87-10 51st Avenue Owners Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1996

320 N.L.R.B. 993 (N.L.R.B. 1996)

993
320 NLRB No. 109
87-10 51ST AVENUE OWNERS CORP.
1 On November 21, 1994, Administrative Law Judge James F.
Morton issued the attached decision. The General Counsel, the
Charging Party, and the Respondent each filed exceptions and sup-
porting briefs.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 We deny the Respondent’s renewed motion to reopen the record.
3 We reject the Respondent’s contention that Spire was, and is, the
employer of the unit employees. The Respondent is the owner of the
building. Prior to July 1993, Spire Management was the manager of
the building. The contract between the Respondent and Spire pro-
vided that the employees were the Respondent’s employees. Al-
though there may have been some indicia of joint-employer status,
there is no contention that the Respondent and Spire were joint em-
ployers. Accordingly, when the Respondent terminated Spire in July
1993, the Respondent remained the sole employer of the unit em-
ployees.
4 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the
Continued
87-10 51st Avenue Owners Corp. and Local 670,
Retail, Wholesale, Department Store Union,
AFL–CIO. Case 29–CA–17729
March 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
Questions presented in this case1 are whether the
judge correctly found that the Respondent was the em-
ployer of unit employees represented by the Union,
and that the Respondent committed several violations
of Section 8(a)(1), (3), and (5) of the Act but did not
refuse to sign a collective-bargaining agreement with
the Union or withdraw recognition from the Union in
violation of Section 8(a)(5). The Board has considered
the decision in light of the exceptions and briefs and
has decided to affirm the judge’s rulings,2 findings,
and conclusions, except as discussed below.
1. The judge found that there was insufficient evi-
dence to establish that the Respondent withdrew rec-
ognition from the Union as representative of employ-
ees working in the Respondent’s apartment building.3
We disagree. The record shows that Union Business
Agent Cono D’Alora sent the Respondent’s attorney,
Ethel Fitzgerald, a letter dated November 8, 1993. In
the letter, D’Alora asked to meet with the Respondent
to resolve outstanding problems with the Union’s at-
tempt to conclude a new collective-bargaining agree-
ment. D’Alora testified that, in a subsequent telephone
conversation on November 18, Fitzgerald told him that
the Respondent had never had a contract with the
Union and that he should negotiate with Spire Manage-
ment, a separate employer that the Respondent had ter-
minated as manager of its apartment building.
In accord with the judge’s analysis, we find that the
Respondent, not Spire, has been and still is the em-
ployer of the unit employees represented by the Union.
We further find that Fitzgerald’s refusal to deal with
the Union and her assertion of the claim that the Union
should negotiate with Spire about the unit employees
constituted an unequivocal repudiation of the Respond-
ent’s bargaining relationship with the Union. The Re-
spondent thereby withdrew recognition from the Union
in violation of Section 8(a)(5) of the Act.
2. The judge credited the testimony of employee
Theodore Conte about a July 1993 conversation with
Paul Arena, the Respondent’s property manager. Based
on this testimony, the judge found that Arena violated
Section 8(a)(1) of the Act by threatening to fire Conte
if he continued to support the Union. We affirm this
finding.
The General Counsel has excepted to the judge’s
failure to discuss and find merit in complaint allega-
tions of additional 8(a)(1) violations during the same
conversation. In this regard, Conte credibly testified
that Arena said that ‘‘there was no union, no bene-
fits,’’ that he did not want union representatives in the
building, and that, if he caught a union representative
on the premises, Arena would have him locked up.
The record shows that until July 1993 the parties had
an established practice of permitting union visits to the
apartment building. Based on the foregoing evidence,
we find that Arena violated Section 8(a)(1) by inform-
ing employees that they would no longer receive any
union benefits, by advising employees that the Re-
spondent did not want any union representatives on its
premises, and by threatening to arrest union representa-
tives on its premises.
3. The Respondent has excepted to the judge’s find-
ing that it unlawfully made several unilateral changes
in unit employees’ wages and working conditions in
July 1993 and afterwards. We affirm the judge’s find-
ings, with the exception of the finding as to the Re-
spondent’s failure to deduct and remit dues to the
Union. An employer’s duty to check off and remit
union dues is extinguished upon the expiration of the
collective-bargaining agreement. Robbins Door & Sash
Co., 260 NLRB 659 (1982). In this case, the parties’
collective-bargaining agreement expired on December
31, 1992. Although the General Counsel has contended
that the parties agreed to extend the contract until they
signed a successor agreement, we find that there is in-
sufficient proof of any extension agreement. The
record indicates only that the Respondent’s agent re-
quested an extension of the negotiating period and as-
sured retroactive application of any contract subse-
quently negotiated. The Respondent therefore did not
violate the Act by failing to deduct and remit dues
after the contract’s expiration. We shall modify the
recommended Order and notice language to accord
with this finding.4
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent will reimburse the employee as provided in the remedy
and Order, but the amount of such reimbursement will constitute a
setoff to the amount that the Respondent otherwise owes the fund.
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The National Labor Relations Board orders that the
Respondent, 87-10 51st Avenue Owners Corp., New
York, New York, its officers, agents, successors and
assigns, shall
1. Cease and desist from
(a) Warning its employees that they could be dis-
charged if they remained as members of and continued
to support Local 670, Retail, Wholesale, Department
Store Union, AFL–CIO.
(b) Threatening termination of union benefits, threat-
ening termination of an existing practice of permitting
representatives of the Union access to the Respond-
ent’s premises, and threatening to cause the arrest of
any union representative found on the premises.
(c) Discharging its employees because they re-
mained as members of and continued to support the
Union.
(d) Failing and refusing to bargain collectively with
the Union prior to cessation of unit employees’ benefit
fund payments, failing to pay unit employees accrued
vacation pay, and changing the work hours of a unit
employee.
(e) Withdrawing recognition from and refusing to
bargain with the Union as the exclusive representative
of an appropriate unit of the Respondent’s employees.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with the
Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and
conditions of employment and, if understandings are
reached, embody the understandings in a signed agree-
ment. The appropriate unit is:
All employees employed as superintendent and
porters at the building located at 87-10 51st Ave-
nue, Brooklyn, New York.
(b) Offer Theodore Conte, Fernando Cruz, and Fran-
cisco Palma 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 pre-
viously enjoyed, 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 section of the judge’s decision.
(c) Remove from its files all references to the un-
lawful discharges of Theodore Conte, Fernando Cruz,
and Francisco Palma, and notify those employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(d) Make whole all unit employees in the manner set
forth in the remedy section of the judge’s decision for
any losses ensuing from its unlawful failure to adhere
to certain existing terms and conditions of their em-
ployment, and rescind unilateral changes that resulted
in such losses.
(e) Make whole the unit employees’ pension, wel-
fare, and annuity funds in the manner set forth in the
remedy section of the judge’s decision.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, per-
sonnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of the Order.
(g) Post at its facility in Brooklyn, New York, cop-
ies of the attached notice marked ‘‘Appendix.’’5 Cop-
ies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Re-
spondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(h) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
99587-10 51ST AVENUE OWNERS CORP.
WE WILL NOT warn our employees that they could
be discharged if they remain as members of and con-
tinue to support Local 670, Retail, Wholesale, Depart-
ment Store Union, AFL–CIO.
WE WILL NOT threaten termination of union benefits,
threaten termination of an existing practice of permit-
ting representatives of the Union access to the Re-
spondent’s premises, and threaten to cause the arrest of
any union representative found on the premises.
WE WILL NOT discharge our employees because they
remain as members of and continue to support the
Union.
WE WILL NOT fail and refuse to bargain collectively
with the Union prior to cessation of unit employees’
benefit fund payments, failing to pay unit employees
accrued vacation pay, and changing the work hours of
a unit employee.
WE WILL NOT withdraw recognition from and refuse
to bargain with the Union as the exclusive representa-
tive of an appropriate unit of the Respondent’s em-
ployees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees
in the following appropriate unit concerning terms and
conditions of employment and, if understandings are
reached, embody the understandings in a signed agree-
ment:
All of our employees employed as superintendent
and porters at the building located at 87-10 51st
Avenue, Brooklyn, New York.
WE WILL offer Theodore Conte, Fernando Cruz, and
Francisco Palma immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously
enjoyed, and WE WILL make them whole, with interest,
for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings,
plus interest.
WE WILL remove from our files all references to the
unlawful discharges of Theodore Conte, Fernando
Cruz, and Francisco Palma and notify them in writing
that this has been done and that their discharges will
not be used against them in any way.
WE WILL make whole all unit employees and their
benefit funds for any losses resulting from our unlaw-
ful failure to adhere to existing terms and conditions
of employment and WE WILL rescind unilateral changes
that resulted in such losses.
87-10 51ST AVENUE OWNERS CORP.
Amy S. Krieger, Esq., for the General Counsel.
Stuart Weinberger, Esq., of Ardsley, New York, for the
Charging Party.
Robert S. Nayberg, Esq. (Law Offices of Martin H. Scher),
of Carle Place, New York, and Ethel Fitzgerald, Esq., of
Brooklyn, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
amended complaint alleges that 87-10 51st Avenue Owners
Corp. (the Respondent) has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act) by having discharged three of
its employees because they were members of Local 670, Re-
tail, Wholesale, Department Store Union, AFL–CIO (the
Union) and that it engaged in further unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having
threatened its employees respecting their support for the
Union and by having informed them that the Union no
longer represents them. The complaint also alleges that the
Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act by having re-
fused to honor the Union’s request to sign a renewal collec-
tive-bargaining agreement on which accord was reached, by
having withdrawn recognition from the Union as the exclu-
sive collective-bargaining representative of a unit of the Re-
spondent’s employees, and by having failed to comply with
various provisions of the renewal agreement and those of the
previous agreement, including the Respondent’s obligation to
contribute to various benefit funds and to pay accrued vaca-
tion monies to unit employees. The complaint alleges further
violations of Section 8(a)(1) and (5), by the Respondent in
having unilaterally changed terms and conditions of employ-
ment of unit employees.
The Respondent’s answer places those allegations in issue
along with allegations that the Respondent’s operations meet
the Board’s standard for asserting jurisdiction and that the
Union is a labor organization under the Act.
I heard this case in Brooklyn, New York, on August 1, 2,
and 3, 1994. Upon the entire record, including my observa-
tion of the demeanor of the witnesses, and after due consid-
eration of the briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent owns the Continental, a cooperative build-
ing located in Brooklyn, New York, and which has 150 resi-
dential apartments.
In 30 Sutton Place, 240 NLRB 752 (1979), the Board held
that it would assert jurisdiction over residential cooperative
and condominium apartment buildings which have a gross
annual revenue in excess of $500,000. In Imperial House
Condominium, Inc., 279 NLRB 1225 (1986), the Board as-
serted jurisdiction over an association of individual residen-
tial unit owners which grossed over $500,000 in 1980 and
which, in that same year, purchased utilities from Peoples
Gas System in the amount of $39,427; Florida Power &
Light, $189,790; and Southern Bell Telephone Co., $10,476;
and paid $168,050 to companies for maintenance, repairs,
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and supplies, including $8,480.62 to Otis Elevator. Of
$26,339 spent for insurance in that case, Equitable Insurance
Co. received $2,074.23.
The Respondent did not furnish extensive records as to its
operations which the General Counsel subpoened. It reported
that many of those records were not in its possession but
were in the possession of its ‘‘auditor.’’
The Respondent, in the period July 1, 1993, to June 30,
1994, received gross revenues exceeding $500,000 from rent-
al and maintenance fees. Respecting its purchases, the
records available at the hearing disclose the following:
Supplier Service or Product Value For the Period
Prudential Insurance Co. Various policies $38,501 Jan-June 15, 1993
Home Savings of America
(Palatine, IL) Mortgage 90,997 Jan-Jul, 1993
Brooklyn Union Gas Utilities 1,291 Jan-Jul, 1993
Original Commercial Oil Heating oil 81,596 1990
I find that Respondent’s operations meet the criteria set
out in 30 Sutton Place, supra, and in Imperial House Con-
dominiums, supra, and that it will effectuate the policies of
the Act for the Board to assert its jurisdiction in this case.
II. LABOR ORGANIZATION
The Union has represented, for the purposes of collective
bargaining, the superintendent and porters employed at the
Continental for some years for purposes of collective bar-
gaining. The uncontroverted testimony of the Union’s busi-
ness agent discloses that the Union is an entity which fulfills
the requirements set out in Section 2(5) of the Act, defining
a labor organization.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Title to the apartment building in this case, the Continen-
tal, was transferred, shortly before June 21, 1988, from Sum-
mit House Associates to the Respondent. There is in evi-
dence a copy of a collective-bargaining agreement in effect
from January 1, 1990, to December 20, 1992, between the
Union and ‘‘87-10 51st Avenue Owner’s, Inc., Spire Man-
agement c/o Birchwood.’’ Spire Management Corporation
(Spire) is engaged in the business of managing apartment
buildings and is part of an organization referred to as Birch-
wood Associates.
Another document in evidence is a contract between the
Respondent and Spire, for the period May 1, 1992, to April
30, 1995, whereby the Respondent appointed Spire as its
agent to hire, pay, and supervise all persons necessary to
maintain the Continental and which provided that such per-
sons be the Respondent’s employees, not Spire’s. Spire was
authorized via that document to enter into maintenance con-
tracts, to arrange for appropriate insurance coverages, to bill
and collect rents and related charges, to file tax returns, to
arrange for board of elections’ meetings, and ‘‘to perform
any act or do anything necessary or desirable in order to
carry out’’ the foregoing commitments. Pursuant to that au-
thority, Spire policed the collective-bargaining agreement,
noted above, which it had signed on behalf of the Respond-
ent and which covered the superintendent and porters work-
ing at the Continental.
On September 30, 1992, the Union wrote Spire, as the Re-
spondent’s agent, for a meeting to discuss the terms of a
contract to be effective after December 31, 1992. Spire ad-
vised the Union by letter of December 2, 1992, that there
was a matter ‘‘regarding the make-up of [the Respondent’s]
board of directors’’ and requested ‘‘an extension [of] the ne-
gotiation period’’ until that matter is resolved. (The share-
holders of the Respondent were then in litigation as to who
would sit on the board of directors.) Spire, in that letter, as-
sured the Union that, when the new contract is negotiated,
everything will be retroactive to January 1, 1993. On Feb-
ruary 19, 1993, Spire wrote the Union to report that the
makeup of the board had still not been determined and re-
peated its assurance that the new contract will be retroactive
to January 1, 1993. On June 24, 1993, the Union wrote Spire
for an ‘‘update’’ on the situation. Spire replied by letter of
July 2, 1993, stating that it expects to be able to negotiate
a new contract with the Union on behalf of the Respondent
within the ensuing 3 to 4 weeks. In fact, however, the Re-
spondent terminated its relationship with Spire soon after in
circumstances that appear to have been not too amicable. The
Respondent then hired an individual, Paul Arena, as its prop-
erty manager to supervise the porters. As discussed further
below, it did not then or thereafter deduct union dues from
the wages of its porters, as Spire had done previously on its
behalf, or remit those moneys to the Union. It also ceased
making contributions to various benefit plans for those em-
ployees, set out in the collective-bargaining agreement re-
ferred to above.
B. The Alleged Unlawful Statements by Arena in
July 1993
Theodore Conte, a porter who worked at the Continental
for 13 years and has been a member of the Union, testified
that, in July 1993, he met Arena who informed him that he
was Conte’s ‘‘boss,’’ that there was ‘‘no union, no benefits,’’
that he could fire Conte anytime he wanted to’’ and that, if
he caught the Union’s delegate on the premises, he would
have him locked up. On another occasion, according to
Conte, Arena asked him if the Union’s delegate had visited
the building and, when Conte replied that he had not seen
any delegate there, Arena stated that he did not want any
delegate around.
Arena testified that, at various times, he was asked by the
porters about union benefits and that he responded by stating
that he was ‘‘not aware of any union contract at this time
in the building.’’
I credit Conte’s account. It was, in good part, uncon-
troverted and to some extent even corroborated by Arena.
99787-10 51ST AVENUE OWNERS CORP.
1 The Respondent filed a posthearing motion to reopen the record
in order that it may adduce evidence that the Respondent’s board of
directors had never authorized Arena to negotiate with the Union.
The Union and the General Counsel opposed the motion on the
ground that the evidence to be offered is not newly discovered. The
motion is denied. The motion and the statements of opposition are
received in evidence as ALJ Exh. 1.
Arena’s statement to Conte—that he could fire Conte any-
time, when taken in context with his other statements then
that there was no union or contractual benefits at the Con-
tinental and that he would bar a union representative from
visiting the building when the contract provided for visitation
rights, and when those statements are viewed in context with
Conte’s having long been a union member covered by a con-
tract providing for various benefits—was a patent warning to
Conte that he would be discharged if he continued to support
the Union.
Later that summer, Arena in substance repeated the threat
to Conte.
The uncontroverted testimony of another porter, Fernando
Cruz, established that, on November 5, 1993, Arena similarly
unlawfully threatened him with discharge when he told Cruz
that he can fire all three porters just after he had stated that
he does not want the Union in the building.
C. The Alleged Unlawful Refusal to Bargain
On August 4, 1993, the Union was informed by Arena that
he was the new management agent for the Respondent.
The Union’s business agent, Cono D’Alora, testified as
follows as to ensuing negotiations. On August 25, 1993, he
met with Arena and with Robert Valdez, the president of the
tenants’ association at the Continental, and that they reached
an accord on the terms of a 3-year renewal contract which
provided for a number of modifications from the terms of the
expired contract. Valdez asked D’Alora to type up the ‘‘new
proposal . . . so that he can get the Respondent’s board (of
directors) to agree on it.’’ D’Alora prepared the documents,
labeled it as a contract proposal, and sent it to Arena which
he received on September 2, 1993. On September 15, 1993,
the Union sent a copy of that document to the Respondent
and asked it to sign and return it. Arena informed him on
September 20, 1993, that the Respondent’s board had ap-
proved the contract. In November 1993, D’Alora wrote the
Respondent’s counsel and renewed the request to sign but to
no avail.
Arena testified that D’Alora had presented him with a con-
tract proposal and wanted it signed. He related that he told
D’Alora that he would give the proposal to the Respondent’s
board of directors. Arena further testified that D’Alora later
asked as to the board’s decision and that he informed
D’Alora that the Respondent was ‘‘not in the position to
[sign a contract] at this time.’’
I am not persuaded that the Respondent had agreed to the
terms of a renewal contract. In light of Arena’s earlier coer-
cive statements to Conte, a porter as recounted above, the
Respondent’s conduct in having ceased deducting union dues
and having ceased contributing to contractual benefit funds,
and in the context of its later conduct, discussed below, it
is unlikely that Arena would have casually informed
D’Alora, as D’Alora’s account would have it, that the Re-
spondent’s board of directors accepted the Union’s proposed
contract. Further, D’Alora’s account was not persuasively of-
fered. It was adduced by direct reference to a copy of the
proposed agreement. Essentially, D’Alora related that Arena
‘‘agreed’’ to most items, that, as to others, Arena ‘‘wanted’’
changes as noted on the proposal to which he, D’Alora,
agreed and that, as to the remaining items, Arena accepted
those proposals when D’Alora objected to changing them.
After having observed Arena, I find it difficult to believe that
there were such perfunctory negotiations. He impressed me
as one who would not be so accommodating to the Union’s
proposals as D’Alora’s account suggests. It is more likely
that Arena took the proposal from D’Alora and passed it to
the Respondent’s board of directors which proceeded to ig-
nore it. I find that the evidence is insufficient to establish the
allegation of the complaint that the Respondent has refused
to sign a contract after it had agreed as to its terms.1
The General Counsel has contended, as an alternative, that
the Respondent unilaterally changed the existing contract
terms by having failed to continue to make contributions to
welfare, pension, and annuity funds and by effecting other
changes noted below. This alternative contention, as pre-
sented by the General Counsel, is premised on either of two
bases—first, that Spire had extended, on behalf of the Re-
spondent, the 1989–1992 agreement until a renewal was
signed, and second, that the terms of the prior agreement
continued in effect unless changed as a result of subsequent
negotiations. The Respondent has argued against the first as-
serted basis by denying that Spire extended or even had au-
thority to extend the 1989–1992 agreement. It is unnecessary
to pass upon that assertion in view of my findings below as
to the second basis urged by the General Counsel.
It is well settled that an employer is obliged to continue
to follow the terms and conditions of employment set out in
a collective-bargaining agreement until a new agreement is
reached or until good-faith bargaining leads to an impasse.
See R.E.C. Corp., 296 NLRB 1293 (1989). The Respondent
contends however that, as of July 1993, it did not have to
follow the agreement that expired on December 31, 1992, be-
cause a new board of directors took control of its operations;
it argues that the Respondent was thereby ‘‘reconstituted’’
and as such was obligated only to negotiate with the Union,
but as a ‘‘successor employer’’ it did not have to follow the
terms of the expired agreement. There is no precedent to
support the contention that, when stockholders vote in a new
board of directors, a successor employer is thereby created.
A stock sale may, under certain circumstances, be a factor
in establishing successorship. Compare Hendricks-Miller Ty-
pographical Co., 240 NLRB 1082, 1083 at fn. 4 (1979), with
Holly Farms Corp., 311 NLRB 273, 275–280 (1983). There
is, however, no authority to support a finding that a change
in corporate directors creates a new corporation.
In August 1993, Arena changed the working hours of
Francisco Palma, one of the porters at the Continental. This
change was effected without notice to the Union and thus
done in derogation of the Respondent’s duty to bargain col-
lectively with the Union.
The complaint alleges that the Respondent has unlawfully
withdrawn recognition of the Union. The evidence thereon is
ambivalent. While Arena told unit employees that they have
no union, he nonetheless met later with D’Alora to receive
the Union’s contract proposal and, later informed D’Alora, in
substance, that the Respondent did not accept that proposal.
In its brief, the Respondent has professed that it is obligated
998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to bargain with the Union but is not, as noted above, bound
to the terms of the expired agreement. I find the evidence in-
sufficient to establish that the Respondent has withdrawn rec-
ognition of the Union as the representative of the unit em-
ployees at the Continental.
I find then that the Respondent had in July 1993 unlaw-
fully changed existing terms and conditions of the unit em-
ployees. It has unlawfully failed to continue to make monthly
contributions to welfare, pension, and annuity funds as re-
quired by the contract referred to above; it has also failed to
deduct and remit union dues; it changed the work hours of
one of its porters, without notice to the Union; it rescinded
the requirement whereby the Union had access to the Re-
spondent’s premises; and it modified the vacation provisions.
It has not, however, withdrawn recognition from the Union
as the exclusive collective-bargaining representative of the
employees in the unit involved herein.
D. The Alleged Unlawful Discharges
As noted above, the Union represents the Respondent’s
porters. When the porters made inquires of Arena as to con-
tract benefits, they were told that they had none and that they
could be discharged at any time. In November 1993 one of
the porters told Arena that he would go to the ‘‘labor depart-
ment’’ when Arena rejected his request for overdue vacation
pay. A little over a week later, all three porters were dis-
charged. On November 19, 1993, they were each given a let-
ter by the Respondent informing them Spire is their real em-
ployer and that they should apply to Spire for work.
In view of the porters’ membership in and activities sup-
porting the Union, the Respondent’s union animus and the
obvious pretextual basis of the reason proffered by the Re-
spondent for their discharge, I find that the General Counsel
has established, prima facie that the Respondent discharged
these three employees because of their membership in, and
support for, the Union. Wright Line, 251 NLRB 1083 (1980).
I further find that the Respondent has offered no evidence to
demonstrate that it, nonetheless, discharged these employees
for a lawful reason. In these circumstances, the Respondent
has not met its burden under Wright Line, and I therefore
find that it discharged the three porters because they sup-
ported the Union.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent shall offer immediate and full reinstate-
ment to employees Theodore Conte, Fernando Cruz, and
Francisco Palma and to make them whole for any losses re-
sulting from their unlawful discharge as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987). The Respondent shall also remove from its files any
reference to the unlawful discharges and to advise the
discriminatees in writing that this has been done and that
their discharges will not be used against them.
The Respondent shall restore all terms and conditions of
employment to the status quo as they existed as of December
31, 1992, and shall make whole unit employees for any loss
of wages or benefits resulting from the Respondent’s failure
to continue these terms, in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (1970), with interest as
prescribed in New Horizons for the Retarded, supra. The Re-
spondent shall also reimburse its unit employees for any ex-
penses ensuing from the Respondent’s unlawful failure to
make the required benefit payments as set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), with in-
terest as prescribed in New Horizons for the Retarded, supra.
The Respondent shall also remit all fringe benefit amounts
which have become due. Any additional amounts due the
employee benefit funds shall be paid as prescribed in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7
(1979). The Respondent shall also forward to the Union the
union dues it should have deducted from employees’ wages,
with interest as prescribed in New Horizons for the Retarded,
supra.
CONCLUSIONS OF LAW
1. The Respondent is an employer employed in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization as defined in Section
2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act by having:
(a) Warned its employees in substance that they would be
discharged if they remained as members of the Union, sought
benefits available to them under its contract with the Union,
or failed to accept its prohibition against the Union’s exercis-
ing its contractual visitation rights.
(b) Committed the acts described below in paragraph 4
and 5.
4. The Respondent has engaged in an unfair labor practice
within the meaning of Section 8(a)(3) of the Act by having
discharged Theodore Conte, Fernando Cruz, and Francisco
Palma because of their membership in, and support of, the
Union.
5. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act by having:
(a) Ceased deducting union dues from the wages of its em-
ployees and forwarding those dues to the Union.
(b) Failed since August 6, 1993, to make payments to pen-
sion, welfare, and annuity funds provided.
(c) Failed to pay unit employees accrued vacation pay.
(d) Unilaterally changed the work hours of a porter.
6. The unfair labor practices described in paragraphs 3, 4,
and 5 affect interstate commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]