -did not owe them any money. Babad de-
scribed Tobin as being so angry that he was "fuming."
"Benny" Baynes told Babad that in view of the wages
offered ($160 to $180 per week as opposed to the $240
that he-had'been receiving under the union contract), he
was going to quit and would want money; but,' that he
was not, quitting that night and would see what hap-
pened with the other employees. The meeting then broke
up. , - -. -:
'On the -next day, Wednesday, April 14, Babad met
with John Drago. Drago agreed to have a meeting with
the three employees' that night in the basement of 73-20
Austin. That evening, sometime after 4:30 p.m., Drago
met together with Babad, Chaim Schweid (whom Babad
described as his "partner"), some employees from 73-37,
and the three -employees of 73-20. In. fact, however,
Drago was 10 or 15 minutes late.in arriving at the meet-
ing.
Av. this meeting, Babad told the employees that he
hoped to be the new owner shortly; that he was entitled
to pick and chose who worked at the building; and that
if they remained , they would have to take a cut in salary.
Willie Boykin said that "Benny" Baynes was not going
to 'stay* but he (Boykin) would stay particularly if, as
Babad said, only one porter was needed and therefore
Babad should pay. Boykin (who would do the work of
two porter). $240 a week. When Babad then again told
Tobin that he would work no more than 5 hours per
day, Tobin told him that there was no -way that he
would stay without being paid $240 a week which was
the -pay required under the union contract. Babad told
them that no one could tell him what the pay would be
and that'$4-$4.50 per -hour was all that he could afford.
Tobin told him that he would contact the Union, and
Babad told him that the Union, would tell him the same
thing., Tobin said that he thought that the offer was too
little and asked why Babad could not pay the union
scale. Babad repeated that no one could tell him what
wages to offer and that the wages he in, fact offered were
all that he could afford. Babad told them that there was
still a week to go before he took over the building (i.e.,
on April 20) and they should let him know whether they
were staying, or whether they would accept his offer of
money and leave. Drago, who had arrived by this time,
told them to let Babad know what their decision was be-
cause he-did not want them to be replaced by other em-
ployees and then have them change their minds and seek
employment in the building. To the extent that Babad
testified that it was an employee (Willie Boykin or
Benny Baynes or Cave Tobin), who suggested that they
be paid. money as part of a "deal" and that "they would
then get out," I reject such ,testimony and credit Tobin
(in particular) and Baynes and Boykin who testified that
the suggestion of the payment of money came, from
Babad.-
• In any event, Benny Baynes and Cave Tobin told
Babad that the offer of money that he had made the
night before ' was not enough and that A hey wanted 2
weeks' pay for.every year that they had been working
there. Babad told them that they could stay.-if they
wanted to but if they wanted to leave, since he had been
paid by-the predecessor, upon the transfer of title, $500-
$600 for, each of them--for their vacation money, he
would raise the offer to $1000 per employee. He told
them that the balance of the money was out of his
pocket and was -a matter of goodwill. When 'Babad of-
fered $1000, all three of the employees said it was too
low. Babad then told them that they should get back to
him with a reasonable offer- but not an offer costing
$5000 per employee. When "Benny" Baynes then asked
whether $1500 would be alright, Babad told them that he
did not want to settle with them individually and that all
of them would have to get back to.him with the amount.
Boykin said that he would not settle-for less than a very
high figure or else he would stay. Babad told him that if
he stayed he was, going to be staying at the rate of about
$180 'a week. It was at this point that Drago told the em-
ployees that Babad would, have to know whether they
were staying or not since the new,owner had to have an
opportunity to replace them. Drago urged them to work
out a deal to resolve the matter. At this point all three
employees attacked Drago's indifference since Drago
had been an.agent for.the predecessor. They said that the
building should not have been sold unless the purchaser
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid the same union wages. With the meeting turning
"hot," Drago and Babad left and the meeting ended.
About an hour later , Babad met "Benny" Baynes.
Baynes' credited testimony is that Babad told him that he
owed them nothing; that if they wanted -to settle, he
would pay them each $1000. Baynes rejected this as too
low and Babad again said that the money was purely a
demonstration of Babad's • "goodwill." Baynes said he
was looking for more money. Babad answered that if the
employees would not work for him, he would have to
get nonunion men to do the job at the lesser, offered
wage rate (Tr. 376, 383).'Baynes again rejected this"offer.
To the extent that Babad described the meeting as one in
which "Benny" Baynes merely told,him to forget about
Will Boykin and that Tobin and he would make a deal,
I credit the more extensive rendition as testified to by
Baynes. I do, however, credit Babad as telling -Baynes to
make a lower money offer in exchange -for leaving em-
ployment. Thereafter, Babad met Baynes on the street,
joked with him over his drinking habits, and told Baynes
that he could temporarily remain in the room that he oc-
cupied in the building whether or not he remained in em-
ployment.
Babad next came-to 73-20 Austin Street, on Friday,
April 16, 1982. He arrived about ' noon and was ap-
proached by "Benny" Baynes and Tobin who asked for
$2500 each as the price for leaving. He offered them
$1500. Baynes said that they were not too far apart and
that he would get back to Babad. On Friday, Babad of-
fered Tobin $2000 (Tr. 67) and said he could pick- and
choose among employees he would hire and not wait
until the union contract expired on April 20 (Tr. 68), at
which time he would be "off the hook" (Tr. 71). Babad
said this in response to Tobin declaring that the building
would be a-"union building" even after the contract (Tr.
71) expired: On Saturday night; April 17, the superin-
tendent of 73-20 Austin Street `told Babad that the em-
ployees (Baynes-and Tobin) had approached him and
said that they were definitely willing to make an agree-
ment with Babad and would meet him the next day if
Babad had cash to pay them with. Babad then tele-
phoned the superintendent and had him contact -Tobin
and Baynes to -meet him the next day at noon.
'On the next day, Sunday, April 18, shortly before
noon, Babad arrived and directed the superintendent at
73-37 get Baynes and -'Tobin. Babad testified that he
- again repeated that they were free to stay as, employees
but if they did so he could 'not pay them at 'the union
rate of $240 per week. He told them to make a decision.
They both responded that he should forget about their
working there and that they wanted the money. They
agreed on the respective amounts (Tobin and Baynes
were interviewed separately by Babad): $2000 for Tobin
and - $1700 for -Baynes (Baynes did not work for the
apartment house as long as Tobin had). Babad made out
checks, had them endorsed to-him,-and then paid cash to
each of them in the above amounts (Tr.'380).
In addition, Babad had each of them sign the follow-
ing documents (R. Exhs. 1 and 2), `each dated-and signed
on April 18,'1982: -
I` [name] [porter] [doorman] of 73-20 Austin
Street, Queens resign from my job as [doorman]
[porter] on said premises for my own personal rea-
sons. -
I do not have any claims against [the predecessor
or the predecessor's agent]. All' my salaries [sic]
have been paid and vacations pay [sic] and don't'
have any claims [sic].
Both Baynes and Tobin admitted signing although
Baynes was confused concerning the date on which `he
signed.
Nothing-in `these "resignations" says anything of the
payment of any 'sums of moneys by Babad to the resign-
ing employees, much less the amounts paid. Indeed,. the
recitation includes only salaries and vacation pay. There
is no suggestion in the record that any of the predeces-
sors, or indeed, Respondent, owed any salary to either
Cave Tobin or "Benny" Baynes.
On Monday, April 19, Tobin telephoned Boykin and
told him that he and Baynes were no longer employed
and had accepted, respectively, $2000 and $1700.
Tobin left employment but Baynes remained for sever-
al weeks in the -room in the basement of 73-20 Austin
Street. Porter William Boykin remained until Wednes-
day. On Wednesday night, i.e., on April 21, thus after
Respondent took title on April 20, the superintendent in
the building told Babad that- Boykin told him that he
wanted to make a deal with Babad to leave. Babad went
to the building that evening and met with Boykin.
On Wednesday evening, April 21, Babad met with
Boykin in the basement at 73-20 Austin and there paid
him $2000 in cash after Boykin received, endorsed and
returned a check in that amount to Babad and signed a
similar resignation note as did Baynes and Tobin. Babad
told him that the money was $1000 in vacation pay and
$1000 in money which he was not obligated to pay to
Boykin but was just giving it -to him out of the 'goodness
of his heart. -
Babad testified that Boykin was again told that he was
free to stay if he wished to because he was a good porter
but that Boykin refused to work for less than $240 per
week and certainly not for $190 per week. When Babad
said that the matter was up to Boykin, Boykin said that
he wanted definitely to leave and then was paid the
$2000 as above noted. Boykin, like Baynes, remained in
the building occupying a room on the premises for 2 to 3
weeks without paying rent. -
B. The Replacement Employees
Starting Tuesday, April 20, 1982, Respondent hired a
new doorman, Kadush Mehaneti. He was paid in cash
prior to first regular paycheck of May 11; 1982. The
prior cash payments occurred because Respondent did
not have checks printed up . during the interim 'period.
Kadush was paid at the rate of $100 a week for 25 hours
(i.e., $4 per hour) for the first 2 or 3 weeks of his em=
ployment but thereafter protested that he needed more
money and Babad added hours so that Mehaneti worked
30 hours and received $130 per week. He was paid _by
TILDEN -ARMS MANAGEMENT CO. . ` 1117
Babad $85 by check (with reductions from his pay) and
$30 in cash.
At the recommendation of Babad's superintendent,- a
new porter was hired at $180 a week. The porter's name
was unknown and only worked there 2-1/2 to 3 weeks.
In that period, like Mehaneti, because of the absence of
printed checks, the employee was paid in cash with
Babad thereafter reimbursing himself. After 3 weeks, this
replacement porter was terminated and instead of hiring
a porter, - Respondent employed John Muluganet, • who .
was paid $250 per week without statutory deductions.
He performed various necessary repairs and-left after
completion of the, plumbing repairs between May 15 and
October 1, 1982. 'Commencing October -1982, Respond-
ent hired a porter, M. Smith, whose first paycheck was
dated October 15, 1982, .with a gross pay of $178 for
working 6 days, 7 hours per day.
.C. Discussion and Conclusions
There is no^ dispute among the' parties that , as long ago
determined, a mere change in ownership of the employ-
ing business enterprise does not itself absolve a new
owner from the obligation to recognize and bargain with
the labor organization that represented the employees of
the former owner . Cruse Motors, , 105 NLRB 242, 247
(1953); Lincoln Private-Police, 189 NLRB 717, 719 (1971).
As more recently noted in Premium Foods, 260 NLRB
708, 714-715, enfd . 709 F.2d 623 (9th Cir. , 1983),- where
there is a substantial -continuity in the identity of the em-
ploying enterprise , the purchasing - employer is bound to
recognize and bargain with the incumbent union. In de-
termining - whether the , "employing . enterprise" remained
substantially the same , the Board has applied such cnte-
ria as whether : ( 1) there has been a substantial continuity
in the same business operations ; (2) the new employer
- uses the same plant; (3) the same or substantially the
same work force is employed; (4) the same jobs exist
under the same working conditions ; (5) the same 'supervi-
sors are employed ; (6) the same machinery , equipment,
and methods of production are used ; and (7) the same
product is manufactured or the same service offered. As
further noted - in Premium Foods, in resolving the succes-
sorship issue , the Board has not accorded controlling
weight to any single factor but has evaluated all the cir-
cumstances present in any given case in arriving at the
ultimate conclusion . In determining successorship, how-
ever , the keystone is whether there was a substantial
continuity of the employing industry .. See Saks Fifth
Avenue , 247 NLRB _1047 (1980), enfd . in pertinent part
634 F . 2d 681 (2d Cir . 1980). It is clear , for instance that a
change in the supervisory composition by the purchaser
does not negate the existence of a duty to bargain under
the successorship doctrine , Houston Distribution'Services,
227 NLRB 960, 968 fn . 16 (1977); but it is necessary that
a unit majority of the new employer 's work ' force are
employees of the predecessor or would have been a ma-
jority absent . a refusal to hire because of union animus.
NLRB v. Jeffries Lithograph Co.,- 752 F.2d 459 (9th Cir.
1985), enfg . 265 NLRB 1499 (1982 ); Saks Fifth Avenue v.
NLRB, supra at 684 ..Howard Johnson Co. v. NLRB- 417
U.S. 249 (1974); cf. General Processing - Corp ., 267 NLRB
1281 (1983).
A successor employer, nevertheless, is ordinarily free
to set initial terms and conditions of employment without
first bargaining with the incumbent union . NLRB -v.
World Evangelism, 656 F.2d 1349 (9th Cir.- 1981); NLRB
v. Burns Security Services, 406 U.S. 272, 294-295 (1972);
Spruce-Up Corp., 209 NLRB 194, 195 (1974). In Spruce,
Up at 195, the Board said:
In Burns, the Supreme Court enunciated the prin-
ciple that, a "successor employer is ordinarily free
to set initial terms on, which it will hire employees
of a predecessor" without 'first bargaining with'the
employees' bargaining representative.
The Board, however, in C.J.B. Industries, 250 NLRB
1433 (1980), has further held that: -
It is well established that where all other factors
for. finding -successorship are present, a new owner's
failure to hire its predecessor's employees will not
defeat a claim of successorship if such failure is
shown to be motivated by the former employees' of--,
filiation with a union.
In determining whether a duty to bargain exists under
the Board's "successorship" doctrine, former employees
of the prior owner who were discriminatorily denied-em-
ployment by the purchaser are considered to be employ-
ees of the purchaser, Houston Distribution Services, supra
at 968 -fn. 17, citing _ Greengate Mall,. 209 NLRB 37
(1974).' Such persons, refused employment for discrimina-
tory reasons by the successor, are-considered the succes-
sor's employees "by operation of law" J.R. Sousa &
Sons, 210 NLRB 982, 984 (1974). Moreover, a diminution
in the size of the work force by the new owner has been
held not to preclude a successorship finding. Houston
Distribution Services, supra at 968 fn. 19, Band-Age, Inc.,
217 NLRB 449, 453 (1975).
D. The Unit
Respondent concedes that the above noted unit, appro-
priate with the predecessor, remains an appropriate unit
with the'purchaser.
E. Successorship
In view of the seven criteria which the Board often
uses in determining' successorship, as noted in Premium
Foods, supra, there''is'no doubt that (1) there has been a
substantial continuity of the same business operations,
i.e.-, the operation' of the apartment house; (2) the new
employer uses the same facility; (3) the same work force
is employed (superintendent, doorman, porters); (4) the
same jobs. exist; (5) the same supervisors, i.e., Babad are
present (the supenntendent, is a unit employee); (6) the
same machinery, equipment; and methods of operation
are used; and (7) the same services are offered. If 'as
noted above, in Saks Fifth Avenue , the keystone is wheth-
er there was a substantial continuity in the employing in-
dustry, such a conclusion is apparent and required here.
The only open questions are,' as .the parties agreed at the
hearing, whether- a majority of the employees of the suc-
cessor were employees of the predecessor and whether
1118 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD
that majority is derived from the successor's hiring of
the predecessor's employees or-whether, as in -Greengate
Mall, supra, the -three employees who were refused em-
ployment become the employees of the successor by op-
eration of law. See Houston Distribution Services, 227
NLRB at 968. -
F. Respondent's Failure to Hire Boykin, Tobin, and
Baynes
In the instant case, it is uncontradicted that Babad told
Cave Tobin that -with the expiration of the union con-
tract on April 20, Babad would be "off the hook." I infer
this means "off the hook" to the Union. It needs no fur-
ther elaboration.for me to conclude, as I do, that Babad
desired not to bargain, recognize, or deal with -the Union
once the contract expired on April 20. The-question re-
mains , however, whether- his failure and refusal to hire
and continue the employment of.these three employees
of the predecessor is a violation Section 8(a)(1) and (3) of
the Act. See .General Processing Corp:, 267 NLRB 1281
(1983).
As, above noted; there is no question that Respondent,
as a successor employer, is ordinarily free to set 'initial
terms and conditions of employment without first bar-
gaining with'the incumbent union . NLRB'v. Burns Secu-
rity Services, -406 U.S. 'at 294-295. It is well established
that a successor employer is under no obligation to hire
any or all of the eiployees of the former employer, but'
the selection process may not be enforced by discrimina-
tory considerations :proscribed' by the Act. Premium
Foods, 260 NLRB 708; 714,' citing cases;C.J.B. Industries,
250 NLRB 1433.?') - - '
Here, the evidence shows that in a prior proceeding,
J.R.R. Realty Co., 273. NLRB 1523 (1985), Respondent
was motivated, under almost identical circumstances,. to
engage in conduct in violation of Section 8(a)(1) and (3)
of the Act in execution of its desire to rid itself of poten-
tial employees whose union membership, in majority,
might obligate Respondent to bargain with - the very
same union.. The unfair: labor practices occurred.across
-the street in- a different apartment house, 1 year. before.;
In these circumstances, I am not obligated to'-ignore such
facts.5 I am privileged, if not required, to take into ac-
count Board findings of Respondent's animus against the
same union and union -member employees displayed in
that prior case -under similar circumstances in judging
Respondent's motivation in the instant case, Tama Meat
Packing Corp. v. NLRB, 575 F.2d 661 (8th Cir: 1978),
cert. denied 439 U.S. 1069 (1979). Furthermore, - the in-
ference of union animus does not stem from that case
alone, but in the instant case Babad made,it clear, in
dealing with Cave Tobin, that he believed that after
5 I am, of course, not relying on credibility resolutions . concerning
Babad made by Judge Cohn in the JR.R.- Realty case Cf Electrical
Workers IBEW Local 3 (Nixdorf Computer), 252 NLRB 539 fn. I (1980).
Rather, I am made aware of similar circumstances in a case involving
Babad in'a building across the street I have made findings and resolu-
tions on the reasonableness of the testimony , the demeanor of the wit-
nesses, and the record as, a whole in this case I am, however , not blind
to history or committed to naivete . The Act does not require admmstra-
tive law judges to be naive regarding discriminatory motivation. Shattuck
Denn Mining Corp: v. NLRB, 362 F 2d 466 (9th Cir. 1966).
April, 20,.1982, the expiration date of the Union's collec-
tive-bargaining agreement with his predecessor;- he
would be "off the hook" with the Union. In dealing with
Baynes, Babad wanted nonunion employees to work for
lesser wages. I have little trouble in concluding, as I do,
that Respondent was animated by a desire to avoid bar-
gaining with-or even recognizing the Union. He desired
to be -"off the hook." -
There remains the question of whether Respondent's
conduct with the employees showed that he refused to
hire them for discriminatory and unlawful reasons. As
above noted, Respondent,' as a successor,- was' free to set
its own terms and conditions of employment for the
predecessor's employees below that of the union scale of
$240. He offered the three employees $160 to $180 to
start and moreover, this was shown to be no pretext' be- -
cause the replacement employees • who actually filled
these positions in Respondent's -building, worked for
-even less. Thus, I conclude that if Respondent, even with
union animus as a basis for the low wage offer, had
simply offered $160 to $180 per week as wages to, the
three predecessor's employees and, if they refused, and
Respondent filled those jobs at:.those wage levels with
nonunion employees, I would not. conclude that -•Re=
spondent had thereby violated the law or demonstrated a,
discriminatory refusal-to hire the three predecessor's em-
ployees. -However, we are here faced with further evi-
dence:•the large sums of money paid to each of them:to
quit their jobs and to not seek further -employment. 6 -_
In the instant case, it is clear, that unlike Babad's ac
tivities in J.R.R. Realty Co., 273 NLRB 1523, here, Re-
spondent actually offered the employees positions and
was not telling them, even by virtue of the lower wage
offer, that they were not acceptable employees to him..
On the other hand, there is no question that 'the low
wage offer, whether by design or not, was a clear ele- .
ment in the decision of the employees not to work for
the successor. This, however, -is not unlawful. What is
evidence of unlawful intent , as-in J-R.R. Realty, supra, is
Respondent's wholly gratuitous offer to the employees of
large sums of money to relinquish their jobs; and Babad's
express refusal to deal with - them individually, but a
desire for- group resignation. These elements, I believe,
are evidence of unlawful motivation since contrary to
Babad 's":testimony , the sums did not represent -vacation
pay which Babad had received in the transfer of title
from-the predecessor. Here, the excessive, and progres-
sively larger -offers of moneys were paid both before
(Tobin and ;Baynes) and after (Boykin) Respondent
'became successor. In-J.R.R.- Realty, Babad paid-off the
employees after he took title. The unlawful result, re-
mains the same. - ,
In no way did Babad, in my judgment, successfully
testify-with regard to (a) the difference- between the-$500
and $600, 'as alleged vacation pay he allegedly received
from the-predecessor, and the balance of-moneys paid to
the three employees. At one' point, according to the
credited testimony of Boykin (working on April 21 and
6 I take official notice' that the hearing before Judge Cohn in J.R.R.
Realty took place I 'month before the April 1982 employee transactions
herein - '
TILDEN ARMS MANAGEMENT CO.-
after the transfer of title, thus arguably already an em-
ployee of Respondent), Babad told him that his offer of a
$1000 was for vacation pay. That $1000 was clearly in
excess of the allegedly transferred $500 to $600 vacation
pay. In addition, the statement-by Babad that the further
$1000 paid to Boykin was out of the "goodness of his
heart" is just too hard to believe. I need not make any
subjective value judgments of my observation of Babad
on the witness stand as to whether this money actually
flowed from the goodness of his heart. For Babad cannot
logically, on one hand; plead poverty in the diminution
of the wage offers to these three employees and on the
other hand, offer them in excess of a $1000 purely "out
of the goodness of his heart" and additional sums above
the vacation pay which he believed was due them.
Moreover, the $2000 final offer to Tobin was accom-
plished by Babad's, statement that with the expiration of
the contract on April 20, he would be "off the hook" to
the Union. Thus, the relation between their union mem-
bership and the payment of moneys to the employees,
while not express, demonstrates that the departure of
these union members was coextensive with Respondent's
being "off the hook." .
I conclude that the-only logical purpose of these pro-
gressively higher offers, as in J.R.R. Realty, and these
cash payments was to strike a deal with the individual
employees so that they would forgo their jobs and could
start afresh with a new nonunion crew. On this record, it
was clearly cheaper for Respondent to "buy out" these
former employees than to have them remain as a unit,
union majority and to recognize the Union and perhaps
be obligated to' make various payments, other than
wages, including pensions and other benefit arrange-
ments I have no hesitation in concluding that Respond-
ent, whatever the lawfulness of its offer of lesser wages
than the wages received under the expiring collective-
bargaining agreement, manifested union animus in brib-
ing the employees with large sums of money to cease,
their being employed by the predecessor or itself in
order to avoid their becoming Respondent's employees.
This conclusion meets the apparent defense that the
employees were offered gobs with Respondent, as succes-
sor, and rejected the offers because of the alleged inad-
equacy of the pay'rates; that Respondent was indifferent
to their union affiliation because the employees were free
to remain in Respondent's employment at the offered
wages as evidenced by the pay rates of replacement em-
ployees. It is true that these matters may. be of use in
computing how much backpay,, if any, may be due to the
alleged discriminatees; and it is also true that, had Babad
said nothing after the three employees rejected Respond-
ent's offers of reduced wages as a condition of continued
employment, Respondent, as a successor setting. initial
terms, might not even have committed a 8(a)(5) and (1)
violation by direct dealing rather than consulting the em-
ployees' bargaining representative.
Babad studiously avoided notifying the Union of his
wage proposals even after the employees told him the
premises were a "Union building" and that they would
notify the Union. Instead, Babad sought to "buy his way
out" of having these employees as Respondent's employ-
ees. The progressively higher direct money offers to the
employees denote the importance of getting rid of them.
It was not the quality of their work nor their refusal to
work at lower wages that induced the "settlements." It
was the attempt to insure that Respondent would be "off
the hook" to the Union after April 20 by not having
these union-represented employees in employment. I
therefore have found that a motivating factor in Re-
spondent's refusal to hire was unlawful and that Re-
spondent has failed to rebut this prima facie case. Wright
Line, 251 NLRB 1083 (1980).
I therefore conclude that but for Babad's unlawful
conduct in bribing the employees to quit, and in refusing
to hire these three employees, all members of the Union,
the Union would have continued in its, majority status
and would have remained the collective-bargaining rep-
resentative of these employees following the transfer of
title; and that Respondent would have been obliged to
recognize and bargain with the Union as the successor.
By its conduct, therefore, in "buying out" the employees
and causing them to resign , Respondent was unlawfully
attempting to defeat its obligation as a successor to bar-
gain with the majority representative of its employees in
violation of Section 8(a)(1) and (5) of the Act.7 The
"buy out" moneys and the employee resignations mooted
the question whether the employees would have quit
voluntarily. It unlawfully refused and failed to hire the
employees of the predecessor, whom, I find, regardless
of. their insistence on payment of union-scale wages
would not have been hired-by Respondent, thus violating.
Section 8(a)(3) and (1) of the Act. I particularly find that
the failure to hire-them was due to their affiliation with
the Union and that Respondent violated its further obli-
gation as a successor to recognize and bargain with the
Union under Section 8(a)(1) and (5) of the Act. C.J.B.
Industries, supra. In this regard, I find that, at most, Re-
spondent would have had four employees in its employ
(the superintendent and the three discriminatees herein)
and that the three employees, members of the Union, at
all material ,times, would have constituted a majority in
the above-noted appropriate unit of the successor.
G. Further Findings of Violations of Section 8(a)(5) of
the Act
Since, as above noted, the three alleged discriminatees
became Respondent's employees by operation of law
since Babad unlawfully refused to hire them across the
transfer' of title as a' successor, Houston Distribution Serv-
ices, 227 NLRB at 968 fn. 17; Greengate Mall, 209 NLRB _
37 (1974), when Respondent at various times on and
after April 13, 1982, bargained directly with them con-
cerning their wages and terms of severance, he was un-
lawfully bargaining with union members and umt em-
Since Respondent received legal title only on April 20, it could be
argued that its actions violated Sec 8(a)(1) and not 8(a)(5) with regard to
Tobin and Baynes since , on Apnl 19, Respondent was not yet the succes-
sor I reject this position The payment to Boykin was on or after April
20 and, furthermore, it was part of an ongoing scenario Moreover, the
"equitable" title to the property passed to Respondent upon signing the
contract of sale with the predecessor a "couple of months before" the
April 20 title closing (Tr 161) Thus, Babad 's successorship obligation to
refrain from direct bargaining with unit employees dates from a time ear-
lier than April 20
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
ployees in violation of his- obligation to bargain only
with their statutory representative. Medo Photo Supply
Corp. v. NLRB, 321.U.S. 678 (1944); J.R.R. Realty Co.,
sup: a.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III1:
above, occurring in connection with the operations of
Respondent described in section I, above, have -a close,
intimate; and substantial relationship to trade, traffic, and
commerce among the several-.States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
'Having found that Respondent is engaged in'certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action designed to -effectuate the policies of
the Act. .
Having found that Respondent, as a successor' employ-
er, violated Section 8(a)(5)'and (1) of the Act by failing
and refusing to recognize and bargain with the Union as
the exclusive collective-bargaining representative of the
employees in an' admittedly appropriate unit, I recom-
mend that Respondent'be ordered to recognize and bar-
gain in good faith with the Union upon the Union's re-
quest. ' .
Having found that Respondent unlawfully refused to
hire the three alleged discriminatees, about April- 18 and
21, when it paid them the buy out money, in violation of
Section 8(a)(1) and-(3) of the' Act, I shall 'recommend
that Respondent be ordered to offer them employment
and to make them whole for any loss of earnings and
other -benefits resulting from Respondent's unlawful re-
fusal to hire them. The amount of backpay -shall be com-
puted in the manner as set forth- in F, W. Woolworth Co.,
90 NLRB 289 (1950), with interest thereon to be com-
puted in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).8 In making whole the three discrimin-
atees for the' loss of earnings and other benefits, Re-
spondent should be credited with the amounts it paid to
the employees allegedly in-settlement of their claims for
severance pay. J.R.R. Realty Co., supra.
. Lastly, because of Respondent's proclivity to violate
the Act, measured as against its previous conduct across
.the street, in the year before, under the same or similar
circumstances,, including the discharge or refusal to hire
the entire complement of the predecessor's employees, I
shall recommend the entry of a broad order.9
On the foregoing findings of fact, and on the entire
record in this case, I make the following
CONCLUSIONS OF LAW
1. Respondent , as described in section 1, above; is an
employer engaged in -commerce within the meaning of
Section 2(2), (6), and (7).6f the Act., '
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union has been and is the collective-bargaining
representative of Respondent's employees in the follow-
ing unit found appropriate herein: All service employees
of Respondent, employed at its Forest Hills building at
73-20 Austin Street, Queens, New York, exclusive all
office clerical employees, guards and supervisors as de-
fined in Section 2(11) of the Act.
4. Respondent, a single integrated employer within the
meaning of the Act, is the successor employer of the em-
ployees in the unit described in paragraph 3, at the
above-noted premises of 73-20 Austin Street, Queens,
New York, of Irving Weber, and the 73-20 Austin Street
Realty Co..
5. Respondent, as a successor employer, described in
paragraph 4 above, violated Section 8(a)(5) and (1) of the
Act by refusing to bargain, from April 13, 1982, collec-
tively in good faith with the Union as the exclusive bar-
gaining representative of the employees in the above-de-
scribed appropriate unit.
6. Respondent, commencing April 13, 1982, violated
Section 8(a)(5) and (1) of the Act by bargaining directly
and individually with unit employees in derogation, of its
duty to bargain solely and only with the Union, their
statutory representative.
7. Respondent violated Section 8(a)(1) and (3) of the
Act in April 1982, by offering and paying to unit em-
ployees substantial sums of money to induce them to
resign from their employment with Respondent's prede-
cessor in order that the employees not become employ-
ees of Respondent, thereby obligating Respondent to bar-
gain with the Union.
8. Respondent, about April 20, 1982, violated Section
8(a)(1) and (3) of the Act by refusing to hire as its em-
ployees, Cave Tobin, William - Boykin, and Nolly
"Benny" Baynes because of their, membership in and sup-
port of the Union and because of Respondent's desire to
avoid recognizing and bargaining with the Union as their
statutory representative.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
-edio
'ORDER
The Respondent, Chaim Babad, Usher Babad, Chaim
Schweid, Baruch Nathan Halberstan, LSM Management
(Bernat Steinmetz, General Partner), and Sherman Man-
agement Co. (Emanuel Steinmetz, General Partner) a co-
partnership, d/b/a Tilden Arms Management Co. and
Toby Estates, Inc., Brooklyn, New York, each of them,
and their agents, successors, and assigns, shall:
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
respect to wages, hours, and other terms and conditions
of employment with Local 32B-32J, Service Employees
10 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
8 See generally Isis Plumbing Co, 138 NLRB 716 (1962) Board and all objections to them shall be deemed waived for all pur-
e H,ckmott, Foods, 242 NLRB 1357 (1979) - , poses -
TILDEN ARMS MANAGEMENT CO
International Union , AFL-CIO as the exclusive . bargain-
ing representative of its employees in the following ap-
propriate unit:
All,service employees of Respondent, employed at
its Forest Hills apartment building located at 73-20
Austin Street, Queens, New York, exclusive of all
office clerical employees, guards as defined in Sec-
tion 2(11) of the Act.
(b) Disregarding the Union and bargaining directly
with unit employees in derogation of the Union, their
collective-bargaining representative.
(c) Refusing to hire employees because of their mem-
bership in and sympathy for or support of the Union or
because of Respondent's desire to avoid bargaining with
the collective-bargaining representative of said employ-
ees.
(d) Offering to employees or potential employees
money, or anything of value, to induce them to refrain
from becoming employees of Respondent or to resign
their existing employment, all consistent with Respond-
ent's desire to avoid hiring these applicants for employ-
ment and thus recognizing and bargaining with the col-
lective-bargaining representative of these employees.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act. -
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain collectively in good faith with
the Union as the exclusive representative of the employ-
ees in the above-described appropriate unit and enter into
a written collective-bargaining agreement if agreement is
reached.
(b) Offer Nolly "Denny" Baynes, Cave Tobin, and
William Boykin, immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them, in the manner set forth in the remedy sec-
tion of the decision.
(c) Remove from its records any reference to resigna-
tions executed in the month of April 1982, by Nolly
"Benny" Baynes, Cave Tobin, and William Boykin and
notify them of this action.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Queens, apartment building at 73-20
Austin" Street, and at Respondent's office at 284 Hewes
Street, Brooklyn, New York, copies of the attached
notice marked "Appendix."" Copies of the notice, on
" If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
1121
forms provided .by the Regional Director for Region 29,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous 'places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other maten-
al.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain collec-
tively with respect to rates of pay, wages, hours, and
other terms and conditions of employment with Local
32B-32J, Service Employees International Union, AFL-
CIO as the exclusive representative of the employees in
the following unit appropriate for bargaining under the
National Labor Relations Act:
All service employees employed in our Forest Hills
apartment building located at 73-20 Austin Street,
Queens, New York, exclusive of all office clerical
employees, guards and supervisors as defined in
Section 2(11) of the Act.
WE WILL NOT disregard the Union and bargain direct-
ly with our employees in derogation of our obligation to
bargain solely and exclusively with their collective-bar-
gaining representative.
WE ' WILL NOT refuse to hire applicants for employ-
ment or potential employees or employees of our prede-
cessor because of their membership in or support for the
Union or because of our desire to avoid a bargaining ob-
ligation with the Union.
WE WILL NOT offer applicants for employment, em-
ployees of our predecessor, or employees substantial
sums of money to induce them to resign their employ-
ment with us or our predecessor in order that we may
evade any obligation to bargain with the Union on their
behalf.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed in Section 7 of the Act.
WE WILL bargain collectively in good faith, on re-
quest, with the above-named Union as the exclusive rep-
resentative of the employees in the above-described ap-
propriate bargaining unit.
WE WILL offer to William Boykin, Cave Tobin, and
Nolly "Benny" Baynes, full employment to their prior
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jobs with backpay and interest as required by the Nation - Cave Tobin , and William Boykin and notify them of this
al Labor Relations Act. action.
WE WILL remove from our records any reference to
the April 1982 , resignation of Nolly "Benny" Baynes, TILDEN ARMS MANAGEMENT CO. AND
TORY ESTATES INC., A SINGLE EMPLOYER