Medin Realty Corp

National Labor Relations Board - Board Decisions

May 13, 1992

307 N.L.R.B. 497 (N.L.R.B. 1992)

497
307 NLRB No. 88
MEDIN REALTY CORP.
1 The Respondents and Local 670 have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to
overrule an administrative law judge’s credibility resolutions unless
the clear preponderance of all the relevant evidence convinces us
that they are incorrect. Standard Dry Wall Products, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully exam-
ined the record and find no basis for reversing the findings.
2 In affirming the judge’s conclusion that the Respondents violated
Sec. 8(a)(2) and (3) by recognizing and entering into collective-bar-
gaining agreements with Stationary Engineers Local 670, we rely
solely on the judge’s finding that the General Counsel established
that, when recognition was extended, Local 670 did not represent an
uncoerced, unassisted majority of the Respondents’ employees. La-
dies Garment Workers v. NLRB, 366 U.S. 731 (1961). We find no
need to pass on the judge’s discussion of Bruckner Nursing Home,
262 NLRB 955 (1988), or on any other theory of violation advanced
by the General Counsel.
We also affirm the judge’s conclusion that the Respondents’ offi-
cials Meyer and Marks violated Sec. 8(a)(1) by statements made to
the nonemployee wife of employee Carlos Cruz. In accord with
Board precedent, the existence of the spousal relationship is suffi-
cient to warrant the inference that such statements would reasonably
tend to influence the employee spouse. E.g., Jennings & Webb, Inc.,
288 NLRB 682, 688–689 (1988), enfd. 875 F.2d 315 (4th Cir.
1989); Nebraska Bulk Transport, 240 NLRB 135, 144, 156 (1979),
enfd. in relevant part 608 F.2d 311 (8th Cir. 1979). Moreover, the
violations are particularly well established where, as here, the re-
spondent employer deliberately attempts to use the nonemployee
spouse to whom the interrogation and threats are directed as a con-
duit to employees, and where the employer fully intends and reason-
ably expects the nonemployee spouse to influence the employee
spouse or other employees. Walgreen Co., 206 NLRB 124 (1973),
enfd. 509 F.2d 1014 (7th Cir. 1975).
3 In accord with the Respondents’ exceptions, we shall strike from
the remedy section of the judge’s decisions the words ‘‘authorize
or’’ appearing in the sentence, ‘‘However, nothing in the Order here-
in shall be construed to authorize or require Respondents to with-
draw or eliminate any wage increase or other benefits in the employ-
ees’ terms and conditions of employment which may have been es-
tablished pursuant to those agreements, except with respect to the
agreements’ union security provisions, which may no longer be en-
forced.’’ See R.J.E. Leasing Corp., 262 NLRB 373 (1982). We shall
also substitute Order and notice provisions corresponding to the cor-
rected remedial language.
Medin Realty Corp. c/o Martin Meyer; 1466 Hold-
ing Ltd.; 1944 Holding Ltd.; 1163 Holding
Ltd.; 2395 Holding Ltd.; and 1113 Holding
Ltd. and Service Employees International
Union, Local 32E, AFL–CIO and Stationary
Engineers, Firemen, Maintenance and Building
Service Union, RWDSU, Local 670, Party in
Interest. Case 2–CA–23854
May 13, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 7 and September 17, 1991, Administra-
tive Law Judge Joel P. Biblowitz issued, respectively,
the attached decision and supplemental decision. The
Respondents and Stationary Engineers Local 670 each
filed exceptions and supporting briefs. The General
Counsel filed exceptions, a supporting brief, and an an-
swering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decisions and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order, as
modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondents,
Medin Realty Corp. c/o Martin Meyer; 1466 Holding
Ltd.; 1944 Holding Ltd.; 1163 Holding Ltd.; 2395
Holding Ltd.; and 1113 Holding Ltd., Bronx, New
York, their officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(a).
‘‘(a) Giving effect to the July 17, 18, and 19 collec-
tive-bargaining agreements they entered into with
Local 670 for these employees, or any renewal, exten-
sion, or modification of such agreements, unless and
until Local 670 has been certified by the Board as the
exclusive bargaining representative of such employees
in an appropriate bargaining unit; provided, however,
that nothing contained herein shall be construed as re-
quiring the Respondents to abandon or vary any wage,
hour, seniority, or other substantive terms of employ-
ment which they may have established in the perform-
ance of the contracts.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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 an abide by this notice.
WE WILL NOT recognize or bargain with Stationary
Engineers, Firemen, Maintenance and Building Service
Union, RWDSU, Local 670 as the collective-bar-
gaining representative of the employees at our build-
ings until Local 670 has been certified by the National
Labor Relations Board as the representative of such
employees.
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to herein relate to
the year 1989.
WE WILL NOT give effect to the July 17, 18, and 19
collective-bargaining agreements we entered into with
Local 670 for our employees, or any renewal, exten-
sion, or modification of such agreements, unless and
until Local 670 has been certified by the Board as the
exclusive bargaining representative of such employees
in an appropriate bargaining unit; provided, however,
that nothing contained herein shall be construed as re-
quiring the Respondents to abandon or vary any wage,
hour, seniority, or other substantive terms of employ-
ment which they may have established in the perform-
ance of the contracts.
WE WILL NOT recognize or bargain with Local 670,
or any other labor organization, at a time when such
labor organization does not represent an uncoerced ma-
jority of the employees at our buildings.
WE WILL NOT threaten our employees with reprisals
for engaging in activities on behalf of Service Employ-
ees International Union, Local 32E, AFL–CIO.
WE WILL NOT create an impression among our em-
ployees that their union activities are under surveil-
lance.
WE WILL NOT inform our employees that it would
be futile for them to select Local 32E as their collec-
tive-bargaining representative.
WE WILL NOT direct our employees not to sign au-
thorization cards on behalf of Local 32E.
WE WILL NOT interrogate our employees regarding
their activities on behalf of Local 32E.
WE WILL NOT solicit our employees to sign author-
ization cards for any labor organization that is not their
duly designated collective-bargaining representative.
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 withdraw and withhold all recognition
from Local 670 as your representative, unless and until
it has been certified by the National Labor Relations
Board as your exclusive representative.
WE WILL reimburse our employees for all dues and
fees withheld from their pay pursuant to the collective-
bargaining agreements we signed with Local 670.
MEDIN REALTY CORP.; 1466 HOLDING
LTD.; 1944 HOLDING LTD.; 1163 HOLD-
ING LTD.; 2395 HOLDING LTD.
Randy M. Girer, Esq., for the General Counsel.
Morris Tuchman, Esq., for the Respondent.
Steven H. Kern, Esq., for the Charging Party.
Richard M. Greenspan, Esq. and Karen Hertz, Esq., for the
Party in Interest.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me in New York, New York, on May 13 and
14, 1991. The charge, first and second amended charges
were filed by Service Employees International Union, Local
32E, AFL–CIO (Local 32E), on September 20 and 27 and
October 25, 1989.1 The consolidated complaint, which issued
on May 31, 1990, alleges that 1466 Holding Ltd. (1466),
1944 Holding Ltd. (1944), 1163 Holding Ltd. (1163), 2395
Holding Ltd. (2395), and 1113 Holding Ltd. (1113), and
Medin Realty Corp. (Medin) (collectively Respondents) vio-
lated Section 8(a)(1) and (2) of the Act by recognizing Sta-
tionery Engineers, Firemen, Maintenance and Building Serv-
ice Union, RWDSU, Local 670 (Local 670) as the collective-
bargaining representative of their employees (the building su-
perintendents of the buildings) at a time when Local 670 did
not represent an uncoerced majority of these employees. The
consolidated complaint further alleges that Respondents also
executed collective-bargaining agreements containing union-
security agreements with Local 670 in violation of Section
8(a)(1) and (3) of the Act. The complaint also alleges that
Medin violated Section 8(a)(1) and (2) of the Act through the
actions of Martin Meyer, its owner, and David Marks, its
managing agent, admitted agents of Respondents. It is al-
leged that in May or June, Medin, at its building at 2334
Creston Avenue, Bronx, New York (the Creston building),
by Meyer, threatened employees with reprisals for engaging
in activities in support of Local 32E and that about the same
time and the same location Marks created an impression
among employees that their union activities were under sur-
veillance by Respondents, informed employees that it would
be futile for them to select Local 32E as their collective-bar-
gaining representative and directed employees not to sign au-
thorization cards on behalf of Local 32E. It is further alleged
that Marks, at the 111 East 182d Street building in the Bronx
(the East 182d Street building), and at its facility, interro-
gated employees concerning their support for and activities
on behalf of Local 32E and solicited employees to sign union
authorization cards on behalf of another labor organization.
Finally, it is alleged that in or about May and June, Marks
rendered aid, assistance, and support to Independent Union
of Building Service Employees, Local No. 1 (Local 1), by
soliciting its employees to sign authorization cards and peti-
tions in order to become members of Local 1. By this activ-
ity Medin is alleged to have violated Section 8(a)(1) and (2)
of the Act.
On the entire record, including the briefs received from
counsel for the General Counsel and Local 670, and my ob-
servation of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The six Respondents are each New York State corpora-
tions which own residential apartment buildings. Respondents
1466, 1163, and 2395 own buildings located at 1466 Town-
send Avenue, 1161–1163 Stratford Avenue and 2395 Morris
499MEDIN REALTY CORP.
Avenue, all in the Bronx, New York, respectively and, ad-
mittedly, constitute a single-integrated business enterprise
and a single employer within the meaning of the Act. Medin,
1944, and 1113 own buildings located at 305 West 150th
Street, New York, New York (the West 150th Street build-
ing), 1944 Andrews Avenue, and 15 Featherbed Lane in the
Bronx, New York, respectively, and, admittedly, constitute a
single-integrated business enterprise and a single employer
within the meaning of the Act. Annually, in the course of
their business operations, 1466, 1163, and 2395 collectively
derive gross revenue in excess of $500,000 and purchase and
receive at their facilities products, goods, and materials val-
ued in excess of $5000 from suppliers located outside the
State of New York. Likewise, Medin, 1944, and 1113 collec-
tively derive gross revenue in excess of $500,000 and pur-
chase and receive at their facilities products, goods, and ma-
terials valued in excess of $5000 from suppliers located out-
side the State of New York. 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.
II. LABOR ORGANIZATION STATUS
Respondents admit, and I find, that Local 32E, Local 670,
and Local 1 each constitute a labor organization within the
meaning of Section 2(5) of the Act.
III. THE FACTS
There are two distinct allegations herein: foremost is that
five of the six Respondents—1466, 1944, 1163, 2395, and
1113—rendered unlawful assistance to Local 670 regarding
these buildings and executed collective-bargaining agree-
ments (containing union-security clauses) for these buildings
with Local 670 at a time when Local 670 did not represent
an uncoerced majority of the employees of these buildings,
in violation of Section 8(a)(1), (2), and (3) of the Act. The
complaint also alleges that Respondent Medin, through
Meyer and Marks, violated Section 8(a)(1) and (2) of the Act
through statements made to employees at the Creston build-
ing, the East 182d Street building, and the West 150th Street
building. As Respondent did not enter into collective-bar-
gaining agreements for either of these buildings, the only
remedy for these latter allegations is cease and desist in their
actions toward the employees.
Local 32E had a collective-bargaining agreement with
1940 Holding Ltd. (1940) covering the Creston building ef-
fective for the period September 15, 1985, through Sep-
tember 14, 1988. As is true of all the agreements herein, the
only employee involved was the superintendent of the build-
ing, Carlos Cruz; the agreement was signed by Meyer on be-
half of 1940. Domenic Paciello, secretary-treasurer and for-
merly vice president of Local 32E, testified that by letter
dated September 14, 1988, Local 32E wrote to Meyer re-
questing negotiations for a new agreement for the building.
Receiving no response to this letter, Local 32E obtained an
authorization card from Cruz and on September 14, 1988,
filed a petition with the New York State Labor Relations
Board (the State Board). At the State Board hearing, the Em-
ployer raised the issue of jurisdiction; at that time the hearing
was adjourned. On October 24, 1988, ‘‘Martin Meyer, d/b/a
1113 Holding Ltd.’’ filed a petition with the Board for an
advisory opinion as to whether the Board would assert juris-
diction over its operations. The petition and advisory opinion
refer to the Petitioner’s operation of the Creston building, as
well as the 1113 building located on Featherbed Lane and
the 1944 building on Andrews Avenue, both in the Bronx,
New York (the Featherbed Lane building and the 1944 build-
ing). The Board in its Advisory Opinion dated November 30,
1988, concluded that based on the provided allegations and
assumptions, the Board would assert jurisdiction over the Pe-
titioner. By letter dated December 23, Local 32E moved to
withdraw its petition with the State Board; the withdrawal
was approved on January 3.
Paciello testified that he then spoke to Cruz’ wife (Ms.
Cruz), and arranged a meeting at the Cruz apartment at the
Creston Avenue building with a Local 32E organizer who
spoke Spanish, Pete Martinez, and ‘‘our superintendents’’;
Paciello did not attend the meeting. Ms. Cruz testified that
there was a meeting at her house in April with Martinez. The
following superintendents attended the meeting: Luis
Melendez, from 2240 Ryer Avenue in the Bronx (Ryer Ave-
nue building), Jose Burgos, from the East 182d Street build-
ing, Alejandro Nin, from the West 150th Street building,
Ramon Colon, from the 2395 building, Jesus Duran, from the
1944 building, Orlando Maldonado, from the 1466 building,
Ronald Lopez of the 1163 building, and Cruz and his wife.
Ms. Cruz assisted at the meeting because most of the supers,
including Cruz, did not speak English too well. She testified
that Cruz, Burgos, Melendez, Nin, Colon, Maldonado, Duran,
and Lopez signed authorization cards for Local 32E at that
meeting or shortly thereafter. These cards were received into
evidence; four are dated April 12, Cruz’ card is dated March
1, and the remaining three are dated between April 17 and
April 30. Burgos, Melendez, and Nin, the only supers in-
volved herein who testified, each testified that they signed an
authorization card for Local 32E at this meeting at the Cruz
apartment. Paciello testified that on receipt of these author-
ization cards, he sent a letter to Respondents demanding rec-
ognition. Apparently, no response was forthcoming. Local
32E then filed a series of petitions with the Board. All of
these petitions list the Employer as ‘‘Martin Meyer, d/b/a
1113 Holding Ltd.’’ Three petitions were filed prior to the
Board hearing on June 12; the first was filed on April 20 and
lists the unit as ‘‘All building service employees employed
at’’ the Creston Avenue building, the 1163 building, the Ryer
Avenue building, the 2395 building, the 1944 building, and
the Featherbed Lane building. The next petition was filed on
April 27 and added the 1466 building to those listed on the
original petition. On May 8, Local 32E filed an amended pe-
tition that added the West 150th Street building and the East
182d Street building. The supers of these three added build-
ings were, respectively, Maldonado, Nin, and Burgos.
A hearing was scheduled for June 12; Local 32E came
with two attorneys as well as a number of the supers. Meyer
appeared for the Employers, also with counsel. There is a
major difference between the testimony of Paciello and
Meyer in this regard. Each testified that prior to the opening
of the representation hearing it was suggested that the two
sides meet to decide whether they could settle the matter
without the need of a hearing and that they did meet. At the
conclusion of this meeting Local 32E withdrew its petition.
The substance of this meeting, however, is in dispute.
Paciello testified that at this meeting, he and Meyer agreed
‘‘that we would try to resolve our problems to withdrew [sic]
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
said petition and if in a month’s time we could not resolve
our problems, to refile and all parties agreed to same.’’ In
other words, if he and Meyer could not come to an agree-
ment, Local 32E would refile the petition. He does not know
who initiated the idea, ‘‘but it was understood by all parties
present.’’ Paciello’s affidavit given to the Board states that
he withdrew the petition and subsequently refiled, but does
not refer to the alleged agreement reached with Meyer on
June 12, that if they could not come to an agreement Local
32E would refile the petition. Paciello identified his hand-
written notes prepared at the time of these events. The notes
state:
After lengthy discussion Martin Meyer agreed to
meet with L32E and discuss a union agreement.
He, Martin Meyer, requested a w/d from the NLRB
based on above and failing to reach any contract settle-
ment-32E will Re-File on same issues.
Meyer testified that he met with Paciello and his counsel,
Miller. He told them that he already had contracts covering
two or three buildings that they had petitioned for. Miller
and Paciello then told him that two of their buildings, the
Creston Avenue building and the East 182d Street building,
were their biggest concern and they needed a contract for
these buildings and that if they could get that, they would
‘‘walk away’’ from the other buildings. It was agreed that
Local 32E would withdraw their petition. ‘‘At no time, what-
soever,’’ did they discuss refiling the petition. Paciello testi-
fied that he never told Meyer that Local 32E would abandon
or ‘‘walk away’’ from any of the buildings. When Meyer
told him that Respondents already had contracts for some of
these buildings, he told him that if Meyer could present them
with satisfactory proof of these contracts, he would ‘‘abide
by’’ this proof. Paciello and Meyer met on two occasions in
June; without getting into the substance of the negotiations,
there were some outstanding differences and they did not
meet again. During these meetings, Meyer told Paciello that
he had contracts with Local 670 for four or five of the build-
ings Local 32E had petitioned for. Paciello told him that ‘‘if
that was the case and everything was legal we would not ob-
ject.’’ At the conclusion of these meetings, Local 32E filed
a petition with the Board. The first petition after the rep-
resentation hearing was filed on July 20 and the unit re-
quested is identical to the unit initially petitioned for on
April 20. On September 25, Local 32E amended the petition
to add the West 150th Street and East 182d Street buildings.
On November 6, Local 32E again amended the petition to
add the 1466 building, so that the petition was identical to
the way it was on June 12. Meyer testified that he met with
Paciello and Counsel Miller on two occasions in June during
which they negotiated for two of the buildings, the Creston
building and the East 182d Street building. After some dif-
ficult bargaining, they met again and Miller said that every-
thing would have to be renegotiated. He refused and they did
not meet again.
Each of the Respondents have collective-bargaining agree-
ments covering the supers involved herein. Medin has a con-
tract with Local 1 effective for the period August 26, 1986,
through September 1, 1989; this agreement is not being at-
tacked herein. The following five agreements are: a collec-
tive-bargaining agreement between Local 670 and 1163,
dated July 17, and effective for the period July 14, 1989,
through July 13, 1992; a collective-bargaining agreement be-
tween Local 670 and 1113, dated July 19, and effective for
the period July 14, 1989, through July 13, 1989 [sic]; a col-
lective-bargaining agreement between Local 670 and 1944,
dated July 18, and effective for the period July 14, 1989,
through July 13, 1992; a collective-bargaining agreement be-
tween Local 670 and 1466, dated July 17, and effective for
the period July 14, 1989, through July 13, 1992, and a col-
lective-bargaining agreement between Local 670 and 2395,
dated July 17, and effective for the period July 14, 1989,
through July 13, 1992. Each of these agreements contain a
union-security clause making membership in Local 670 with-
in 30 days a requirement of continued employment.
David Green, business agent and organizer for Local 670,
testified that he spoke to, and obtained signed authorization
cards for, Local 670 from, Maldonado, Duran, Garcia, Colon,
and Lopez, the supers of the 1466, 1944, Featherbed Lane,
2395 and 1163 buildings, respectively. He testified that the
then vice president of Local 670, Robert Humes, gave him
some building addresses and directed him to organize the
employees at those addresses. This testimony came in answer
to a question of whether in July he became aware that Meyer
had other buildings in the Bronx. Yet, he testified on five oc-
casions, regarding the cards of Maldonado and Garcia, that
he met with the employees involved and obtained the cards
in August or September. It was not until the second time that
counsel for Local 670 instructed him to look at the authoriza-
tion cards that he changed his testimony to July. Of the five
Local 670 authorization cards, only two are dated: the cards
of Colon (July 17) and Garcia (July 1). Green’s testimony
was practically identical for all of the cards; that he spoke
to these individuals about Local 670 and the benefits it could
provide and these individuals or their wives, then signed the
cards. On cross-examination, Green testified that he does not
speak Spanish, but that he was able to communicate with the
employees through their wives or, on a couple of occasions,
with a Spanish-speaking friend of his. He also could not tes-
tify with any certainty what he did with the signed authoriza-
tion cards after obtaining them; he probably gave them to
Humes. He was not involved in negotiating the agreements
for these five buildings. The only evidence in this regard was
testified to by Meyer. He testified that in July, he received
a telephone call from Humes, whom he knows from other of
his buildings, who said that he had signed authorization cards
from some of his employees and he wanted to negotiate a
contract. Meyer told Humes that he would only agree to the
contract he had preliminarily agreed to with Local 2E before
they demanded that it be renegotiated. Humes said that he
would like to see what that agreement contained and asked
when he could come to Meyer’s office. Meyer answered:
‘‘For my part, you can come over right now.’’ Humes came
to his office at about 4 p.m. Humes showed Meyer the au-
thorization cards and Meyer compared the signatures with his
payroll records. They negotiated, based on the agreement that
Meyer thought he had with Local 32E, but there were ‘‘nu-
merous, numerous, numerous, numerous’’ modifications or
corrections made. However, Humes did not have all five au-
thorization cards with him and Meyer told Humes that he
would only sign contracts for buildings for which he had
signed authorization cards. On the following day and the day
after that, as well, Humes came to his office, presented him
501MEDIN REALTY CORP.
with a card or cards, and they signed the contracts for the
buildings involved.
In addition to the above allegations of unlawful assistance
to Local 670, there are also allegations of unlawful state-
ments made by Meyer and Marks. Ms. Cruz testified that
Marks and Meyer are her husband’s superiors. As stated
above, the Local 32E agreement covering the Creston build-
ing expired in September 1988; Ms. Cruz testified that in
early 1989, Meyer came to the Creston building and told
them that Cruz was no longer in the Union and that he was
no longer bound by Local 32E rules, and that Cruz would
have to do whatever he told him to do. Ms. Cruz testified
further that a few days after the Local 32E meeting with the
supers in her apartment, Meyer called her and said that he
was upset and angry with her because she was doing some-
thing wrong to him. He said: ‘‘You shouldn’t be doing these
things.’’ He also said that no union was going to tell him
what to do and that she would regret it because he would
report to the Labor Department that she was illegally on wel-
fare, food stamps, and Medicaid. Ms. Cruz denied these alle-
gations. Meyer testified that he had a conversation with Ms.
Cruz in about April or May; she mentioned the April meet-
ing of supers at her apartment and he said that he was ‘‘very
disappointed, I thought I had a different type of relationship
with her.’’
There are also allegations of statements made by Marks,
who did not testify, to Mr. and Ms. Cruz, Burgos, and Nin.
Ms. Cruz testified that on the Monday following the above-
mentioned conversation with Meyer, Marks came to her
apartment. He said that he knew about the meeting of the
supers in her apartment and that: ‘‘We shouldn’t be doing
this.’’ He said that what they were doing was wrong, and in
the end they would lose. He also threatened to report that she
was on welfare when she wasn’t legally entitled to it. She
again denied this and said that they had asked him for bene-
fits and when they didn’t get them, they went to the Union.
He then told her to talk to Burgos and tell him to stop trying
to get into Local 32E ‘‘because he was going no where.’’
She testified that although Burgos can understand English, he
had difficulty explaining himself in English. Ms. Cruz further
testified that after this, Marks came to the building once or
twice a week and would speak to her in the apartment or in
the street. He asked her what was going on with Local 2E
and that they would not get any place trying to get into a
union. He again asked her to speak to Burgos and said that
they wouldn’t get anywhere with the Local 32E and ‘‘that
we were going to regret it.’’ He said that he would report
her to welfare; she said that he could do it if he wished be-
cause she no longer received welfare.
Burgos testified that about 3 days after the meeting at the
Cruz apartment, Marks met him at his East 182d Street
building and told him that they had a union with the same
benefits and Burgos said that was the first that he knew of
a union at the building. Marks then gave him a card to sign
for this Union but Burgos refused saying that he had already
signed a card for Local 82E. A few days later, Marks came
to the West 150th Street building where Burgos was assisting
Nin, the super for the building. Marks again asked Burgos
(Nin was not present at the time) to sign the union card and
Burgos again refused. Burgos asked to see the card, but
Marks refused to show it to him, although he did tell him
that ‘‘it was union number one.’’ Nin testified that about a
month after the meeting at the Cruz apartment, Marks came
to the West 150th Street building on a day that Burgos was
also working there. Marks told Nin to stay in the building
while he spoke outside the building with Burgos; a few
weeks later, Marks came to the West 150th Street building
where Nin was working in one of the apartments. Marks
handed him a paper to sign stating that the work had been
completed. He signed it and under that paper was an author-
ization card for Local 1 and Marks told Nin to sign it. Nin
refused to sign the card without first speaking to somebody
else about it. Melendez testified that about a month after the
meeting at the Cruz apartment, Marks and Sam David, the
managing agent of the Ryer Avenue building, and an admit-
ted agent of Respondents, came to that building. David asked
him why he signed with Local 32E; Melendez said that he
wanted to be in Local 32E for the benefits. He also testified
that he never heard of Local 670, although he once received
a book from them after signing the card for Local 32E, but
he threw it away. He testified that during his 5-year employ-
ment at the building he never heard that there was a union
contract covering the building. Received in evidence was a
contract for the Ryer Avenue building between Local 670
and Samest Management, effective 1984 through 1987;
David, Melendez, and Humes signed the agreement. Green
testified that Local 670 has been receiving dues for
Melendez, through checkoff, since about 1987.
IV. ANALYSIS
There are a number of 8(a)(1) and (2) allegations of state-
ments of Marks and Meyer at a number of Respondents’
buildings; the principal allegation, however, is that Respond-
ents recognized and entered into collective-bargaining agree-
ments with Local 670 at a time when it did not represent an
uncoerced majority of the employees at the following build-
ings: the 1466 building, the 1944 building, the Stratford Ave-
nue building, the 2395 building, and the Featherbed Lane
building. In addition, there are a number of credibility deter-
minations to be made.
I found Ms. Cruz to be a credible witness who testified
in an articulate and honest manner. I also found Paciello to
be a credible witness. He appeared to be testifying in a truth-
ful manner and I credit his testimony as well. The only trou-
bling aspect of Paciello’s testimony is that he waited almost
4 weeks after his negotiations with Meyer ended before
refiling the petition with the Board. Considering his testi-
mony that he and Meyer agreed on June 12 that Local 32E
would refile if negotiations were unsuccessful in reaching an
agreement, it would seem more reasonable for him to refile
earlier than July 20. However, I find it more likely that this
delay was due to the rush of other business or negligence on
the part of Local 32E. One reason for this finding is that I
found both Meyer and Green to be incredible witnesses. It
does not take someone with years of experience in labor law
to see through their story. After Local 32E withdrew its peti-
tion, but prior to refiling, Local 670 suddenly decided to or-
ganize five of the buildings Local 32E had petitioned for.
Humes, the Local 670 representative who, allegedly, decided
to organize these buildings, did not testify. Green, who testi-
fied on five occasions that he spoke to these employees in
August or September, finally testified that it was in July,
after being shown the authorization cards for the second
time. Of the five cards signed (one for each building) only
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
two are dated. Colon’s card is dated July 17; the contract for
his building is also dated July 17. Garcia’s authorization
card, the only other dated card, is dated July 18; the contract
for his building is dated July 19. I find it incredible that
Meyer, who was such a tough negotiator with Local 32E and
was unable to reach agreement with Paciello over a couple
of meetings, was able to examine the Local 670 authorization
cards, compare them with his payroll records for authenticity,
negotiate contracts for the five buildings, and have the three
different managing agents sign the appropriate contract, all
within the same day to 48 hours of the signing of the cards.
If there were an Olympic contest for speed in negotiating and
executing collective-bargaining agreements, these Respond-
ents would win the gold medal. I would also credit the testi-
mony of Paciello over Meyer and find that in their negotia-
tions Paciello never agreed to ‘‘walk away’’ from most of
the buildings in exchange for a contract for two of the build-
ings. Rather I find that, as testified to by Paciello, he said
that if Meyer could establish legal agreements for some of
these buildings, he would act appropriately. Therefore, al-
though the testimony of Meyer and Green regarding Local
670’s card solicitation and the contract executions was, basi-
cally, uncontradicted, I discredit it as being beyond belief.
I therefore credit Paciello that he and Meyer agreed on
June 12 that Local 32E would withdraw its petition, but, if
they were unsuccessful in negotiating a collective-bargaining
agreement, that Local 32E would refile the petition. They
were unsuccessful in reaching agreement, but Local 32E did
not refile its petition until July 20, 1, 2, and 3 days after the
contracts were allegedly signed for the five buildings. Coun-
sel for Local 670, and, presumably, counsel for Respondents,
allege that under Bruckner Nursing Home, 262 NLRB 955
(1982), since Local 32E did not have a petition on file at the
time these contracts were executed, the recognition and
agreements must stand. The other factor in Respondent’s
favor is that there is no direct evidence that any of its five
authorization cards are fraudulent or were assisted by Re-
spondents.
General Counsel relies on four theories supporting the
proposition that the execution of the collective-bargaining
agreements by Respondents and Local 670, on July 17, 18,
and 19 violated Section 8(a)(1), (2), and (3) of the Act. Gen-
eral Counsel’s principal reliance is on Bruckner. That case
examined Midwest Piping Supply Co., 63 NLRB 1060
(1945), and found the need to change the law of when an
employer may lawfully recognize one union when there are
rival organizing campaigns by two or more unions. The
Board found:
We will no longer find Section 8(a)(2) violations in
rival union, initial organizing situations when an em-
ployer recognizes a labor organization which represents
an uncoerced, unassisted majority, before a valid peti-
tion for an election has been filed with the Board.
However, once notified of a valid petition, an employer
must refrain from recognizing any of the rival
unions. . . . Making the filing of a valid petition the
operative event for the imposition of strict employer
neutrality in rival union, initial organizing situations
will establish a clearly defined rule of conduct and en-
courage both employee free choice and industrial sta-
bility.
General Counsel argues that Respondents violated ‘‘the
spirit and rationale’’ and ‘‘the clear intention, if not the let-
ter’’ of Bruckner. She argues that since Local 32E did file
a petition to represent Respondents’ employees (although it
subsequently withdrew the petition) the requirements set
forth in Bruckner have been met. I agree for a number of
reasons that, under Bruckner, Respondents have violated Sec-
tion 8(a)(1), (2), and (3) of the Act. Foremost is that Local
32E filed a petition and although it was later withdrawn it
made Respondents aware that it had a proper showing of in-
terest from its employees and put them on notice not to rec-
ognize any other union as the representative of these employ-
ees. Further, I have found that Paciello and Meyer agreed on
June 12 that the petition would be withdrawn pending nego-
tiations and would be refiled if those negotiations were not
fruitful. Respondents were therefore put on further notice not
to recognize any other union during this hiatus period. And
finally, in the above-quoted language from Bruckner the
Board states that it will no longer find a violation, absent the
filing of a petition, where the union ‘‘represents an
uncoerced, unassisted majority’’ of the unit employees. As
stated above, I find that Local 670 never represented an
uncoerced, unassisted majority of these employees. I there-
fore find that by recognizing and executing collective-bar-
gaining agreements with Local 670 on July 17, 18, and 19,
said agreements containing union-security agreements, Re-
spondents violated Section 8(a)(1), (2), and (3) of the Act.
Having found that Respondents violated the Act under
Bruckner, I find it unnecessary to examine General Counsel’s
other theories.
There remains for consideration the allegations that Re-
spondents violated Section 8(a)(1) and (2) of the Act by
statements made by Meyer and Marks. As stated above, I
found Cruz to be a credible witness and credit her testimony
over Meyer. Although she was not an employee of Respond-
ents, that is not a valid defense herein. Because of her com-
mand of the English language, Respondents (and Local 32E)
used her as a conduit in communicating with the supers, in-
cluding Cruz. In addition, she was more than a disinterested
observer in these goings on. Supers are given an apartment
along with the job; when the job goes, so does the apartment.
Ms. Cruz shares the apartment with her husband and must
have been well aware of the consequences of crossing Meyer
and Marks. I find that a few days after the Local 32E meet-
ing in the Cruz apartment, Meyer called Ms. Cruz and said
that he was angry and upset with her because she was doing
something wrong to him, saying: ‘‘You shouldn’t be doing
these things.’’ He also told her that no union was going to
tell him what to do and that she would regret it because he
would report her for illegally being on welfare, medicaid,
and getting food stamps. This clearly constitutes a threat of
reprisals for engaging in union activities, as alleged in para-
graph 9 of the complaint, and I so find. It is next alleged
that Respondent violated Section 8(a)(1) of the Act by state-
ments made by Marks to Ms. Cruz at the Creston building.
In this regard, she testified that a few days after Meyer spoke
to her, and said that he knew of the supers meeting in her
apartment, that what they were doing was wrong, they
should not be doing it, and in the end they would lose. He
then threatened to report her to the Government for illegally
being on welfare. He also told her to talk to Burgos and to
tell him to stop trying to get into Local 32E, ‘‘because he
503MEDIN REALTY CORP.
2 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
Continued
was going nowhere.’’ After this, Marks came to the Creston
building once or twice a week, asked her what was going on
with Local 32E, and said that they would not get anywhere
with Local 32E, and that they would regret it. This credited
testimony of Ms. Cruz confirms the allegations of paragraph
10 of the complaint that Respondent Medin, through Marks,
at the Creston building, violated Section 8(a)(1) in the fol-
lowing manner:
(1) Created an impression among employees that their
union activities were under surveillance by Respondents;
(2) Informed employees that it would be futile for them
to select Local 32E as their bargaining representative.
(3) Directed employees not to sign authorization cards on
behalf of Local 32E.
I therefore find that it violated Section 8(a)(1) of the Act
as alleged.
It is next alleged (at paragraph 11) that on two occasions,
in about May and June, Respondent Medin, by Marks, at the
East 182d Street building and at its facility, solicited employ-
ees to sign authorization cards for a union other than Local
32E. The credible and uncontradicted testimony of Burgos
and Nin establishes that during this period, Marks met them
at the East 182d Street building and the West 150th Street
building (which is owned by Respondent Medin) and tried to
get them to sign authorization cards, apparently, for Local 1.
This, obviously violates Section 8(a)(1) and (2) of the Act,
and I so find. Paragraph 12 alleges that in May or June, Re-
spondent Medin, by Marks, at its facility, interrogated em-
ployees concerning their support for, and activities on behalf
of, Local 32E. The only evidence relating to this allegation
is Melendez’ testimony that David, in the company of
Marks, at the Ryer Avenue building, asked him why he
signed with Local 32E. The Ryer Avenue building is owned
by Samest Management, not a Respondent herein. Therefore
the location of the allegation in the complaint is incorrect,
as is the agent involved, David, rather than Marks. Because
the interrogation occurred during the period alleged in the
complaint in the presence of Marks, who was named in the
complaint, and Melendez was cross-examined by counsel for
Local 670, as well as counsel for Respondents, although not
about the alleged interrogation, I find that the allegation is
within the purview of the complaint and violates Section
8(a)(1) of the Act under Rossmore House, 269 NLRB 1176
(1984), and Sunnyvale Medical Clinic, 277 NLRB 1217
(1985).
In her brief, counsel for General Counsel moves to amend
the complaint to allege certain threats, not specifically al-
leged in the complaint, as violations of Section 8(a)(1) of the
Act. The testimony in support of these allegations came
about during the testimony of Cruz, in the midst of testimony
of allegations specifically alleged in the complaint. Counsel
for General Counsel gives no reason why she did not amend
the complaint at an earlier time to notify the other parties of
the full width of her allegations, rather than waiting until the
posttrial brief to make this amendment. I therefore deny this
request to amend, and decline to find these violations. Mid-
dletown Hospital Assn., 282 NLRB 541 (1986); Massillon
Hospital Assn., 282 NLRB 675 at 679 (1986).
CONCLUSIONS OF LAW
1. Respondents 1466, 1163 and 2395, which constitute a
single-integrated business enterprise and a single employer
within the meaning of the Act, are engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondents Medin, 1944, and 1113, which constitute
a single-integrated business enterprise and a single employer
within the meaning of the Act, are engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
3. Local 32E, Local 1, and Local 670 are each labor orga-
nizations within the meaning of Section 2(5) of the Act.
4. Respondents violated Section 8(a)(1) and (2) of the Act
on July 17, 18, and 19, 1989, by recognizing Local 670 as
the collective-bargaining representative of its employees at
these buildings.
5. Respondents violated Section 8(a)(1), (2), and (3) of the
Act by entering into collective-bargaining agreements with
Local 670, on about July 17, 18, and 19, 1989, said agree-
ments containing union-security agreements requiring mem-
bership in Local 670 after 30 days of employment with Re-
spondents.
6. Respondents violated Section 8(a)(l) of the Act in the
following manner:
(a) Threatening its employees with reprisals for engaging
in activities in support of Local 32E.
(b) Interrogating its employees concerning their support
for Local
(c) Creating an impression among its employees that their
Local 32E activities were under surveillance by Respondents.
(d) Informing its employees that it would be futile for
them to select Local 32E as their collective-bargaining rep-
resentative.
(e) Directing its employees not to sign authorization cards
for Local 32E.
7. Respondents violated Section 8(a)(1) and (2) of the Act
by soliciting its employees to sign authorization cards for
Local 1.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices within the meaning of Section 8(a)(1),
(2), and (3) of the Act, I shall recommend that they be re-
quired to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act. In addition, Respondents will be ordered to withdraw
and withhold all recognition from Local 670 until such time
as Local 670 has been certified by the Board as the exclusive
representative of the employees involved herein, to cease
giving any effect to the collective-bargaining agreements
they entered into with Local 670 on July 17, 18, and 19,
1989, and to reimburse the employees for all dues or fees
they paid to Local 670, as provided below. However, nothing
in the Order herein shall be construed to authorize or require
Respondents to withdraw or eliminate any wage increase or
other benefits in the employees’ terms and conditions of em-
ployment which may have been established pursuant to those
agreements, except with respect to the agreements’ union-se-
curity provisions, which may no longer be enforced.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
3 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 Respondents, Medin Realty Corp. c/o Martin Meyer;
1466 Holding Ltd.; 1944 Holding Ltd.; 1163 Holding Ltd.;
2395 Holding Ltd.; and 1113 Holding Ltd., Bronx, New
York, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Recognizing or bargaining with Local 670 as the exclu-
sive collective-bargaining representative of their employees
at the buildings involved herein, unless and until Local 670
has been certified by the National Labor Relations Board as
the exclusive bargaining representative of such employees in
an appropriate bargaining unit.
(b) Giving effect to the July 17, 18, and 19, 1989 collec-
tive-bargaining agreements they entered into with Local 670
for these employees, or any modifications or extensions of
said agreements.
(c) Recognizing or bargaining with Local 670, or any
other labor organization, at a time when said labor organiza-
tion does not represent an uncoerced majority of the employ-
ees in the unit for which recognition is extended.
(d) Threatening its employees with reprisals for engaging
in activities in support of Local 82E.
(e) Creating an impression among their employees that
their union activities were under surveillance.
(f) Informing its employees that it would be futile for them
to select Local 32E as their bargaining representative.
(g) Directing employees not to sign authorization cards for
Local 32E.
(h) Interrogating employees concerning their support for
Local 32E.
(i) Soliciting employees to sign authorization cards on be-
half of a labor organization not the duly designated collec-
tive-bargaining representative of the employees.
(j) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse its past and present employees for all dues
and fees withheld from their pay pursuant to the collective-
bargaining agreements between Respondents and Local 670
dated July 17, 18, and 19, 1989.
(b) Preserve and, on request, make available to the Board
and its agents payroll and other records necessary to deter-
mine the amount due under paragraph 2(a) above.
(c) Post at all of their buildings, in places where such no-
tices are customarily posted, copies of the attached notice
marked ‘‘Appendix.’’3 Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being duly
signed by Respondents’ authorized representatives, shall be
mailed to the superintendents of all the buildings involved
herein, as well as being posted by Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondents to ensure that the notices are not al-
tered, defaced or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order of what steps Respondents have
taken to comply.
Randy M. Girer, Esq., for the General Counsel.
Morris Tuchman, Esq., for the Respondent.
Steven H. Kern, Esq., for the Charging Party.
Richard M. Greenspan, Esq. and Karen Hertz, Esq., for the
Party in Interest.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. In a deci-
sion dated August 7, 1991, I found that Respondent, a single
integrated business enterprise and a single employer within
the meaning of the Act, violated Section 8(a)(1), (2), and (3)
of the Act by recognizing and entering into collective-bar-
gaining agreements with Stationery Engineers, Firemen,
Maintenance and Building Service Union, RWDSU, Local
670 (Local 670), on July 17, 18, and 19, 1989. In this deci-
sion, I also found that Respondent violated Section 8(a)(1)
of the Act by interrogating employees regarding their support
for Service Employees International Union, Local 32E, AFL–
CIO (Local 32E), threatening its employees with reprisals for
supporting Local 32E, creating an impression among its em-
ployees that their Local 32E activities were under surveil-
lance by Respondent, informing its employees that it would
be futile for them to select Local 32E as their collective-bar-
gaining representative, and directing its employees not to
sign authorization cards for Local 32E. Finally, I found that
Respondent also violated Section 8(a)(1) and (2) of the Act
by soliciting its employees to sign authorization cards for
Independent Union of Building Service Employees, Local 1.
By letter dated August 16, 1991, counsel for Respondent
moved the Board to remand the case to me on the ground
that the decision indicates that I did not consider his brief.
He attached a receipt for said brief stating that it was re-
ceived at the Board’s Office of Judges in New York on the
morning that briefs were due to be received. However, it
never reached me and, for that reason, was not considered.
In an Order dated August 22, 1991, the Board remanded this
proceeding to me to consider Respondent’s brief and to issue
a supplemental decision and order.
In the initial part of the decision, after crediting the testi-
mony of General Counsel’s witnesses and finding the testi-
mony of Martin Meyer, an owner of Respondent, and David
Green, business agent and organizer for Local 670, ‘‘as being
beyond belief,’’ I found that by recognizing and executing
collective-bargaining agreements with Local 670, Respondent
violated Section 8(a)(1), (2), and (3) of the Act. The bases
for this finding were numerous. For one thing, I did not be-
lieve that Local 670 represented an uncoerced, unassisted
majority of the employees in the unit at the time of recogni-
tion. Meyer had met on two occasions in June 1989 with
Domenic Paciello, secretary-treasurer of Local 32E, but they
were unable to reach agreement on a contract. On July 17,
18, and 19, 1989, five Respondents executed collective-bar-
gaining agreements (containing union-security agreements)
with Local 670. The basis of the recognition and these agree-
505MEDIN REALTY CORP.
ments is five Local 670 authorization cards signed by the
employees involved herein; only two of these cards are
dated. The Local 670 representative responsible for initiating
this campaign among Respondents’ employees did not tes-
tify. Green, who allegedly did the organizing for Local 670,
testified on five occasions that he met with the employees
and obtained the cards in August or September 1989. It was
not until he was shown the dated cards for the second time
that he changed his testimony to July 1989. I also found in-
credible that Respondent was able to check the authenticity
of the signatures on the five cards, negotiate five agreements
with Local 670, and have the three different managing agents
sign the agreements, all within the same day that the cards
were signed to 48 hours later. I found this speed and ease
of negotiating somewhat unusual since Meyer had met with
Paciello on two occasions in June without being able to
reach any agreement.
Bruckner Nursing Home, 262 NLRB 955 (1982), was the
other basis for my finding that the execution of these agree-
ments was unlawful. I agreed with General Counsel’s argu-
ment that by executing the agreements a few days before
Local 32E refiled its petition, Respondents violated ‘‘the
spirit and rationale’’ and ‘‘the clear intention, if not the let-
ter’’ of Bruckner. In Bruckner, the Board made the filing of
a petition with the Board the determinative factor in whether
an employer may lawfully recognize one of a number of
unions organizing its employees. I found that the Respond-
ents violated the proscription of Bruckner because a petition
had been filed (although subsequently withdrawn) and be-
cause it was withdrawn with the understanding that if Local
32E and Respondent could not reach agreement on a contract
it would be refiled. For all these reasons, I found that by rec-
ognizing Local 670 and executing collective-bargaining
agreements with it on about July 17 through 19, 1989, Re-
spondent violated Section 8(a)(1), (2), and (3) of the Act.
Respondent’s brief first addresses the dual card theory; my
decision neither discussed nor relied on this theory in finding
a violation, so it will not be discussed herein. The brief then
states that: ‘‘The burden of proof of lack of majority rests
squarely with the General Counsel. . . . No witnesses rebut-
ted the implication of a willful designation of Local 670.’’
That is true. In the decision it states: ‘‘Therefore, although
the testimony of Meyer and Green regarding Local 670’s
card solicitation and the contract execution was, basically,
uncontradicted, I discredit it as being beyond belief.’’ As the
Board stated in Plasterers Local 394, 207 NLRB 14 (1973):
A trier of fact need not accept uncontradicted testimony
as true if it contains improbabilities or if there are rea-
sonable grounds for concluding that it is false. It is well
settled that a witnesses’ testimony may be contradicted
by circumstances as well as by statements and that de-
meanor may be considered in such circumstances.
In Shore Point Associates, 280 NLRB 1206, 1210 (1986), the
administrative law judge stated: ‘‘Self serving statements of
an employer or of an employee are not to be accepted merely
because they are uncontradicted, when the record as a whole
casts doubt on those statements.’’ As was stated in the deci-
sion, the testimony of Meyer and Green was so improbable
and doubtful that I would have to close my eyes to reality
to believe it. Even though it was uncontradicted by other tes-
timony, I therefore discredited it.
Counsel for Respondent next argues the Bruckner issue.
He quotes the Board language in that case that says: ‘‘We
believe the proper balance will be struck by prohibiting an
employer from recognizing any of the competing unions for
the limited period during which a representation petition is
in process.’’ Although this language is certainly relevant to
this determination, the fact that on five occasions in the
Bruckner decision the Board referred to the filing of the peti-
tion convinced (and convinces) me that in the circumstances
herein (with the agreement to refill the petition if the parties
could not agree on a contract) Respondent’s recognition of
Local 670, and the execution of the agreements, violates the
Act. Counsel for Respondent also cites Film Consortium, 268
NLRB 436 (1983), decided after Bruckner. However, that
case is not helpful in the instant matter, because the charging
party union never filed a petition in that matter.
Finally, counsel for Respondent argues that the 8(a)(1) al-
legations should be dismissed, as well. He states that as Cruz
was not an employee, ‘‘statements to her even if made, do
not violate the Act.’’ That is not so. Albertson Mfg. Co., 236
NLRB 663 (1978); Nebraska Bulk Transport, 240 NLRB 135
(1979). In addition, there were other reasons for finding that
the statements made to Cruz, whom I found to be an articu-
late and credible witness, violate the Act. As stated in my
original decision:
Although she was not an employee of Respondents,
that is not a valid defense herein. Because of her com-
mand of the English language, Respondents (and Local
32E) used her as a conduit in communicating with the
supers, including Cruz. In addition, she was more than
a disinterested observer in these goings on. Supers are
given an apartment along with the job; when the job
goes, so does the apartment. Ms. Cruz shares the apart-
ment with her husband and must have been well aware
of the consequences of crossing Meyer and Marks.
After reading the brief of counsel for Respondent, I find
no reason for changing the decision issued in this matter on
August 7, 1991.
[Recommended Order omitted from publication.]