Service Employees Local 32B-32J (Provident Operating)

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 787 (N.L.R.B. 1991)

787
303 NLRB No. 119
SERVICE EMPLOYEES LOCAL 32B-32J (PROVIDENT OPERATING)
1 The Charging Party and the General Counsel have excepted to some of
the judge’s credibility findings. The Board’s established policy is not to over-
rule an administrative law judge’s credibility resolutions unless the clear pre-
ponderance of all the relevant evidence convinces us they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and, in adopting the judge’s
finding that the testimony of the Charging Party’s counsel regarding an alleged
request for negotiations with the Union on August 30, 1989, was not credible,
we rely only on the judge’s finding concerning the demeanor of the Charging
Party’s counsel as set out in the fourth paragraph of sec. II,C of the decision.
1 Certain errors in the transcript are noted and corrected.
2 The actual contract bears Benedict’s signature and in the space identifying
the Employer it names Provident Operating Corp. as ‘‘Agent for Queens Park
Realty Corp., 98–11 Queens Blvd.’’
Local 32B-32J, Service Employees International
Union, AFL–CIO and Provident Operating
Corp. Case 29–CB–7508
July 19, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On March 8, 1991, Administrative Law Judge Elea-
nor MacDonald issued the attached decision. The
Charging Party and the General Counsel filed excep-
tions and supporting briefs, and the Respondent filed
a response to the exceptions.
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,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Brian F. Quinn, Esq. and Rhonda P. Schechtman, Esq., for
the General Counsel.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New
York, New York, for the Respondent.
Robert M. Saltzstein, Esq., of Garden City, New York, for
the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was tried in Brooklyn, New York, on December 13,
1990. The complaint alleges that the Union, in violation of
Section 8(b)(3), refused to bargain with Provident Operating
Corp. The answer denies the material allegations of the com-
plaint.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Charging Party, I make
the following1
FINDINGS OF FACT
I. JURISDICTION
Provident Operating Corp., a New York corporation, with
its principal office in the county of Queens, in the city and
State of New York, is engaged in providing residential apart-
ment house management services to, inter alia, Queens Park
Realty Corp. at the Queens Park residential apartment house
complex in Queens, New York. I find that Provident is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act and that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The parties agree that the following employees of Provi-
dent constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All service employees employed by the Employer at
98–11 Queens Boulevard, Queens, New York: but ex-
cluding all guards and supervisors as defined in Section
2(11) of the Act.
Since January 1980, the Union has been the designated ex-
clusive collective-bargaining representative of the employees
in the unit described above. Provident and the Union have
been parties to successive collective-bargaining agreements,
the most recent of which had a term from April 21, 1985,
through April 20, 1988.
The contract names Provident Operating Corp. as the Em-
ployer. Daniel Benedict, the manager of Provident, testified
that he signed the contract as Provident Operating Corp.,
agent for Queens Park Realty.2 As is not uncommon in the
real estate industry in New York City, Provident and Queens
Park are family enterprises and a certain informality prevails
in the legal forms pertaining to the relationship with the
Union. Queens Park Realty owns not only the building at
98–11 Queens Boulevard which is the subject of the instant
case but also a number of other buildings managed by Provi-
dent. The officers of Provident are Benedict, a Mr. Mazurek
and a Mrs. Kastenbaum. Both Benedict and Mazurek are
sons-in-law of Kastenbaum. Kastenbaum’s late husband
owned Queens Park Realty. According to Benedict it is un-
clear who now has legal ownership of Queens Park Realty;
he testified that at the time of the instant hearing the mail
for Queens Park was received at the home of Mrs.
Kastenbaum.
In 1987, Leonard Williams, a unit employee at 98–11
Queens Boulevard, complained to the Union that he was not
receiving the correct rate of pay under the collective-bargain-
ing agreement. On May 21, 1987, the Union filed a notice
to arbitrate Williams’ pay claim under the contract; it named
the Employer as Provident Operating Corp., c/o Queens Park
Realty Corp., 98–11 Queens Boulevard. The next day, Wil-
liams was discharged. On May 28, 1987, the Union filed a
788 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Robert M. Saltzstein, Esq., the attorney for the Charging Party Employer
here, represented Provident and Queens Park in the various proceedings de-
scribed here.
4 This letter was sent certified, return receipt requested.
5 The letter was sent certified, return receipt requested.
notice to arbitrate the discharge; it also alleged that Queens
Park had established Atlantic Maintenance and Supply Co. as
an alter ego and was using Atlantic Maintenance to pay its
employees. The employer was named as Queens Park Realty
Corp. and Atlantic Maintenance and Supply Corp. The
record does not disclose why the name of Provident was
omitted from the caption.3
On June 5, 1987, the Union filed unfair labor practice
charges against Queens Park Realty. On July 21, 1987, by
letter of the Acting Regional Director, some of the charges
were dismissed: however, the charges relating to the dis-
charge of Williams for complaining to the Union and the es-
tablishment of Atlantic Maintenance in order to avoid the
collective-bargaining agreement were deferred to arbitration.
On September 28, 1990, the arbitrator issued his award. He
found that Provident and Queens Park shared the same of-
fices and that Provident was the agent of Queens Park. The
arbitrator found that the manager of the building owned by
Queens Park also worked for Provident. He found that Wil-
liams had been receiving far less than one-half the amount
of wages specified in the contract and that Williams had
been discharged when he sought the help of the Union. The
arbitrator further found that Queens Park had utilized Atlan-
tic Maintenance to avoid complying with the terms of the
collective-bargaining agreement. The award ordered the Em-
ployer to reinstate Williams with full seniority and backpay.
Before the arbitration described above took place, there
was a substantial amount of litigation in the New York State
Supreme Court relating to the Employer’s efforts to resist the
Union’s demand for arbitration. This litigation culminated in
a January 1989 order of the Court denying the Employer’s
motion for a stay and ordering it to proceed to arbitration.
That litigation is relevant here for the reason that in all the
proceedings, the Employer is named as Queens Park Realty.
It is clear that the building concerned in the litigation and
the arbitration is the same building that is at issue here and
that the collective-bargaining agreement and the collective-
bargaining unit are the very same ones with which we are
concerned in the instant case. The parties have not explained
why in the instant proceeding Provident as managing agent
is listed as the Employer although in all the other pro-
ceedings, including the Union’s unfair labor practice charge,
Queens Park, the actual owner of the buildings is listed as
the Employer. Indeed, counsel for the Charging Party Em-
ployer here, in some of the correspondence relating to the ar-
bitration of the Williams’ grievance, names both Queens
Park and Provident Operating as the employers. Further, in
a reply affirmation filed with the state court on August 16,
1988, in furtherance of the Charging Party’s efforts to stay
the arbitration in the Williams’ case, Saltzstein affirms that
Provident entered into the 1985–1988 collective-bargaining
agreement as the agent for Queens Park Realty, although in
the court proceedings on the stay only Queens Park is listed
in the caption as the party resisting arbitration.
B. The Facts
Robert M. Saltzstein, Esq., testified that he has represented
Provident for 5 years. He is a specialist in labor law.
Saltzstein stated that he negotiated the 1985–1988 contract
with the Union. In that connection, he specifically recalled
discussing the proposed contract with counsel for the Union,
Ira A. Sturm, Esq.
On February 11, 1988, Saltzstein sent a collective-bar-
gaining agreement termination notice to the Union; the letter
was addressed to the Union’s offices at One East 35th Street,
in New York City.4 On February 17, 1988, the Union sent
a form letter signed by Kevin McCulloch, assistant to the
president, from its office on 35th Street to Provident stating
that it wished to negotiate a successor agreement to the one
which would expire on April 20, 1988, and that it would
contact the Employer shortly to commence negotiations. Ap-
parently, the Union’s form letter was just that; it was clearly
not a response to Saltzstein’s letter of February 11.
On June 23, 1988, Saltzstein sent another letter to the
Union at One East 35th Street stating that effective June 30,
1988, Provident was ‘‘terminating all obligations under the
subject collective bargaining agreement.’’5 The letter recited
that letters had been sent by both Saltzstein and the Union
in February 1988, and it concluded that because Provident
has not heard from the Union about negotiations, it was the
Employer’s position that the Union had ‘‘waived by inaction
any right that you may have had to negotiate a successor
agreement.’’ It became apparent at the instant hearing that
the Union believed that it had sent the Employer a proposed
successor agreement, but there is no record evidence that
such a proposal was ever sent.
Saltzstein testified that he represented Provident in the liti-
gation leading up to the Williams’ arbitration and in the ac-
tual arbitration hearing. Those hearings were held for number
of days ending on August 30, 1989. According to Saltzstein,
on August 30, 1989, he was in the office of the contract arbi-
trator waiting for the hearing to begin. Neither the arbitrator
nor union counsel had yet appeared but the union business
agent, Ernesto Castro, was in the area waiting for the pro-
ceedings to begin. Castro was sitting with the grievant, Wil-
liams. Saltzstein asked to speak to Castro privately and the
two men proceeded to an empty office. Saltzstein testified
that he said to Castro, ‘‘my client wanted to put an end to
the labor dispute that was between Provident and Local 32B-
32J, wanted to negotiate the terms of a renewal collective-
bargaining agreement, which at that point had expired April
30th, the Apartment House agreement. And wanted to settle
the underlying grievance that was being arbitrated that day.’’
Saltzstein stated that Castro responded that the Union would
not settle the grievance and ‘‘that he would get back to me
with respect to the negotiation of a renewal collective-bar-
gaining agreement.’’
Saltzstein testified that the Union has not communicated
with Provident for the negotiation of a successor agreement
since August 30, 1989. Provident has made no other oral or
written request to negotiate since that date. It filed the re-
fusal-to-bargain charge on January 31, 1990.
Saltzstein testified that he had never negotiated with Cas-
tro and he was unaware if Castro had ever negotiated a con-
tract on behalf of the Union. Saltzstein has dealt only with
Sturm for the negotiation of contracts with Local 32B-32J.
Benedict testified that he leaves the negotiation of collective-
789SERVICE EMPLOYEES LOCAL 32B-32J (PROVIDENT OPERATING)
6 At the time of the hearing, Castro was recording secretary for District 7
of the Union. His duties as recording secretary do not involve the negotiation
of contracts; he supervises the business agents in the field.
7 While Castro was testifying, I observed that he has difficulty with the
English language. English is obviously not Castro’s first language; although
he seems to understand it adequately, he does not speak it with ease. When
Castro was testifying concerning fairly simple concepts, his English was easy
to understand. However, when the questioning moved on to more complicated
matters, Castro had trouble expressing more complex responses. For instance,
Castro had trouble expressing conditional thoughts. When asked if he had a
conversation with Saltzstein, Castro repeatedly used the phrase ‘‘could it be’’
in place of the more common locution ‘‘it could be.’’ Further, Castro did not
use the proper form when attempting to explain what he would have said to
Saltzstein if Saltzstein had indeed requested that he arrange for negotiation of
a collective-bargaining agreement. I am convinced from my observation of
Castro that he was a truthful witness and that he testified to the best of his
recollection. I find that he did not attempt to mislead nor to shade his testi-
mony. Any purported inconsistencies in his testimony that have been pointed
out by counsel for the General Counsel and counsel for the Charging Party
are in fact due to his lack of perfection in speaking English.
8 The Union also argues that the charge should be deferred to arbitration
under the contract. It further maintains that it had no duty to bargain with the
Employer while the Employer was guilty of serious unfair labor practices such
as paying its employees below the rates specified in the contract, failing to
pay the health and welfare funds and establishing an alter ego to avoid its obli-
gations under the collective-bargaining agreement. All the facts relating to this
defense are found in the record of the Williams’ case.
bargaining agreements to Saltzstein. Benedict has dealt with
Castro on personnel matters and to resolve grievances.
Castro testified that he was a business agent for the Union
until September, 1989.6 As a business agent, Castro serviced
unit members working in over 200 buildings. He made sure
that the employees got all the benefits they were entitled to
under the contracts, he handled grievances and he attended
arbitrations. The Union is represented by counsel at all the
arbitrations to which it is a party; Castro did not present
cases to the arbitrator. Castro’s duties also included orga-
nizing activities. Castro testified that he does not negotiate
collective-bargaining agreements, that he has no authority to
negotiate, and that he has never told the Employer that he
has any such authority.
When Castro was questioned concerning Saltzstein’s pur-
ported demand to negotiate on August 30, 1989, he stated
that he could not recall the conversation.7 He could not recall
what Saltzstein said to him nor what he replied. Although
Castro said that if Saltzstein had requested negotiations he
would have referred him to Sturm, this evidence cannot be
determinative. In response to questions by counsel for the
General Counsel, Castro said that if the Union wished to
change some provision of a collective-bargaining agreement
it would not convey that message through him; instead the
union office that was responsible for negotiating contracts
would send a letter to the employer. Castro explained that his
job was not to negotiate new contracts but to see that exist-
ing contracts were enforced.
C. Discussion and Conclusions
Both the General Counsel and the Charging Party contend
that Saltzstein made a valid demand to negotiate when he
spoke to Castro on August 30, 1989, and that the Union un-
lawfully refused to bargain by failing to respond to
Saltzstein’s demand. The Union maintains, among other ar-
guments, that Saltzstein did not in fact ask Castro to bargain
a new collective-bargaining agreement on August 30, 1989.8
The Union urges that the conversation with Castro related to
the grievance and not to the negotiation of a new contract,
that the Union was represented by counsel at the arbitration
and that if Saltzstein wanted to negotiate he would have
asked the Union attorney about that. All prior negotiations
had been conducted with a Union attorney. Finally, Saltzstein
had written letters to the Union about negotiating a new con-
tract and he well knew where to address a letter if he wished
to negotiate a new contract.
The Union introduced, over the objections of counsel for
the Employer and the General Counsel, the record of the pro-
ceedings relating to the litigation and arbitration of the Wil-
liams’ case. In urging that I reject the Union’s offer of these
many documents and in urging that any mention of the
whole Williams’ litigation and arbitration was irrelevant,
both counsel for the Employer and the General Counsel ar-
gued that the instant case and the Williams’ case involved
different employers and were not related; that is, that the in-
stant case involves Provident although the Williams’ case in-
volved Queens Park Realty. Saltzstein urged on the record
that ‘‘matters involving Queens Park and the union do not
reflect on Provident.’’ He maintained a continuing objection
to all matters relating to Williams and Queens Park Realty.
In the brief filed on behalf of Charging Party, Saltzstein ar-
gued that the Williams’ case was irrelevant as a defense to
the instant complaint against Provident because there was no
evidence showing common ownership or common control of
labor relations as between Queens Park and Provident. The
General Counsel also urged that Queens Park Realty ‘‘is
completely irrelevant to this proceeding.’’
In order to find an unfair labor practice in this case, I must
credit Saltzstein’s testimony that he made an offer to bargain
to Castro on August 30, 1989. Saltzstein testified very spe-
cifically that he told Castro, ‘‘my client wanted to put an end
to the labor dispute that was between Provident and Local
32B-J, wanted to negotiate the terms of a renewal collective-
bargaining agreement And wanted to settle the underlying
grievance that was being arbitrated that day.’’ Clearly,
Saltzstein testified that on behalf of his client Provident he
wanted to settle the labor dispute with the Union by negoti-
ating a new agreement and settling the grievance. This testi-
mony says, without any doubt, that there was one client and
that it would take a new contract and a grievance settlement
to resolve the differences between Provident and the Union.
Saltzstein did not testify, and it would be impossible to be-
lieve, that in one breath he both offered to negotiate on be-
half of a named client and settle a grievance on behalf of
an unnamed client. Of course, Saltzstein was under oath
when he gave this testimony. Saltzstein also appeared as the
attorney on behalf of Provident in the instant proceeding, and
as an attorney, he was no less under an obligation to be ac-
curate and truthful in his arguments and representations to
the tribunal before which he was appearing. It is clear that
Saltzstein’s arguments in the instant case are inconsistent
with his sworn testimony. Saltzstein argued that Provident
and Queens Park were different employers, that Queens Park
was irrelevant to this proceeding, that there was no common
control of labor relations as between Queens Park and Provi-
dent and that any alleged unfair labor practices which might
have been committed by Queens Park could not be raised as
a defense to a failure to bargain by Provident. These argu-
ments are inconsistent with Saltzstein’s testimony that on be-
half of a single client, Provident, he offered to negotiate a
new contract and settle the grievance then being arbitrated.
790 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 I need not speculate why a finding of refusal to bargain would help Provi-
dent in its efforts to resist payment the the funds nor what effect such a find-
ing would have on future negotiations between Provident and the Union.
10 Both the letter of February 11 and the letter of June 23, 1988, were sent
by certified mail, return receipt requested.
11 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
If there was no common control of labor relations then it
would have been impossible for Saltzstein to offer, on behalf
of his client Provident, to settle the grievance being arbi-
trated with Queens Park as the named employer. If Queens
Park were in truth irrelevant to Provident, how could the set-
tlement of the labor dispute between Provident and the
Union require both the negotiation of a new contract and the
resolution of the Williams’ grievance against Queens Park?
If Queens Park has nothing to do with Provident, as repeat-
edly urged by Saltzstein, then his testimony that he offered
to settle the grievance against Queens Park at the same time
that he offered to negotiate a new contract for Provident
must be inaccurate. If I credit Saltzstein’s arguments that
Queens Park is irrelevant to Provident and that there is no
common control as between Queens Park and Provident, then
I cannot credit his sworn testimony that as the attorney for
Provident he offered to settle a contract and a grievance that
had been filed against Queens Park. If I credit Saltzstein’s
testimony about the wording of his offer on August 30, 1989,
then I must find that he attempted to mislead me on numer-
ous occasions during the instant proceeding.
I have carefully studied the record, including all the exhib-
its, and I have reflected at length on Saltzstein’s testimony
and on his demeanor. I have concluded that Saltzstein’s testi-
mony about his conversation with Castro on August 30,
1989, must be rejected as unreliable. It is commonly held
that when a witness gives inconsistent and contradictory tes-
timony, that testimony will be found to be unworthy of be-
lief. Here, Saltzstein repeatedly made arguments that were
wholly irreconcilable with his testimony. By making these
arguments he undermined his own credibility. Further, I re-
call quite clearly Saltzstein’s demeanor during the hearing. I
am convinced that Saltzstein was bound and determined that
the Union be found to have refused to bargain even if that
required that Saltzstein give shaded testimony. During on-
the-record colloquy among counsel at the hearing, Saltzstein
twice expressed his personal anger at counsel for the Union
because Saltzstein had failed to notice that the expiring con-
tract contained what he referred to as an ‘‘evergreen clause’’
which apparently mandated a continuation of health and pen-
sion fund payments.9 Based on Saltzstein’s testimony and his
demeanor throughout the hearing, I shall not rely on
Saltzstein’s testimony.
As a final comment, I note that the circumstances also
lead me to conclude that it is extremely unlikely that
Saltzstein would have made a request to bargain to Castro.
Saltzstein is a labor law expert who has negotiated with the
Union on previous occasions. Saltzstein has always nego-
tiated with Sturm and he has never negotiated with Castro.
When Saltzstein sent a notice of termination to the Union in
February 1988, he sent it to the Union at its East 35th Street
address. Further, on June 23, 1988, when Saltzstein wrote to
notify the Union that Provident would no longer honor any
obligations under the expired contract and that the Union had
waived any right it had to negotiate a successor contract,
Saltzstein again wrote to the Union at its East 35th Street of-
fice. It seems to me that when Saltzstein was of a mind to
communicate with respect to negotiations, he wrote to the
union offices. Saltzstein knew that a lawyer always rep-
resented the Union in negotiations and that a lawyer always
represented the Union at arbitration hearings. Yet he would
have me find that on August 30, 1989, he sought out a busi-
ness agent with whom he had never negotiated and one who
obviously had some difficulty with the English language and
offered to negotiate a new contract. It is hard to believe this
scenario. I find it most improbable that, having given the
Union formal, written notice of the Employer’s view that the
relationship with the Union was at a virtual end, Saltzstein
would then use an informal, oral method to rescind his ear-
lier position and offer to negotiate.10
I find that there is no credible evidence that Provident re-
quested negotiations with the Union on August 30, 1989. It
follows that the Union cannot be found to have refused to
bargain with Provident.
CONCLUSION OF LAW
The General Counsel has not proved that the Union, Local
32B-32J, Service Employees International Union, AFL–CIO,
refused to bargain with Provident Operating Corp. since Au-
gust 30, 1989.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The complaint is dismissed.