Field Bridge Associates

National Labor Relations Board - Board Decisions

Feb 14, 1992

306 N.L.R.B. 322 (N.L.R.B. 1992)

322
306 NLRB No. 72
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The motion to reopen the record cites a July 9, 1991 article in
New York Newsday (Brooklyn Edition) in which Shop Steward
Oakley Harvey stated that: ‘‘Maintenance workers [at Ebbet’s Field]
walked off the job in support of security guards who went on strike
to protest management’s refusal to pay benefits . . . .’’ Respondent
Field Bridge argues that had Harvey made this statement at the hear-
ing and been credited by the judge, the judge would have found that
the strike at Ebbet’s Field was for the unlawful purpose of forcing
Field Bridge to recognize and bargain with the Union for a unit of
guards and nonguards.
The General Counsel and the Union argue that because the Re-
spondent failed to call or subpoena Harvey to testify at the hearing,
this newly proffered evidence does not satisfy the Board’s Rules and
Regulations, Sec. 102.48(d)(1), which states, in pertinent part, that:
A motion to reopen the record shall state briefly the additional
evidence sought to be adduced, why it was not presented pre-
viously, and that, if adduced and credited, it would require a dif-
ferent result. Only newly discovered evidence, evidence which
has become available only since the close of the hearing, or evi-
dence which the Board believes should have been taken at the
hearing will be taken at any further hearing.
We find merit in the General Counsel’s and the Union’s conten-
tions. The evidence that the Respondent proposes to offer does not
satisfy the Board’s Rules. The Respondent failed to secure Harvey’s
testimony at the hearing in presenting its affirmative defense. A re-
spondent must exercise due diligence in gathering the evidence for
presentation of its case. See A. N. Electric Corp., 276 NLRB 887
fn. 11, 897 (1985). Further, we are not presented here with new evi-
dence indicating that a key witness may have committed perjury in
testifying regarding a material fact. Rather, the proffered evidence
bears only on the credibility of witnesses and as such does not war-
rant reopening the record. Compare Inland Container Corp., 273
NLRB 1856, 1857 (1985).
Field Bridge Associates and Local 32B-32J, Service
Employees International Union, AFL–CIO
Rachel Bridge Corp. and Local 32B-32J, Service
Employees International Union, AFL–CIO.
Cases 29–CA–13582, 29–CA–13788, 29–CA–
13720 (formerly 2–CA–23014), and 29–CA–
14230
February 14, 1992
DECISION AND ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On August 22, 1990, Administrative Law Judge
Raymond P. Green issued the attached decision. The
General Counsel and the Union filed exceptions and
supporting briefs. Respondent Field Bridge filed cross-
exceptions and a supporting brief. Respondents Field
Bridge and Rachel Bridge filed a brief in opposition to
the exceptions. The Union filed an answering brief to
Respondent Field Bridge’s cross-exceptions. There-
after, the Respondent filed a motion to reopen the
record, and the General Counsel and the Union filed
statements in opposition.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, to deny the Respondent Field Bridge’s mo-
tion to reopen the record,1 and to adopt the rec-
ommended Order.
We adopt the judge’s finding that neither Field
Bridge nor Rachel Bridge assumed the existing Realty
Advisory Board on Labor Relations (RAB) contract.
We find no merit in the contentions of the General
Counsel and the Union that the New York State
courts’ contrary findings are binding upon us.
Pursuant to the New York Civil Practice Law and
Rules, Field Bridge sought to quash arbitration pro-
ceedings instituted by the Union concerning incidents
which occurred prior to Field Bridge’s assuming own-
ership of Ebbet’s Field. In an oral ruling (there was no
written opinion), Judge Ira Grammerman of the Su-
preme Court of the State of New York found that Field
Bridge assumed the RAB agreement. The Court ob-
served that ‘‘there were [sic] some administrative
foulup, in that the document under which you [Field
Bridge] had specifically assumed the agreement was
never . . . signed or not presented because of what ap-
pears to be a rather complicating closing. And some-
body just missed the boat.’’ The Appellate Division af-
firmed, and the court of appeals refused permission to
appeal. In a separate proceeding, Judge Grammerman’s
ruling was found to be binding on Rachel Bridge.
The Board adheres to the general rule that if the
Government was not a party to the prior private litiga-
tion, it is not barred from litigating an issue involving
enforcement of Federal law which the private plaintiff
has litigated unsuccessfully. Allbritton Communica-
tions, 271 NLRB 201, 202 fn. 4 and sources cited
(1984), enfd. 766 F.2d 812 (3d Cir. 1985). Underlying
this rule is the long-recognized principle that ‘‘Con-
gress has entrusted to the Board exclusively the pros-
ecution of the proceeding by its own complaint, the
conduct of the hearing, the adjudication and the grant-
ing of appropriate relief. The Board as a public agency
acting in the public interest, not any private person or
group, not any employee or group of employees, is
chosen as the instrument to assure protection from the
described unfair conduct in order to remove obstruc-
tions to interstate commerce.’’ Amalgamated Utility
Workers v. Consolidated Edison Co., 309 U.S. 261,
265 (1940). See also National Licorice Co. v. NLRB,
309 U.S. 350, 362–364 (1940); Section 10(a) of the
Act (the Board’s power to prevent unfair labor prac-
tices ‘‘shall not be affected by any other means of ad-
justment or prevention that has been or may be estab-
lished by agreement, law, or otherwise . . .’’). Thus,
the Board, as a public agency asserting public rights
should not be collaterally estopped by the resolution of
private claims asserted by private parties. A number of
323FIELD BRIDGE ASSOCIATES
2 We are aware that our failure to afford collateral estoppel effect
to other state and Federal proceedings in certain circumstances is not
without its critics. See NLRB v. Donna-Lee Sportswear Co., 836
F.2d 31 (1st Cir. 1987). Donna-Lee is distinguishable, however. The
relationship between the Board and the Union here is not the same
as that which existed in the Donna-Lee case. There the existence of
a contract between Donna-Lee and the Union was the essence of the
unfair labor practice charge. The issue of assumption of the contract
is only one aspect of the unfair labor practices alleged here. The
complaint alleged a violation of the Act based on successorship, an
area where the Board’s judgments under the Act are given particular
deference, as well as an assumption of the labor agreement. See Fall
River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987). The General
Counsel has not shown that the state court addressed or decided the
successorship question. Further, in the instant case, the question of
whether there is a contract has implications concerning the nature of
a strike, i.e., whether that strike is an economic strike or an unfair
labor practice strike, and this issue, in turn, has implications con-
cerning Sec. 8(a)(3) of the Act. Where, as here, the contract issue
has implications concerning the nature of a strike and the provisions
of Sec. 8(a)(3) of the Act, we believe that the Board should not be
bound by a state court resolution of that contract issue.
3 We do not rely on the judge’s analysis of the consequences if
the Respondents had assumed the existing RAB contract covering an
inappropriate mixed unit of guards and nonguards. See Corporacion
de Servicios Legales, 289 NLRB 612, 613 (1988).
We note both the Ebbet’s Field and Washbridge units consisted of
guards and nonguards. Such units are not appropriate under the Act.
Because a successor employer is only obligated to bargain in an ap-
propriate unit, the Respondents had no obligation to continue to rec-
ognize or bargain with the Union in inappropriate units. See
Wackenhut Corp., 287 NLRB 374, 376 (1987); Rapid Armored
Truck Corp., 281 NLRB 371 fn. 1 (1986).
1 All dates are in 1987 unless otherwise indicated.
circuit courts agree. The Fourth Circuit Court of Ap-
peals has held that the Board’s primary and exclusive
jurisdiction to determine unfair labor practices renders
Board decisions dispositive where they conflict with
determinations in other forums. Peninsula Ship-
builders’ Assn. v. NLRB, 663 F.2d 488, 492 (4th Cir.
1981). Similarly, the Fifth Circuit Court of Appeals
has held that the Board’s determination of a work as-
signment dispute took precedence over a district
court’s ruling in a Section 301 arbitration proceeding
that conflicted with the Board’s determination. New
Orleans Typographical Union No. 17 v. NLRB, 368
F.2d 755, 767 (5th Cir. 1966). And the Eighth Circuit
Court of Appeals reaffirmed the Board’s jurisdictional
competence to determine matters properly within its
statutorily defined sphere, without being constrained to
grant res judicata or collateral estoppel effect to Fed-
eral District Court judgments rendered in closely re-
lated Section 301 proceedings. NLRB v. Huttig Sash &
Door Co., 377 F.2d 964, 970 (8th Cir. 1967).2 In this
case, the Board was not a party to the New York State
Court proceedings. Accordingly, we decline to give
them a preclusive effect.
We turn now to the merits of the General Counsel’s
contention that Respondents assumed the RAB con-
tract. We agree with the judge that they did not. We
have consistently exercised restraint in applying an as-
sumption-of-the-contract theory. We require clear and
convincing evidence of consent, either actual or con-
structive, before we will find that an assumption of the
contract occurred. See E G & G Florida, Inc., 279
NLRB 444, 453 (1986); All State Factors, 205 NLRB
1122, 1127 (1973). Here the evidence is ambiguous.
Although the seller of the two apartment complexes
appears to have understood that the Respondents
would assume any labor agreements, and the contract
of sale intimated as much, unmistakable written mani-
festation of the Respondents’ intent with respect to the
existing RAB contract is lacking. Further, the Re-
spondents did not take the steps necessary under the
RAB contract’s own terms to adopt it once the sale
was consummated. Thereafter, the Union engaged in
conduct inconsistent with any understanding that the
Respondents had assumed the existing RAB contract.
Thus, the Union sought to bind the new owners to the
Independent Apartment House Agreement or to nego-
tiate an entirely new agreement. Under these cir-
cumstances, like the judge, we find that the Respond-
ents and the Union3 did not actually or constructively
assume the existing RAB contract.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondents, Field Bridge Associates
and Rachel Bridge Corp., Brooklyn, New York, their
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Elias Feuer, Esq., for the General Counsel.
Martin Gringer, Esq. (Kaufnan, Frank, Naness, Schneider &
Rosensweig), for the Respondents.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm), for the
Charging Party.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. This case
was tried in New York, New York, on December 11 through
14, 1989. The charge in Case 29–CA–13582 was filed on
June 14, 1988, against Respondent Field Bridge. The charge
in Case 29–CA–13720 (formerly Case 2–CA–23014), was
filed against Rachel Bridge on August 29, 1988. The charge
in Case 29–CA–13788 was filed against Field Bridge on No-
vember 14, 1988. And the charge in Case 2–CA–14230 was
filed against Rachel Bridge on July 24, 1989.1
On February 27, 1989, the Regional Director for Region
29 issued a consolidated complaint against the Respondents
in Cases 29–CA–13582, 29–CA–13788, and 29–CA–13720
which was amended on July 27, 1989. On August 29, 1989,
the Regional Director issued a complaint in Case 29–CA–
14230 which was consolidated with the other cases on No-
324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As to dues and initiation fees, the complaint alleged that the Re-
spondents refused to make such payments from July 20, 1987. In the
case of pension and health payments, the complaint alleged that the
refusals commenced on August 1, 1987. As to all payments, the
complaint alleged that the Respondents continued to refuse to make
such payments from December 14, 1987, a date 6 months prior to
the filing of the unfair labor practice charges. The Union, however,
takes a different position than the General Counsel. It seeks a rem-
edy only from the date of the contract expiration dates on April 21,
1988.
3 It also is contended that the strike, which commenced on January
12, 1988, was caused and prolonged by the Respondent Field
Bridge’s unfair labor practices.
4 Both the Charging Party and the General Counsel, prior to the
opening of the hearing, made motions to strike certain portions of
the Respondents’ answer. In support of these motions, it was argued
that the Board was bound to accept as final, the opinions of two
state court judges in relation to two arbitration cases filed by the
Union against the employers. I rejected those motions and reaffirm
my earlier conclusions in that regard. My reasons for so doing are
set forth in my Order dated July 17, 1989, which is attached hereto
as App. A.
vember 29, 1989. In substance, the consolidated complaint in
the first three cases alleged as follows:
1. That Respondent Field Bridge Associates, on July 1,
1987, executed a contract of sale pursuant to which it, inter
alia, agreed to assume the collective-bargaining agreement of
the seller when Field Bridge purchased a group of apartment
buildings called the Ebbet’s Field Housing Complex.
2. That Respondent Field Bridge, on July 1, 1987, com-
menced operating the Ebbet’s Field complex retaining in its
employ a majority of the service and maintenance employees
and security guards who worked for the seller.
3. That Rachel Bridge Corp., on July 1, 1987, executed a
contract of sale pursuant to which it, inter alia, agreed to as-
sume the collective-bargaining agreement of the seller when
Rachel Bridge purchased Washbridge Apartments.
4. That Rachel Bridge Corp., on July 1, 1987, commenced
operating the Washbridge Apartments retaining in its employ
a majority of the service and maintenance employees and se-
curity guards who worked for the seller.
5. That both Respondents were successors and that the Re-
spondents violated Section 8(a)(1) and (5) of the Act when
they refused to remit dues and initiation fees and when, after
the collective-bargaining agreements expired, they unilater-
ally failed and refused to continue to make payments to the
contractually provided health and pension funds.2
6. That since on or about September 22, 1988, and until
certain dates set forth in the order amending complaint dated
July 27, 1989, the Respondent Field Bridge has refused to
reinstate certain of its employees who engaged in a strike
and who made unconditional offers to return to work on Sep-
tember 9, 1988.3
The complaint in Case 29–CA–14230 alleged that the Re-
spondent Rachel Bridge on April 21, 1989, had violated Sec-
tion 8(a)(1) and (5) of the Act by unilaterally granting em-
ployees a wage increase.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed, I make the following
FINDINGS OF FACT4
I. JURISDICTION
The Respondents admit and I find that they are employers
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act and that the Union is a labor organi-
zation within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Sale of the Ebbet’s Field and Washbridge
Apartment Complexes
There is an apartment building complex known as Ebbet’s
Field Housing located at 1720 Bedford Avenue, Brooklyn,
New York. Previous to 1987 that complex was owned by
New Field Housing Co., Inc. which in turn was owned by
a company called Cedar York Properties Limited Partnership.
In 1984 a company called Arco Management Corp. was
hired to be the managing agent of the property and Arco
signed an ‘‘assent agreement’’ whereby it (Arco) agreed to
be bound to the terms of the master agreement between a
multiemployer association called the Realty Advisory Board
on Labor Relations (RAB) and the Union. As such, the
Union became the collective-bargaining representative of cer-
tain of the employees at the Ebbet’s Field Housing complex.
There also is another apartment complex known as the
Washbridge Apartments located at 1365 St. Nicholas Ave-
nue, New York, New York, which was owned ultimately by
Cedar York. At this site, Arco was also engaged as the man-
aging agent and Arco signed the ‘‘assent agreement’’ on
May 2, 1985, whereby it (Arco) agreed to be bound by the
terms of the RAB’s collective-bargaining agreement with the
Union.
One of the many peculiarities in this case is that Arco es-
sentially was hired by the New York State Division of Hous-
ing in 1984 because of some dispute between the State and
the owners. As a result, the equitable owner, Cedar York,
neither had control over management nor access to records
and documents. Further, because of this situation, although
Arco was signatory to collective-bargaining agreements with
the Union, the owners of the properties were not privy to
those agreements and had not authorized Arco to enter into
them on their behalf. Indeed, it appears that neither Cedar
York nor the other companies holding title to the properties
ever had possession of the relevant collective-bargaining
agreements.
Both sets of apartment complexes employed service and
maintenance employees as well as guards. Pursuant to the as-
sent agreements, the collective-bargaining units in both com-
plexes included both guards and nonguards. Moreover, the
number of guards in each unit made up almost one-half of
the bargaining unit employees. In both cases, the employees
were employed by Arco and not by Cedar York.
The 1985 to April 21, 1988 Apartment Building Agree-
ment between Union and the RAB states at article IX:
1. If there is a bona fide sale or other transfer of title
of any member building, or a change of control through
a lease, or in the case of a non-corporate ownership, if
any person or persons completely divest themselves of
ownership or control by any arrangement, the succes-
sors in ownership or control, may, unless they have oth-
erwise indicated their intention not to be bound by this
325FIELD BRIDGE ASSOCIATES
agreement, join the RAB and adopt the contract within
30 days after such acquisition, provided:
(a) The building is not already bound by another
agreement.
(b) Written notice is given to the Union within 5
days after joining the RAB . . . .
. . . .
4. [I]n the event of a change of Employer in a build-
ing, the RAB shall use its best efforts to have the suc-
ceeding Employer join the RAB and become bound by
the terms of this Agreement.
. . . .
Nothing herein contained shall be deemed to limit or
diminish in any way the Union’s right to enforce this
Agreement against any transferee pursuant to applicable
law concerning rules of successorship or otherwise
. . . .
In 1985 Cedar York sought to sell the two properties and
entered into negotiations with the principals of Field Bridge
and Rachel Bridge. As Cedar York was not privy to the con-
tracts made by Arco, it sent a letter to the Department of
Housing (DHCR) on December 1, 1986, requesting among
other things, copies of all leases, service contracts, and union
contracts. The labor agreements and the service agreements
were not provided to Cedar York. Therefore the negotiations
for the sale of the properties proceeded with some important
information unknown to both sides.
On December 4, 1986, a sales contract was executed be-
tween Cedar York, Field Bridge, and New Bridge for the two
properties. The price was $45 million. Later this was reduced
to $44 million because the seller could not provide the cur-
rent financial statements, or any of the agreements that af-
fected the property such as service agreements, labor con-
tracts, or laundry service contracts.
In my opinion, it is important to note that Arco, which
never had any contract with Cedar York but who was the
employer of the affected employees, was not was not a party
involved in the sale of the properties.
The contract of sale dated December 4, 1986, states at 3
and 4, inter alia:
3. State of Title The Premises are sold and shall be
conveyed subject to the following matters:
. . . .
(n) All contracts or service agreements relating to
the operation or maintenance of the Premises and
any renewals or replacements thereof, which shall be
assigned to and assumed by the Purchaser on the
Closing Date by instrument in the form annexed as
Schedule I.
Paragraph 39 to the contract’s rider which was drafted by
the buyer’s representative, Elliot Gross, states:
Purchaser acknowledges that Seller makes no rep-
resentations as to contracts or service agreements relat-
ing to the operation or maintenance of the Premises or
employees, salaries and benefits, etc. relating to per-
sonnel involved in the operation or maintenance of the
Premises and that Purchaser will purchase the Premises
subject to all of the foregoing as same exist as of the
Closing Date.
In an affidavit, Gross stated:
(1) I am a general partner in Fieldbridge Associates
with Shalom Drizin, Reuben Schron, Murray Leifer and
Jack Gora. I acted as attorney for Fieldbridge in the ac-
quisition of Ebbet’s Field Housing Project . . . .
. . . .
(4) Before signing the contract of sale . . . we nego-
tiated various changes from the initial draft prepared by
the seller. It is my standard practice to seek inclusion
in the sales contract a provision that states ‘‘There is
no agreement in effect between the seller and any union
with respect to the building employee or employees and
there will be none at closing.’’ (If that is the fact.)
(5) Mr. Mantel indicated that he could not agree to
most of my requests for representations because of lack
of knowledge on the operation of the property since the
Cedar York people had been ousted by DHCR and
were persona non grata. Because of the inability of the
seller to make most of the requested representations,
paragraph 39 was added to the Rider.
(6) There was no specific discussion between Mr.
Mantel and me about the meaning of the language
‘‘contracts or service agreements’’ This phrase has a
common meaning among real estate practitioners. It
would include those agreements which deal with the
management and operation of the properties which are
the subjects of the transaction such as (1) elevator serv-
ice, (2) extermination, (3) boiler maintenance, (4) water
conditioning, (5) laundry services and (6) union con-
tracts if any.
(7) Local 32B was never mentioned during the nego-
tiations of the contract for sale. I was not familiar with
the fact that the ‘‘customs in respect to title closing
adopted by the Real Estate Board of New York Inc.’’
makes direct reference to 32B.
(8) Technically a service contract does not include
laundry or union contracts, but it is not uncommon to
see laundry or union contracts included in such a sched-
ule.
Between December 4, 1986, and the closing which took
place over a period of days in late June 1986, there were two
modifications in the sales agreement. They dealt with a rent
strike and and with potential asbestos problems which might
require repairs. No discussion was had between the seller and
the buyer as to union agreements or with respect to the
wages and benefits for employees.
On June 8, 1987, Arco sent a letter to Schron a principal
of the buyers. This letter, which did not refer to an labor
agreements with Local 32B-32J, stated:
[I]t is my understanding that you plan to close on
Washbridge and Ebbet’s Field on June 30th, I am con-
cerned over our management position . . . .
If it is not your intention to retain Arco . . . to man-
age the complexes, I would appreciate you notifying me
of this. It is unfair to our employees to put them in this
position, or to wait until the eleventh hour to let them
know where they stand. We could start making arrange-
326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ments with some of them concerning the continuation
of their employment with you or with my firm.
On June 22, 1987, Arco, apparently concerned about the
possibility of incurring severance pay liability at the two
apartment complexes, sent another letter to Schron which
stated:
This is to advice you of the terms of the referenced
Employer/Union Agreement as it pertains to employee
severance/continuation based on a bona fide sale or
transfer of title:
If the buyer does not offer employment at existing
wages to employees, the seller is responsible for 6
months severance pay to all terminated employees in
addition to any other accrued payments. The buyer and
seller may agree to split severance pay.
The buyer may choose to join RAB and adopt the
Agreement in which event, the severance pay will not
be required.
If the buyer retains a significant percentage of former
employees, the NLRB may appoint the current union as
the bargaining agents for the employees even if they
have been severed by the seller.
The above information was obtained from the Union
Agreement and the opinion of RAB’s attorney.
The closing for the two properties required several days
from June 25 to July 2, 1987. According to a Mr. Junghuns,
the attorney representing the seller, the intention was that all
outstanding agreements relating to the properties, including
labor agreements were to be assumed by the buyers. There
is, however, nothing in writing to explicitly indicate this in-
tention. However, given the statements in the Gross affidavit,
it may very well be that the buyers (you should pardon the
expression) were buying a pig in a poke.
As in the case of the initial sales contract, Arco was not
privy to, nor did it participate in, the transfer of the prop-
erties. Also, at no time prior to the closing did the Union ei-
ther participate in the transactions or attempt to contact the
buyers.
On or about July 1, 1987, title to the two properties trans-
ferred from Cedar York to the purchasers. The parties agree
that the following facts are not in dispute.
1. As of July 1, all the employees at both projects, includ-
ing both service and maintenance employees as well as
guards, were retained by the new owners and they continued
to do the same work and receive the same hourly wage rates,
sick leave, vacation, and holiday benefits. It is agreed that
the security guards at both apartment complexes were guards
as defined in Section 9(b)(3) of the Act.
2. Since July 1, 1987, neither Respondent has remitted
union dues to the Union. (The evidence indicates that at
Washbridge, Rachel Bridge has continued to deduct dues but
has not remitted them to the Union.)
3. Field Bridge, since July 1, 1987, has failed and refused
to make contributions to the health fund and pension fund for
employees at Ebbet’s Field.
4. Rachel Bridge since August 1, 1987, has failed and re-
fused to make contributions to the health fund and pension
fund for the employees at the Washbridge Apartments.
5. At the time of the takeover, there were about 69 em-
ployees in the Field Bridge unit (Ebbet’s Field) of which 24
to 27 were security guards.
6. At the time of takeover, there were about 61 employees
in the Rachel Bridge unit (Washbridge) of which about half
were security guards.
7. Between July 1 and August 1, 1987, at Washbridge,
Arco continued to manage the buildings.
B. Events Subsequent to the Sale
At the Washbridge Apartments, Arco was kept on as the
managing agent for a short period of time. According to
Vosel Autzon, the site manager at Washbridge, there was a
meeting between ARCO and Rachel Bridge on July 7, 1987
at which Jeffrey Goldstein, president of ARCO said that he
had contacts with the Union and thought he could obtain cer-
tain cost-saving measures for the new owners. As as result
of this meeting, Rachel Bridge asked ARCO to send a letter
to the Union and such a letter was sent on August 31, 1987.
This read:
The new Owner of the building has asked me to
meet with you to discuss the following items that we
would like you to bring to the attention of the proper
persons at Local 32 B-J.
(1) Since Arco . . . has been the managing agent,
two Porters have been added to the ranks of our union
contract. We are presently asking for those two Porters
to be removed from employment to reverse us back to
the normal size of our union contact. These two porters
were added since the 1983 contract was negotiated.
(2) The new Owners of Washbridge Apartments,
known as Rachel Bridge Associates, would like to re-
place the Security Guards that are presently on their
payroll, with a security guard service company. The se-
curity guard service can be Local 32 B-J members and
it is our intent to hire a security company with such
employees. At the present time we wish to change the
security in the building and go with a private con-
tractor.
(3) The new Owners . . . are requesting a reduction
in staff of 9 persons. It is agreed by this management
company that the maintenance and cleaning staff at
Washbridge Apartments is overstaffed by nine persons
and a reduction of these persons would not decrease the
services to the tenants. We would reduce the staff by
attrition.
At the Washbridge Apartments, the evidence shows that
for the month of July 1987 moneys for pension and welfare
were deducted from employees earnings and remitted to the
Union. However, there later arose a dispute between Rachel
Bridge and Arco as to the latter’s authority to make such
payments, with Rachel Bridge maintaining that those pay-
ments were unauthorized and invalid. There also is evidence
that at least for the security personnel at Washbridge, the Re-
spondent conferred with the Union regarding a number of
disciplinary and other personnel matters during the months of
August, September, and October 1987. Thus, there is some
indication as evidenced by memoranda, that Rachel Bridge
was operating Washbridge under the assumption that the pre-
327FIELD BRIDGE ASSOCIATES
vious union contract placed some limitations on its discre-
tion.
The situation at the Ebbet’s Field Apartments in the period
immediately after the sale was somewhat different, one rea-
son being that Arco was not retained there. Thus, unlike at
Washbridge, the Respondent at Ebbet’s Field as of July 1,
1987, not only ceased remitting union dues but also stopped
remitting money to the Union’s pension and welfare plans.
Union Representative Lorry McGowan testified that in
July 1987 he met with Field Bridge Representatives Klein
and Safrin at Ebbet’s Field. He states that when he got there
Safrin said: ‘‘The union finds out quick; already you’re
here.’’ McGowan states that he mentioned that we would
like to have them sign a contract eventually but that this
could be discussed at a later date.
According to McGowan he again spoke with Safrin in
mid-August 1987 and told Safrin that he would like to bring
down a contract for signature. McGowan states that when he
delivered the contract a day or two later, he told Safrin that
there was no pressure to sign it right then; that he should
have his attorney look it over and get back to him in a cou-
ple of weeks. According to McGowan, Safrin said that he
would go over it with the attorney and that the company’s
principals could sign it.
It is noted that the contract tendered by McGowan to
Safrin for Ebbet’s Field, was not the RAB agreement that
Arco had previously assented to. Rather, it was the Inde-
pendent Apartment House Agreement.
Later in August 1987, McGowan called Safrin to let him
know that there was an arbitration hearing scheduled relating
to the discharge of an employee by Arco prior to the transfer
on July 1. According to McGowan, he also asked what was
happening with the contract and that Safrin told him not to
worry, that it would be signed.
On September 18, 1987, the Union in relation to the arbi-
tration case, sought to add Field Bridge as a party to that
proceeding.
On October 29, 1987, the Union sent a letter to Rachel
Bridge (Washbridge Apartments), enclosing a copy of the
Independent Apartment House Agreement. (Not the RAB
agreement.) The letter read:
The enclosed agreement is the standard industry-
wide collective bargaining agreement. This agreement
has already been negotiated and, accordingly, is not a
proposal. You are being offered the opportunity to enter
the enclosed agreement with the Union. In the event
that you wish to avail yourself of this opportunity,
please sign both of the enclosed agreements and return
them to the Union. Upon receipt of same, we shall re-
turn a fully executed copy to you.
In the event you do not wish to avail yourself of this
agreement, please advise and we will arrange for the
commencement of negotiations and will submit written
proposals for a new collective bargaining agreement.
On December 1, 1987, the Union wrote to the Office of
the Contract Arbitrator seeking to amend a pending arbitra-
tion case against the prior owners and Arco to add Rachel
Bridge as a party. Thereafter, on February 4, 1988, the Union
sought arbitration against Rachel Bridge under the RAB con-
tract for laying off the guards. In relation to these actions,
the company sought to enjoin the arbitrations in state court.
However, in the case of Rachel Bridge, Administrative Law
Judge Moskowitz seemingly accepted the Union’s contention
that Rachel Bridge had assumed the predecessor’s contract
and she refused to stay the arbitrations.
On August 11, 1988, Rachel Bridge’s new attorney, Mar-
tin Gringer, sent a letter to Sturm regarding the Washbridge
Apartments. This read:
As you also are aware, my client has taken the posi-
tion that it did not assume any collective bargaining
agreement in effect when it purchased Washbridge
Apartments in July, 1987. This issue is presently being
litigated in the state courts. Inasmuch as the parties
have been unable to agree upon the terms of a collec-
tive bargaining agreement, my client would have the
right under the . . . agreement to provide ten days writ-
ten notice to cancel any prior agreement, if it had as-
sumed such a contract. This letter constitutes ten days’
notice of such cancellation of any collective bargaining
agreement that may exist between the parties. This no-
tice of cancellation is without prejudice to my client’s
position that it has not assumed the . . . agreement.
It is also my understanding that on or about August
31, 1987 my client gave notice to the Union that it did
not recognize it as the collective bargaining agent for
guards and security personnel employed at Washbridge
Apartments. In the event, however, that a court or gov-
ernment agency ultimately finds that there was a con-
tact in existence at any time, this letter shall constitute
notice that my client wishes to withdraw any recogni-
tion of the Union as the representative of guards or se-
curity personnel upon the expiration of any contract
that may be ultimately held to have existed.
C. The Negotiations and Strike at Washbridge
Apartments
As noted above, the Union on October 29, 1987, tendered
to Rachel Bridge a copy of the Independent Apartment
House Agreement.
According to Rachel Bridge’s site manager, Vosel Autzon,
a meeting was held on November 24, 1987, at the offices of
the Company’s attorney Joseph Reichbart. Autzon testified
that Reichbart said that the Company was willing to nego-
tiate but needed relief including: (1) reduction of the mainte-
nance staff; (2) elimination from any contract of the security
staff; and (3) absolution from any prior arbitrations involving
the prior owners. He states that the Union took the position
that it didn’t bargain away men and that it wanted the Com-
pany to sign the Independent as opposed to the RAB con-
tract. According to Autzon, the Union stated that the Com-
pany could not get the RAB contract because the 30-day pe-
riod had run. He testified that no one from the Union took
the position that the Company had assumed the predecessor’s
RAB contract.
On December 18, 1987, the Union sent a letter to the Of-
fice of the Contract Arbitrator reading in pertinent part:
Our firm represents Local 32B-32J . . . New Bridge
Housing Co., Inc. by its agent Arco . . . has assented
to be covered by the 1985 Apartment Building Agree-
ment between the Union and the Realty Advisory
Board . . . .
328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A dispute has arisen concerning the Employer’s fail-
ure to honor Article IX of the Agreement, when it, in
or around June, 1987 sold the premises to an entity, Ra-
chel Bridge Associates. This entity did not employ the
building service employees at the then existing wages,
hours, and working conditions. In addition, the suc-
cessor has failed to cover any employees with medical
insurance, pension coverage, or pre-paid legal services.
As a result of the above, the Union will seek as a
remedy damages of severance pay for each unit em-
ployee of six months pay, contributions, plus liquidated
damages and interest to the respective Funds, and such
other relief as the arbitrator seems just and proper.
Like the similar letter sent on December 17 regarding
Ebbet’s Field, the Union named the parties as being New
Bridge (the old owner), Arco, and the RAB.
On January 7, 1988, Rachel Bridge subcontracted out the
security guard work at the Washbridge Apartments.
On January 13, 1988, the service and maintenance em-
ployees at Washbridge commenced a strike. After the strike
commenced a meeting was held between the Union and the
Employer. According to Autzon, Attorney Reichbart asked if
the Union would let the men work while negotiations were
going on. He states that the Union’s attorney, Sturm, said
that they would not call off strike until they got a signed
agreement, that he was not willing to accept the Company’s
prior proposals and the he would bring in the Union’s pro-
posal on the following morning. According to Autzon, when
Reichbart asked for contract similar to the RAB contract but
with concessions, Sturm said the Company could have the
RAB contract and thereafter ask for reductions.
According to Autzon, on January 14, the Union presented
its contract proposal which called for a large wage increase.
He states that when the Company said that the proposal was
preposterous, Sturm said the increase was from savings de-
rived from letting the security people go.
On the afternoon of January 14, 1988, the strikers at
Washbridge returned to work. Union Agent Pizzaro told
Autzon that the Union was willing to negotiate with a dead-
line of January 25, while the men worked.
On January 15, 1988, Reichbart sent a letter to the Union
reading:
We wish to state that management is willing to com-
mence immediate negotiations and attempt to conclude
a collective bargaining agreement on or before January
25, 1988 provided the Union meets promptly and con-
tinuingly with management . . . .
We reiterate that management is willing to abide by
all of the conditions of the Union’s contract with the
. . . RAB, which is expiring in April, 1988 and is will-
ing to abide by whatever contract is negotiated by the
Union and the RAB for any period after April 21, 1988
on a one year basis or a three year basis.
Management also takes the position: (1) that the
maintenance employees constitute a unit of 27 full-time
employees; and (2) management will not be responsible
for any pending or other arbitrations arising from any
incidents prior to July 1, 1987, the date of the passage
of title from the previous Seller . . . .
Management will pay all dues and benefits under the
Union’s contract with the RAB as we understand them,
retroactive to that date.
Management also takes the position that a request or
a bargaining demand which has been made . . . for a
general wage increase . . . of $1.50 . . . from which
the Union refused to budge . . . is not evidence of bar-
gaining in good faith . . . .
If there is no substantial movement from that posi-
tion . . . to attempt to make an ‘‘example’’ of this em-
ployer as has been stated by the Union representatives,
management will withdraw any offers . . . and seek a
10% reduction in all wages and other conditions of em-
ployment.
D. Negotiations with Field Bridge Regarding
Ebbet’s Field
In November 1987, Chuck Ellman, a labor consultant re-
tained by Field Bridge, contacted Union Representative
Kevin McCulloch and said that he wanted to negotiate for
a contract covering the employees at the Ebbet’s Field
project. He states that McCulloch referred him to Serge Jean-
Jaques the Union’s district manager whereupon a meeting
was arranged at the Union’s office for December 1, 1987.
According to Ellman, at the meeting on December 1,
1987, he said that the Company wanted to negotiate a con-
tract excluding guards. According Ellman, the Union’s attor-
ney Ira Sturm said that although he was unhappy with the
Company’s position, he understood that under the law the
Union was not entitled to recognition in a mixed unit.
Ellman states that Sturm said that there were three types of
contracts to chose from: (1) the RAB contract; (2) the inde-
pendent industry agreement; and (3) a new contract nego-
tiated from scratch. According to Ellman, Sturm asked the
union representatives if Field Bridge had ever signed an as-
sumption or assent agreement and the union agents acknowl-
edged that the only assent agreement they had in their
records was one signed by Arco in 1985 for Ebbet’s Field.
According to Ellman, when the Union pointed out that the
Employer was deducting union dues, he responded that when
the payroll records maintained by Arco’s computer company
were transferred, the deductions were automatically made
and it was the Employer’s intention to return the dues to the
employees. Ellman states that when Sturm asked if the new
employer had made any plans with respect to security
guards, he replied that the company was looking to sub-
contract this work to an outside guard company. He states
that Sturm suggested that the company consider either hiring
a guard service already under contract with the Union or a
guard service that would agree to hire the existing guards.
According to Ellman, he agreed to provide a copy of the pur-
chasing agreement when it was requested by Sturm.
On December 17, 1987, Field Bridge subcontracted out the
security guard work. At this time there were 23 security
guards employed at Ebbet’s Field.
Also on December 17, 1987, the Union’s attorney sent a
letter to the RAB office of the contract arbitrator reading:
Our firm represents Local 32B-32J . . . New Field
Housing Co., Inc. by its agent Arco Management Corp.,
has assented to be covered by the 1985 Apartment
Building Agreement between the Union and the Realty
329FIELD BRIDGE ASSOCIATES
Advisory Board . . . for its employees at 1720 Bedford
Avenue.
Said Agreement provides for the submission of dis-
putes to the Office of the Contract Arbitrator.
A dispute has arisen concerning the Employer’s fail-
ure to honor Article IX of the Agreement, when it, in
or around June 1987, sold the premises to an entity,
Field Bridge Associates. This entity did not employ the
building service employees at the then existing wages,
hours, and working conditions. In addition, the suc-
cessor has laid off approximately 25 unit employees
and failed to cover any employees with medical insur-
ance, pension coverage, or pre-paid legal services.
As a result of the above, the Union will seek as a
remedy damages of wages for the 25 laid-off employees
for the duration of the collective bargaining agreement,
severance pay for each unit employee of six months
pay, contributions, plus liquidated damages and interest
to the respective Funds, and such other and further re-
lief . . . .
In the above-quoted letter, the Union asserted that the par-
ties were the old owner, New Field Housing Co., Inc., the
old manager Arco and the Realty Advisory Board. Field
Bridge the new owner, was not named by the Union as one
of the parties.
Ellman testified that at a meeting on December 22, 1987,
Sturm said that the Company no longer had the option of
having the RAB agreement because that contract required a
purchaser to agree to assume the RAB contract within 30
days of a closing. According to Ellman, Sturm said that the
Union wanted the independent agreement, excluding guards,
retroactive to the date of purchase. Ellman states that Sturm
said that because the Company was saving money by sub-
contracting out the guard work, this money should be given
to the remaining employees. Ellman states that Sturm also
said that he had obtained a copy of the purchase agreement
from the seller and that he thought he could make out an ar-
gument that the buyer had assumed the RAB contract.
On January 11, 1988, an internal memorandum was sent
from McCulloch to Donald Mumm regarding both apartment
complexes This read:
President Bevona met with me on January 8, 1988
and instructed me to issue strike authorization for the
above two buildings. We are to strike only with the
maintenance employees and use regular on-strike signs.
The security guards should not assist in the picketing
and should not become involved in the strike in any
way . . . .
At Ebbet’s Field the strike began on January 12, 1988.
The service and maintenance employees who participated in
the strike were told by Union Agent LaRosa that they were
going on strike because the Company was not making pay-
ments to the health fund, was not remitting dues, and was
not honoring the contract. According to LaRosa, he also told
the employees that the strike was to get the company to the
bargaining table to negotiate. The picket signs read, ‘‘On
Strike.’’
In response to the strike, Field Bridge entered into a verbal
arrangement with M&M Maintenance Corporation to provide
service and maintenance work at the Ebbet’s Field site. This
subcontracting agreement was terminable at will at the option
of either party. (This did not apply to Rachel Bridge.)
The Union tendered a contract proposal to Field Bridge on
January 14. By its terms, it is clear that at this time the
Union was seeking to negotiate a new contract and was not
seeking to bind the Respondent to the Arco’s agreement. In
this regard, Ellman states that Sturm said that the Union no
longer wanted the existing independent contract, but wanted
to set new industry standards. (The RAB contract was to ex-
pire in April 1988, 4 months away.) Ellman states that he
said that the Company would agree to any proposals that the
Union wanted so long as the Union agreed that the Company
would get the same as what ultimately was agreed to be-
tween the Union and RAB. According to Ellman, when the
Union refused, the Company made a proposal for a reduced
wage increase and for retroactivity. No agreement was
reached.
On January 14 or 15, 1988, the Union sent a newsletter
to the residents of Ebbet’s Field indicating the Union’s posi-
tion regarding the strike:
On or about July l, 1987 New Field Housing pur-
chased . . . the complex known as Ebbet’s Field Hous-
ing. Since the closing, the new owner stated that they
wanted it strictly understood that they would never as-
sume the contract with Local 32B-32J covering the
long-term maintenance and security employees. They
made it perfectly clear that it was their intention to
drastically reduce the wages and benefits of the security
personnel who had been employed at this housing de-
velopment for approximately 30 years . . . .
They then proceeded to demonstrate the absurdity of
this statement by engaging SSI Security who brought in
new guards and reduced the former wage scale in ex-
cess of one-half.
After negotiating for several months, and after seeing
what had happened to the security guards, the Union in
anticipation of the same callous disregard for the main-
tenance employees, had no alternative but to strike the
housing development . . . .
On January 28, Field Bridge sent letters to its employees
reading:
We have become aware that our payroll dept. has made
improper deductions from hour wages. Enclosed you
will find repayment of those improper deductions, along
with accumulated interest.
On February 16, 1988, Field Bridge obtained an Order to
Show Cause in a New York court seeking to stay the pre-
viously described arbitration hearing. As noted above, the
Union had sought to add Field Bridge as a party to a griev-
ance that had arisen before it took over the property. On
April 26, Judge Gammerman, apparently agreed with the
Union’s contention that Field Bridge had assumed the RAB
contract, and issued an oral order refusing to stay the arbitra-
tion. In this regard, it seems to me that the the first time that
the Union seriously contended that either Field Bridge or Ra-
chel Bridge had assumed the RAB contract was during the
the court proceeding.
330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On March 3, 1988, Ellman sent a letter to the Union noti-
fying it that the Employer contemplated permanently subcon-
tracting out all janitorial/porter work at Ebbet’s Field.
On April 21, 1988, the contract between the Union and the
RAB expired.
On May 6, 1988, Ellman sent a mailgram to Sturm regard-
ing the Ebbet’s Field Apartments as follows:
Pursuant to Article XVIII of the expired RAB contract
with . . . Local 32B-J, for the employer we herein de-
mand to immediately meet to negotiate a successor
agreement. This notice is given based upon the recent
decision in New York State Supreme Court. It should
not be construed as a waiver by the employer of any
statutory or procedural recourse available to it.
On May 9, 1988, the Union sent a letter to the contract
arbitrator setting forth alleged contract breaches by Field
Bridge including:
On or about December 17, 1987, the employer in viola-
tion of Article IV of the Agreement discharged its secu-
rity employees without giving them a written statement
getting forth the reasons for the discharge.
At an arbitration hearing held on February 15, 1989, the
Union took the position that it sought backpay for the guards
at the contract rate through the expiration date of the contract
and reinstatement by Field Bridge to their former jobs.
On June 10, 1988, Martin Gringer sent the following letter
to Ira Sturm:
This office now represents Field Bridge . . . in its
. . . negotiations with Local 32B-32J. As you also are
aware, my client has taken the position that it did not
assume any collective bargaining agreement in effect
when it purchased Ebbet’s Field Apartments in July,
1987 . . . . Inasmuch as the parties have been unable
to agree upon the terms of a collective bargaining
agreement, my client would have the right under the
. . . agreement to provide ten days written notice to
cancel any prior agreement, if it had assumed such a
contract. This letter constitutes ten days’ notice of such
cancellation . . . . This notice of cancellation is with-
out prejudice to my client’s position that it has not as-
sumed the . . . agreement.
It is also my understanding that on or about Decem-
ber 1, 1987 my client gave notice to the Union that it
did not recognize it as the collective bargaining agent
for guards and security personnel employed at Ebbet’s
Field Apartment. In the event, however, that a court or
government agency ultimately finds that there was a
contract in existence at any time, this letter shall con-
stitute notice that my client wishes to withdraw any rec-
ognition of the Union as the representative of guards or
security personnel upon the expiration of any contract
that may be ultimately held to have existed.
On June 1, 1988, Sturm replied:
The Union’s position is that the Employer cannot
have it both ways. Either there was an assumption of
the Agreement, in which event the parties are obligated
to bargain to impasse prior to any unilateral changes,
or there was no assumption, in which case the parties
are merely obligated to bargain based upon the recogni-
tion by your client of the Union.
I am not aware of any provision allowing your client
ten days to cancel an agreement it does not recognize.
Your client must first recognize the existence of the
agreement before it can exercise options thereunder.
E. The Issue Relating to Reinstatement of the Strikers
at Ebbet’s Field
In the beginning of September 1988, all the strikers at
Ebbet’s Field asked to go back to work.
On September 22, 1988, Field Bridge sent the following
letter:
I am in receipt of your request for reinstatement. Unfor-
tunately, we are not in a position to offer any striking
employees reinstatement until such time a union agree-
ment has been reached . . . .
The above letter was sent to employees Bolivar Arias,
Ryland Barrett, Anthony Brown, Manuel Carvatal, Anthony
De Chiara, Edward Doyle, Elbert Escano, Juan Escano, Rob-
ert Burst, Richard King, Andre LaRochel, Arthur LeGros,
Raphael Louis, Russell Minnifield, Johnson Pettway, Arnold
Pinder, George Rapley, Omar Redman, Maceo Stephens, Fest
Thorne, Roosevelt Townsend, and Jose Zuna.
Also on September 22, 1988, Field Bridge sent a different
letter to employees James Ellis, Owen Hackett, Oakley Har-
vey, McKinley King, and Fraiser Townsend. This read:
I am in receipt of your request for reinstatement. Unfor-
tunately, when the strike began, a permanent replace-
ment was hired to take your place. However, your name
has been put on a preferential hiring list. If and when
a vacancy occurs, you will be given first consideration
for employment provided a union agreement has been
reached by that time . . . .
On April 10 and May 5, 1989, Field Bridge offered rein-
statement by letters reading:
Please be advised that you are immediately reinstated
to your previous position of employment with Field
Bridge Associates. Please contact the undersigned so
that we may schedule your return to work.
If we do not hear from you within two weeks of the
date of this letter, we will assume you are not interested
in returning to work.
Copies of the April 10 letter were sent to Edward Doyle,
Arthur LeGros, Raphael Louis, Russell Minnifield, and Ar-
nold Pinder.
Copies of the the May 5 letters were sent to Ryland Bar-
rett, Juan Escano, Robert Hurst, Andre LaRochel, and Frasier
Townsend.
The evidence shows that those employees who returned to
work in response to the April 10 offer were told that they
were to be employed by the maintenance subcontractor, M
331FIELD BRIDGE ASSOCIATES
5 According to employee Robert Hurst, who returned to work and
was put on the payroll of M & M, he returned to the same job, with
the same pay and the same hours. He says that M&M made him
work harder than he had worked previously.
6 The Union also asserts that the Respondents should be bound to
the previous collective-bargaining agreements as a matter of law, be-
cause they ‘‘merely purchased the assets’’ of the predecessor. This
argument is rejected. The evidence shows that the sale of these prop-
erties involved an arm’s-length transaction and that the new owners
had no connection with the prior ownership. At most, the new own-
ers might be considered as successors but this is not a situation
where an alter ego was created or where the preexisting company
has continued to exist in only slightly modified form. (For example
through a stock transfer.) Cf. McAllister Bros., 278 NLRB 601
(1986), enfd. 819 F.2d 439 (4th Cir. 1987); EPE v. NLRB, 845 F.2d
483 (4th Cir. 1988).
& M.5 As a result, at least one (Arnold Pinder) refused to
accept such employment and he ultimately was offered reem-
ployment on the payroll of Field Bridge.
On May 5, 1989, Attorney Gringer wrote to Sturm regard-
ing the offers of reinstatement as follows:
[T]his is to confirm that the strikers who have been of-
fered reinstatement and who will be offered reinstate-
ment are being offered employment at the same terms
and conditions of employment that were in effect at the
time the strike commenced. No employee is required to
sign any document as a condition of reinstatement.
Moreover, any employee who objects to being on the
M&M payroll may be put on the Field Bridge payroll.
On May 11, Sturm replied:
I appreciate the fact that you have intervened in con-
nection with the impropriety of the original offers. I
would further appreciate it, if your client could advise
those who were offered reinstatement, that the prior
preconditions of employment have been removed and
that they will be employees of Field Bridge and not
M&M.
Thereafter on May 23, Field Bridge sent letters to employ-
ees Doyle, Minnifield, and Pinder reading:
This is to clarify any possible misunderstanding con-
cerning our previous offer of reinstatement. If you de-
sire, you may return to work on the Field Bridge pay-
roll. Moreover, you are not required to sign any docu-
ment as a precondition of returning.
You are being offered reinstatement pursuant to the
same terms and conditions of employment in existence
at the time the strike began in January 1988.
On July 24, 1989, Field Bridge sent letters to Arias Boli-
var, Anthony Brown, Edward Doyle, Juan Escano, Owen
Hackett, Andre LaRochel, Arthur LeGros, Raphael Louis,
Jose Luna, Russell Minnifield, Arnold Pinder, George
Rapley, and Fest Thorne. These read:
Please be advised that your prior request for uncon-
ditional reinstatement or substantially equivalent em-
ployment at Ebbet’s Field Apartments is granted. Please
contact the undersigned . . . to arrange for your return
to work.
If we do not hear from you within two weeks of the
date of this letter, we will assume you are not interested
in returning to work.
Notwithstanding the offers of reinstatement described
above, a number of the strikers never received any offers of
reinstatement. These were Manuel Carvatal, Anthony De
Chiara, James H. Ellis, Oakley Harvey, McKinley Ring,
Richard King, Johnson Pettway, Omar Redman, Maceo Ste-
phens, and Roosevelt Townsend.
F. Alleged Unilateral Wage Increases
The evidence in support of this allegation shows at most
that in April 1989 Rachel Bridge gave wage increases to its
employees in amounts similar or identical to those negotiated
between the Union and the Realty Advisory Board. The
record does not indicate the state of negotiations between this
Respondent and the Union after January 15, 1988, nor does
it indicate a failure to give notice to the Union. There is no
evidence that the Union sought to bargain with Rachel
Bridge after January 15, or that it sought to negotiate with
respect these particular wage increases. On the whole, it is
my opinion that the evidence is singularly lacking to make
out a prima facie case in relation to this allegation.
III. ANALYSIS
A. The Refusal-to-Bargain Issues
The complaints allege that both Respondents are succes-
sors to the previous owners and have incurred the duty to
recognize the Union. The complaints go further and allege
that the Respondents adopted or assumed the predecessors’
contracts with the Union and therefore are legally bound to
honor the terms and conditions of those collective-bargaining
agreements. In this respect, the complaints allege that the Re-
spondents violated Section 8(a)(5) of the Act by refusing to
remit to the union dues and initiation fees, and by failing to
make payments required by the contracts to pension and
health care funds. In essence, the General Counsel’s case is
that when the Respondents on July 1, 1988, took over the
properties, they had agreed to the terms of the respective col-
lective-bargaining agreements but then (almost immediately)
breached those agreements by failing and refusing to honor
their terms.
The Union also bases its contentions on the theory that the
Respondents assumed the collective-bargaining agreements.
However, the Union, unlike the General Counsel, argues that
it ‘‘is seeking in this case a remedy only from the date of
the expiration of the collective bargaining agreements to wit,
April 21, 1988.’’ Thus the Union’s position is that the Board
should not grant any monetary relief for any period up to
April 21, 1988, inasmuch as that relief was sought through
arbitration.6
Both the General Counsel and the Union take the position
that insofar as the ‘‘assumption’’ question, the Board should
be bound by the findings and conclusions of the state court.
They argue that I need not trouble myself with the factual
or legal questions surrounding the events leading up to the
sale and transfer of the properties, those issues having been
decided in another forum. As I have already indicated I re-
jected this argument for the reasons set forth in Appendix A.
332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Unfortunately, it seems that I must come to grips with the
facts, evidence, and legal principals relating to this odd and
perhaps unique set of circumstances.
Assuming for the moment that the Respondents should be
considered ‘‘successors’’ under the test of Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27 (1987), a successor
generally has no obligation to honor the predecessor’s labor
contract and may establish initial terms and conditions unilat-
erally. Thus in Saks & Co. v. NLRB, 634 F.2d 681 (2d Cir.
1980), the court stated:
A successor employer ordinarily may establish initial
terms and conditions of employment without bargaining
with the incumbent union . . . the NLRB relied on a
narrow exception articulated by the Court in Burns
. . . . Under that exception as developed by the NLRB,
a successor employer is required to bargain with respect
to initial terms only if it is perfectly clear that it plans
to retain all the employees in the predecessor unit and
hires those employees in a manner which leads them to
believe that they will be hired on the terms and condi-
tions that existed under the predecessor employer . . . .
In NLRB v. Burns Security Services, 406 U.S. 272, 287–
288, 291 (1972), the Court stated:
We also agree . . . that holding either the union or
the new employer bound to the substantive terms of an
old collective-bargaining contact may result in serious
inequities. A potential employer may be willing to take
over a moribund business only if he can make changes
in corporate structure, composition of the labor force,
work location, task assignment, and nature of super-
vision. Saddling such an employer with the terms . . .
contained in the old . . . contract, may make these
changes impossible and may discourage and inhibit the
transfer of capital. On the other hand, a union may have
made concessions to a small or failing employer that it
would be unwilling to make to a large or economically
successful firm. . . .
. . . .
In many cases, of course, successor employers will
find it advantageous not only to recognize and bargain
with the union but also to observe the pre-existing con-
tract rather than to fact uncertainty and turmoil. Also,
in a variety of circumstances involving a merger, stock
acquisition, reorganization, or assets purchase, the
Board might properly find as a matter of fact that the
successor had assumed the the obligations under the old
contract.
As made clear by the Court in Burns, supra, a successor
may be bound to the predecessor’s labor agreement if the
successor assumes it. However, it is equally clear that an as-
sumption can only come about as a bilateral agreement, evi-
denced either by a writing or by the conduct of both parties.
That is, the agreement must be a mutual one because a union
may not wish to be bound to a contract previously made with
an unhealthy predecessor and may want to bargain anew with
the new enterprise.
In the present case it is contended that Rachel Bridge and
Field Bridge assumed the predecessor’s collective-bargaining
agreements. They point to the contract of sale executed in
December 1986 and to the alleged continued application of
the contracts’ terms for a period of time after July 1, 1987,
when the properties were transferred. I do not agree.
The previous collective-bargaining agreements covering
the employees of the two properties was the RAB
associationwide contract assented to by Arco Management
Corp., which was the involuntary managing agent of the
properties for the owner, Cedar York. That is, Arco had been
placed in the position of managing the properties by the State
of New York over the objections of the owners because of
a dispute between the State and Cedar York. Thus, the owner
of the properties was neither party to nor privy to the collec-
tive-bargaining agreement. When negotiations took place be-
tween Cedar York and the Respondents, the terms of the col-
lective bargaining agreement were not known to either the
seller or the prospective buyers. Arco and the Union did not
play any role in the sale.
Assuming that the Respondents in the December 4, 1986
contract of sale indicated an intention of adopting ‘‘all con-
tracts or service agreements,’’ and even assuming that this
was understood as including the labor contracts, it is clear
that when this contract was made and when the properties
were transferred, neither the Union nor Arco were parties to
the transaction. Therefore, any agreement that the Respond-
ents made with Cedar York regarding a collective-bargaining
agreement is essentially meaningless because Cedar York
was not a party to the collective-bargaining agreement.
Further, after the properties transferred on July 1, 1987,
the evidence shows that the Union did not, until much later,
seek to bind the Respondents to the terms and conditions of
the existing RAB contract. Rather, the evidence shows that
when the Respondents agreed to bargain with the Union (for
the service and maintenance employees only), the Union
sought new and different contracts. Additionally, the Union,
in effect, acknowledged the nonviability of the RAB contract
vis-a-vis the Respondents by statements indicating that the
bargaining units would have to be drastically altered. (In fact
cut in half, because about 50 percent of the bargaining unit
employees of both Respondents at the time of the sale, con-
sisted of guards.) Thus by its actions it is evident to me that
the Union did not agree to any ‘‘assumption’’ of the pre-
existing labor agreements. As I have concluded that an
agreement to assume a contract must be by mutual consent,
I conclude that no such ‘‘assumption’’ took place in the in-
stant case.
However, assuming for argument’s sake that an assump-
tion did take place, there would still be an overriding defect
in the General Counsel’s case. If, as contended, the Respond-
ents assumed the RAB contract, that contract would not be
enforceable under the provisions of this Act because the bar-
gaining unit on its face, included both guards and nonguards.
Moreover, the inclusion of guards consisted of about half of
the bargaining unit employees in both cases.
Section 9(b)(3) of the Act provides in pertinent part:
[T]he Board shall not . . . decide that any unit is ap-
propriate for such purposes [collective bargaining], if it
includes, together with other employees, any individual
employed as a guard to enforce against employees and
other persons rules to protect property of the employer
or to protect the safety of persons on the employer’s
333FIELD BRIDGE ASSOCIATES
7 Field Bridge asserts it had no obligation to reinstate the strikers
because the strike was an unprotected rather than an economic or un-
fair labor practice strike. It argues that the strike was unprotected be-
cause it was in breach of a no-strike clause. I can’t take this argu-
ment seriously as the Respondent also argues that there was no con-
tract between it and the Union. Having concluded that the Respond-
ent did not assume the contract, it follows that there did not exist
a no-strike clause to be breached. It also argues that the strikers en-
gaged in unprotected activity because the picketing violated Sec.
8(b)(7) in that the Union was seeking recognition in a unit of guards
and nonguards. This is also rejected. First, the Company did not file
an 8(b)(7) charge. Second, although the Union may have sought re-
instatement for the guards, the Company has not, in my opinion, met
its burden of establishing that the Union, via its picketing, sought
initial recognition in such a unit. Rather, the evidence suggests that
the Union was willing to bargain in a unit consisting only of the
service and maintenance employees for whom recognition had been
granted. Third, the Company never indicated to the striking employ-
ees or to their Union that it viewed their picketing as being violative
Continued
premises; but no labor organization shall be certified as
the representative of employees in a bargaining unit of
guards if such organization admits to membership, or is
affiliated directly or indirectly with an organization
which admits to membership, employees other than
guards.
In Supreme Sugar Co., 258 NLRB 243, 245 (1981), the
administrative law judge dismissed an 8(a)(5) complaint al-
leging the failure to honor a contract vis-a-vis watchmen, in
view of his conclusions that despite a long history of bar-
gaining, the watchmen were guards as defined in Section
9(b)(3) of the Act.
In Wells Fargo Corp., 270 NLRB 787, 789–790 (1984),
the employer withdrew recognition from a union representing
guards and nonguards. The withdrawal of recognition in-
volved a bargaining unit of guards and recognition had origi-
nally been accorded on a voluntary basis. The Board dis-
missed the complaint and stated:
Finally we turn to the judge’s conclusion that the Re-
spondent should be ‘‘estopped’’ from withdrawing rec-
ognition because it had previously extended recognition
to the Union. In so concluding, the judge relied on
International Telephone & Telegraph Corp. [159 NLRB
1757 (1966), enfd. as modified 383 F.2.d 366 (3d Cir.
1967)]. In ITT, a Board majority held that an employer
was ‘‘estopped’’ from withdrawing recognition from a
union which it had voluntarily recognized for 13 years
in a mixed unit of professional and nonprofessional em-
ployees notwithstanding the fact that the professional
employees had never voted in self-determination elec-
tion as required by Section 9(b)(1) of the Act. In find-
ing a violation . . . the Board noted the consensual na-
ture of the parties’ relationship but also noted their long
bargaining history and the fact that the withdrawal oc-
curred in a context of other unremedied unfair labor
practices. Here by contrast, the parties’ relationship was
less than 1 year old when recognition was withdrawn
in a context free of other unfair labor practices.
In reaching its conclusion, the Board in ITT further
noted that its holding was ‘‘not to be construed as fore-
closing the professionals in the unit from seeking [a]
self-determination [election] at an appropriate time
. . . . In Utah Power, however, the Board determined
that the professional employees were not precluded
from asserting their statutory rights to a self-determina-
tion election although they had accepted their situation
for 43 years. In so finding, the Board distinguished ITT
and noted that the proceeding in Utah Power ‘‘was ini-
tiated at an appropriate time by professional employees
under a provision intended for their protection.’’ Con-
trary to the judge, we conclude that here the Respond-
ent was not estopped form withdrawing recognition
from the Union because the estoppel theory, as shown
in Utah Power, does not operate to preclude the in-
tended beneficiary of the statute from asserting rights
thereunder. Inasmuch as the Respondent obviously be-
longs to the class which is the intended beneficiary of
Section 9(b)(3), it was not estopped from asserting its
rights under that section by refusing to bargain with the
Union when it did.
In sum, while we agree that the Respondent and the
Union could enter into a valid voluntary collective-bar-
gaining relationship, we find that the Respondent was
privileged to withdraw from the relationship at the time
it chose to do so.
It is argued that I should follow New York Times, 270
NLRB 1267, 1272 (1984), and find an 8(a)(5) violation al-
though at the same time modifying the bargaining unit to ex-
clude the guards. However, that case is substantially distin-
guishable from the present case. In New York Times, the
company was held to have violated Section 8(a)(5) by with-
drawing recognition in relation to a group of nonguard em-
ployees who had been transferred to other jobs. As part of
its defense, the employer claimed that a longstanding bar-
gaining unit was defective because out of approximately
1500 employees, about 30 were guards. There was, however,
a real dispute as to the status of the 30 individuals and that
dispute was pending before the Board pursuant to a unit clar-
ification petition. To my mind this is very different from the
situation in the present case, where the contract to which the
Union wants to bind the Employer is, on its face, for a pro-
hibited unit of guards and nonguards. Also, unlike the New
York Times case, the bargaining units here consisted of an
equal number of guards and nonguards.
In short, the theory of the complaint is that the Respond-
ents assumed collective-bargaining agreements which they
thereafter breached. In my opinion the Respondents and the
Union did not agree to assume the previous contracts. More-
over, I conclude that even if they did, the contracts were fa-
tally flawed as they included guards and nonguards in the
bargaining units .
B. The Strike
Having concluded that the Respondents had no obligation
to honor the terms and conditions of collective-bargaining
agreements, it follows that the strikes against Field Bridge
and Rachel Bridge were economic and not unfair labor prac-
tice strikes.
As the strike at Rachel Bridge terminated almost imme-
diately, the only issue in the present case is whether Field
Bridge violated the Act by refusing to reinstate the Ebbet’s
Field strikers on their unconditional offers to return to work.7
334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of Sec. 8(b)(7). Indeed, after the Company ended the lockout, it of-
fered to reinstate most of the strikers, an action which in my opinion
constituted a waiver of this contention. This is viewed as analogous
to cases under Sec. 8(d) and (g) where an employer cedes the con-
tention that strikers lost their employee status once they are rein-
stated.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Economic strikers retain their status as employees and are
entitled to reinstatement on their unconditional offers to re-
turn to work. Failure to offer such strikers immediate rein-
statement will constitute a violation of Section 8(a)(3) of the
Act unless the employer has substantial and legitimate busi-
ness justifications for refusing to put them back to their
former jobs. Even where permanent replacements have been
hired during a strike, the employer must, on a striker’s un-
conditional offer to return to work, offer such reinstatement
when vacancies occur unless the strikers in the meantime
‘‘acquired regular and substantially equivalent employment.
Laidlaw Corp., 171 NLRB 1366 (1968). In circumstances
where the employer has refused to reinstate strikers who
have made unconditional offers to return to work, it is the
employer who has the burden of proof that its failure to offer
reinstatement was justified. See also Bralco Metals, 227
NLRB 973, 977 (1977).
In the present case the strikers made unconditional offers
to return to work in September 1988. In response, Field
Bridge sent letters stating that it would not offer reinstate-
ment until a union agreement was reached. The Respondent
asserts that it thereby locked out the employees at this point
and that such an offensive lockout therefore constituted a
substantial and legitimate business justification for refusing
to reinstate the strikers. I agree.
In Boilermakers Local 374 v. NLRB, 380 U.S. 300 (1965),
the Court held that the employer did not violate Section
8(a)(1) or (3) by locking out employees after an impasse had
been reached. In Harter Equipment, 280 NLRB 597 (1986),
the Board held that an employer may use temporary replace-
ments during a lockout for the purpose of bringing economic
pressure to bear in support of its legitimate bargaining de-
mands. See also B-Bar-B, Inc., 281 NLRB 250 (1986); Na-
tional Gypsum Co., 281 NLRB 593 (1986); Birkenwald Dis-
tribution Co., 282 NLRB 954 (1987). In Boilermakers Local
88 v. NLRB, 858 F.2d 756 (D.C. Cir. 1988), the court agreed
with Board’s conclusion that an employer may engage in an
offensive lockout while using temporary replacements.
In my opinion Field Bridge was privileged to convert the
economic strike into an economic lockout when the strikers
asked for reinstatement. As such, it is my opinion that it had
no obligation to reinstate these strikers so long as it main-
tained the lockout in support of its position vis-a-vis a collec-
tive-bargaining agreement with the Union.
The evidence indicates, however, that the lockout came to
an end on April 10, 1989, when the Employer began to make
offers of reinstatement to the strikers. Such offers were made
to various of the strikers in April, May, and June 1989, albeit
offers were never made to some of the strikers.
The lockout having ended on April 10, 1989, it was then
incumbent on the Employer to offer reinstatement to all the
strikers who had offered to return to work unless there was
as justifiable impediment to so doing. For example, if some
of the strikers had been permanently replaced before the
lockout and if those permanent replacements were shown to
have been employed as of April 10, that might excuse a fail-
ure to immediately reinstate an equal number of the strikers.
However, the evidence does not show that there were such
permanent replacements on Field Bridge’s payroll as of April
10. On the contrary, the evidence establishes that on January
12, 1988, Field Bridge subcontracted out the service and
maintenance work to M&M Maintenance Corporation and
that such subcontracting was intended to be a temporary ar-
rangement during the pendancy of the labor dispute. (It was
stipulated that the subcontracting arrangement was an oral
agreement and was terminable at the will of either party.)
Therefore, in the absence of evidence indicating any legiti-
mate justification, I conclude that the Respondent violated
Section 8(a)(3) of the Act by failing to offer reinstatement
to those strikers who were not offered reinstatement on April
10, 1989. A fortiori, it is clear that the Company violated
Section 8(a)(3) insofar as those strikers who were never of-
fered reinstatement at all.
CONCLUSIONS OF LAW
1. By failing to offer reinstatement on April 10, 1989, to
all the strikers who had previously offered to return to work,
Field Bridge engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and
Section 2(6) and (7) of the Act.
2. The Respondents have not violated the Act in any other
manner encompassed by the complaints.
REMEDY
Having found that Field Bridge has engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
In view of my conclusion that Field Bridge, on the termi-
nation of the lockout, failed to offer reinstatement to all the
strikers who had previously offered to return to work, it is
recommended that the Respondent be ordered to offer such
employees (other than those who did receive such offers on
April 10) immediate and full reinstatement to their former
positions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
losses they suffered from April 10, 1989. To the extent, how-
ever, that valid reinstatement offers were made to strikers on
May 5 and 23 and July 24, 1989, or at any time thereafter,
backpay should be terminated on whatever date a striker re-
ceived a valid offer of reinstatement. Backpay should be
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, Field Bridge Associates, Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
335FIELD BRIDGE ASSOCIATES
9 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.’’
1 As to dues and initiation fees, the Complaint alleges that the Re-
spondents refused to make such payments from July 20, 1987. In the
case of Pension and Health payments, the Complaint alleges that the
refusals commenced on August 1, 1987. As to all payments, the
Complaint alleges that the Respondents continued to refuse to make
such payments from December 14, 1987, a date six months prior to
the filing of the unfair labor practice charges.
(a) On the cessation of the lockout, refusing to reinstate
economic strikers on their unconditional offers to return to
work.
(b) In any like or related manner interfering with, restrain-
ing, 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 ef-
fectuate the policies of the Act.
(a) Offer reinstatement to all strikers who did not receive
such offers on April 10, 1989, to their former positions of
employment or, if those jobs no longer exist to substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, and make them whole for any
loss of earnings in the manner set forth in the remedy section
of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its facilities in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix B.’’9 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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 material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaints be dismissed
insofar as they allege violations of the Act not specifically
found.
APPENDIX A
ORDER
On February 27, 1989 a Consolidated Complaint was
issued in these cases by the Regional Director of Region 29
of the National Labor Relations Board. In pertinent part the
Complaint alleged that:
1. That Respondent Field Bridge Associates, on July 1,
1987 executed a contract of sale pursuant to which it, inter
alia, agreed to assume the collective bargaining agreement of
the teller when Field Bridge purchased a group of apartment
buildings called the Ebbets Field Housing Complex.
2. That Respondent Field Bridge, on July 1, 1987 com-
menced operating the Ebbets Field complex retaining in its
employ a majority of the service and maintenance employees
and security guards who worked for the seller.
3. That Rachel Bridge Corp., on July 1, 1987 executed a
contract of sale pursuant to which it, inter alia, agreed to as-
sume the collective bargaining agreement of the seller when
Rachel Bridge purchased Washbridge Apartments.
4. That Rachel Bridge Corp., on July 1, 1987 commenced
operating the Washbridge Apartments retaining in its employ
a majority of the service and maintenance employees and se-
curity guards who worked for the seller.
5. That both Respondents were successors and that the Re-
spondents violated Section 8(a)(1) & (5) of the Act when
they refused to remit dues and initiation fees and when, after
the collective bargaining agreements expired, they unilater-
ally failed and refused to continue to make payments to the
contractually provided Health and Pension Funds.1
The Respondents’ Answer denies that they assumed the
collective bargaining agreements and deny that they are
‘‘successors.’’ Further, the Answer asserts a number of af-
firmative defenses, one of which asserts that even if the Re-
spondents executed agreements assuming the sellers’ collec-
tive bargaining agreements, the Union by its subsequent acts,
repudiated such agreements.
The Charging Party contends that prior to the sale of the
Ebbets Field Complex it filed for arbitration in two cases in-
volving the discharge of employees by the former owner.
When it learned of the sale to Field Bridge it amended its
notice of arbitration to include the new owner. Field Bridge
then initiated an action in New York State Supreme Court
to stay the arbitrations and those cases were consolidated be-
fore the Honorable Ira Gammerman. The action to stay the
arbitrations was premised at least in part, on the argument
of Field Bridge that it had not assumed the collective bar-
gaining agreement when it purchased the property. In a pro-
ceeding where no witnesses were called or were subject to
cross examination, Judge Gammerman, on April 26, 1988,
issued an oral Decision denying a stay of the arbitration.
That Decision was affirmed by a one line Order of the Ap-
pellate Division on November 3, 1988. On April 4, 1989 the
New York State Court of Appeals denied Field Bridge’s re-
quest for permission to appeal to that Court.
A similar scenario was played out at the Washbridge
Apartments. Thus prior to the sale, the Union sent notices of
arbitration to the former owner and amended these after it
became aware of the sale to Rachel Bridge. Rachel Bridge
also moved in State Court to have the arbitration stayed
against it, contending, inter alia, that it had not assumed the
collective bargaining agreement when it purchased the prop-
erty. That case was assigned to the Honorable Karla
Moskowitz who, after the Appellate Division ruled in the
Field Bridge matter, issued an oral decision denying the stay
of arbitration. As in the prior case, no witnesses were called
or cross examined.
The Charging Party, with whom the General Counsel
joins, contends that I should strike Respondents’ Answer in-
sofar as it denies that Respondents assumed the collective
bargaining agreements. They also argue that I should strike
the affirmative defence which contends that the Union repu-
diated the contracts. The contentions of the Charging Party
336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I note that the Complaint on its face alleges units which combine
guards and non guards. This may or may not, depending on the
facts, raise an issue under Section 9(b)(3) of the Act. If so, it cer-
tainly was not an issue which was raised or decided in the State
Court proceedings.
and the General Counsel are premised on the findings in the
prior State Court proceedings, and it is argued that those
findings are binding on the same issues in this case. Such
a contention is not, however, consistent with current Board
law inasmuch as the Board was not a party in the State Court
proceedings. See Donna Lee Sportswear Co. Inc., 281 NLRB
719 (1986), enfd. denied 127 LRRM 2209 (lst Cir. 1987).
It is my opinion, having carefully reviewed the materials
submitted, that the issues raised by the Consolidated Com-
plaint and the Answer are complex as to both law and fact
and that they would best be resolved after a full hearing on
the issues.2
Based on the foregoing, it is Ordered that the Motions by
the Charging Party and the General Counsel to strike certain
portions of the Respondents’ Answer be and they hereby are
denied.
APPENDIX B
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 vio-
lated the National Labor Relations Act and has ordered 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 protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT, on the cessation of a lockout, refuse to re-
instate economic strikers when they unconditionally offer to
return to work.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL offer reinstatement to all strikers who did not re-
ceive such offers on April 10, 1989, to their former positions
of employment or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or other rights and privileges, and make them whole for any
loss of earnings and benefits they may have suffered.
FIELD BRIDGE ASSOCIATES