Galaxy Towers Condominium Association

National Labor Relations Board - Board Decisions

Aug 29, 2014

361 N.L.R.B. 364 (N.L.R.B. 2014)

364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Galaxy Towers Condominium Association and Local
124, Recycling, Airport, Industrial & Service
Employees Union. Case 22–CA–030064
August 29, 2014
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND SCHIFFER
On September 25, 2012, Administrative Law Judge
Steven Davis issued the attached decision. The General
Counsel filed exceptions and a supporting brief, the
Charging Party filed exceptions, the Respondent filed an
answering brief, and the General Counsel filed a reply
brief. Further, the Respondent filed cross-exceptions and
a supporting brief, the General Counsel filed an answer-
ing brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.1
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order as modified.3
1 Chairman Pearce and Member Miscimarra are recused and took no
part in the consideration of this case.
2 In the absence of exceptions, we adopt the judge’s finding that the
Respondent satisfied its obligation to bargain with the Union over the
effects of its decision to subcontract the work of certain unit employees.
The General Counsel has implicitly 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 pre-
ponderance of all the relevant evidence convinces us that they are in-
correct. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
Consistent with our decision in Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB 101 (2014), the judge’s recommended Order
is modified to require the Respondent to reimburse the affected em-
ployees for the adverse tax consequences, if any, of receiving a lump-
sum backpay award, and to file a report with the Social Security Ad-
ministration allocating the backpay to the appropriate calendar quarters.
We shall also substitute a new notice to conform to the modified Order
and in accordance with our decision in Durham School Services, 360
NLRB 694 (2014).
3 On December 31, 2012, the Respondent filed a motion asking the
Board to take judicial notice of the opinion of United States District
Judge William J. Martini in Galaxy Towers Condominium Assn. v.
Local 124 I.U.J.A.T., No. 2:11-cv-04726 (WJM), 2012 WL 5986528
(D.N.J. Nov. 28, 2012), and to apply the doctrine of judicial estoppel
based on certain arguments made by the Union in the district court
case. In response, on January 4, 2013, the General Counsel moved to
strike the Respondent’s motion on procedural grounds. We adhere to
the general rule not to apply judicial estoppel where the Government
was not a party to the prior proceeding. Field Bridge Associates, 306
NLRB 322, 322 (1992), enfd. sub nom. Service Employees Local 32B-
32J v. NLRB, 982 F.2d 845 (2d Cir. 1993), cert. denied 509 U.S. 904
(1993). Accordingly, the Respondent’s motion is denied, and the Gen-
eral Counsel’s motion is denied as moot.
The issues in this case arise from the Respondent’s de-
cision to subcontract the work of all bargaining unit em-
ployees except its maintenance employees. We agree
with the judge that the Respondent violated Section
8(a)(5) and (1) by failing and refusing to furnish the Un-
ion with the Respondent’s Request for Proposals and the
bids it received in response,4 refusing to bargain for a
4 As explained below, the Union waived its right to bargain over the
subcontracting decision. The requested information, however, was
relevant and necessary for other reasons. See Emery Industries, 268
NLRB 824, 824–825 (1984) (union entitled to information over a
waived bargaining subject if it provides notice of another reason for
requesting the information). The Union made its request immediately
following a bargaining session in which the Respondent discussed its
purported economic savings from subcontracting and asked the Union
for a proposal that would generate similar savings. When the Union
made the request, the parties were engaged in ongoing negotiations
over the effects of the subcontracting decision and still had a duty to
bargain over the terms of a new agreement for the maintenance em-
ployees, whose work was not subcontracted. As the judge found, with-
out the Request for Proposals and the submitted bids, the Union did not
know the source of the savings from the subcontracting, thereby limit-
ing its ability to effectively prepare a counteroffer.
Plainly, the Respondent recognized the relation between the request-
ed information and the negotiations over an agreement for the mainte-
nance employees: it refused to engage in the latter until the parties had
reached an agreement over the effects of the subcontracting. Michael
Kingman, the Respondent’s lead negotiator, testified that a new agree-
ment for the maintenance employees was to be “part of the overall
package” derived from the subcontracting negotiations, at which time
the Respondent would be able “to determine what the economic availa-
bility was for the maintenance employees.” Moreover, in its June 28,
2011 letter to the Respondent, the Union noted that “matters incidental
to the potential subcontracting of bargaining unit work” had already
arisen during bargaining. The next sentence stated: “Additionally,
while the Union will continue to do its best to work from the limited
economic information given to us regarding subcontracting, this does
not mean we agree that Galaxy has provided all information requested
and needed in order for the Union to properly assess Galaxy’s pro-
posals and formulate its own proposals.” We believe that the letter and
the circumstances surrounding the Union’s request, advanced in the
midst of the parties’ ongoing negotiations over nonwaived bargaining
subjects, reasonably put the Respondent on notice of a relevant purpose
for requesting the information. See Brazos Electric Power Coopera-
tive, 241 NLRB 1016, 1018 (1979) (“[W]here the circumstances sur-
rounding the [information] request are reasonably calculated to put the
employer on notice of a relevant purpose which the union has not spe-
cifically spelled out, the employer is obligated to divulge the requested
information.”) (fn. omitted), enfd. 615 F.2d 1100 (5th Cir. 1980).
Member Johnson would not find that the Respondent was obligated
to supply the requested information because the information was re-
quested only for bargaining about subcontracting itself. The Union
never provided notice to the Respondent that it had another reason for
requesting the information. In the language from the Union’s June 28
letter quoted by the majority, the reference to “matters incidental to the
potential subcontracting” was not given as the reason for the infor-
mation request but rather as the lead-in to the Union’s asserted position
that by discussing “matters incidental” it was not agreeing to subcon-
tracting the work. Indeed the entire thrust of that letter was to assert the
Union’s position that it had not agreed to any subcontracting and was
not calculated to inform the Respondent that it now wanted the previ-
ously requested information for another purpose. The judge did not
361 NLRB No. 36

GALAXY TOWERS CONDOMINIUM ASSN. 365
new contract for its maintenance employees,5 and prema-
turely declaring impasse and then unilaterally imple-
find the failure to furnish information adversely affected the Union’s
ability to effectively prepare counteroffers over the effects or terms for
the maintenance employees. Rather, the judge concluded that the Re-
spondent had satisfied its effects bargaining obligation. The judge, thus,
did not find that the information request was for any other purpose. In
Brazos Electric Power Cooperative, supra, because of the parties’ long
bargaining practice regarding wages, arguably the employer reasona-
bly had constructive notice of the reason for the union’s information
request. Unlike those circumstances, the parties’ subcontracting dis-
cussions in this case were not reasonably calculated to put the Re-
spondent on notice. Here, in a situation where the request has an obvi-
ous relation to only a single topic—as with the Union’s May 11 infor-
mation request—as a party requesting information typically should
make clear any additional reasons why it might want such information.
Emery Industries, supra at 825 (union entitled to information only if
union gives employer actual or constructive notice of “another legiti-
mate basis for requesting the information”). Cf. Kennametal, Inc., 358
NLRB 553, 555 (union expressly requested information for decisional
and effects bargaining). Contrary to my colleagues, I do not agree that
connecting words out of their context constitutes giving reasonable
notice.
5 After deciding to subcontract the nonmaintenance work, the Re-
spondent never made a contract proposal covering the maintenance
employees, despite its obligation to bargain over their terms and condi-
tions of employment. In a July 8, 2011 letter to the Union, the Re-
spondent acknowledged that it had “made clear that bargaining as to a
contract for those few remaining [maintenance] employees you repre-
sent must await the economic costs resulting from any effects bargain-
ing agreement . . . .” Moreover, at the parties’ last bargaining session,
on July 27, 2011, the Respondent reiterated its refusal to bargain over
the economic terms of a contract for the maintenance employees. The
Respondent informed the Union that it was not prepared to negotiate a
contract for the maintenance employees at that time because it did not
know “the size of the economic pie” that would remain after the parties
reached an effects-bargaining agreement, which never occurred.
We disagree with our colleague’s suggestion that the Union should
have requested bargaining or made a contract proposal for the mainte-
nance employees. It would have been futile for the Union to request
bargaining, because the Respondent repeatedly insisted that the parties
conclude their bargaining over the subcontracting before negotiating an
agreement over the maintenance employees. In addition, as noted
above, the Respondent refused to respond to the Union’s request for
information that was necessary for the Union to effectively make con-
tract proposals regarding the maintenance employees. Moreover, and
contrary to our colleague’s assertion, the Union could not use the un-
implemented terms of employment in the Respondent’s March 16, 2011
final offer as proposals on behalf of the maintenance employees. At the
June 30 bargaining session, the Union had tried to do just that but was
summarily rebuffed by the Respondent. The Union began that session
by inquiring whether the March 16 final offer was still on the table.
According to his bargaining notes from that session, Respondent’s lead
negotiator, Kingman, responded that the Union had rejected the March
16 final offer, the parties had reached impasse as to its terms, and the
Respondent would not engage in piecemeal negotiations over that pro-
posal, which included a permissive bargaining subject. Our colleague
asserts that the reason Kingman rejected negotiations over the March
16 final offer was because the Union refused to agree to the Respond-
ent’s right to subcontract. However, nothing in the record supports a
conclusion that Kingman knew whether the Union’s position had re-
mained unchanged between bargaining sessions as the prospect of
subcontracting grew closer. Indeed, the record supports the opposite
menting new terms and conditions of employment.6 In
addition, for the following reasons, we agree with the
conclusion. Ruth Olsen, a member of the Respondent’s own union
advisory committee, testified that at the June 30 bargaining session the
Union was willing to bargain for a contract incorporating economic
terms from the March 16 final offer and over the effects of the layoffs
from the Respondent’s subcontracting decision. In any event, by June
1, 2011, the March 16 final offer was entirely retroactive and would not
have covered the maintenance employees going forward.
6 Although the premature declaration of impasse and subsequent im-
plementation of new terms and conditions of employment are not spe-
cifically alleged in the complaint, these issues were fully litigated and
closely connected to the issue of the Respondent’s right to unilaterally
subcontract bargaining unit work. See Pergament United Sales, 296
NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d. Cir. 1990). The Re-
spondent does not dispute this, but merely contests the judge’s related
findings on the merits, which we adopt. In doing so, we note that, on
June 30, 2011, the Respondent told the Union that the parties had
reached impasse on the Respondent’s right to subcontract and on its
March 16, 2011 final offer, and it subsequently implemented those
terms unilaterally. For the reasons stated by the judge, however, the
Respondent’s conduct precluded a valid impasse and the Respondent’s
implementation of its final offer. We find A & L Underground, 302
NLRB 467, 469 fn. 9 (1991), on which our colleague relies, to be inap-
posite. The issue there was when the 10(b) limitation period starts to
run in contract repudiation cases, not the determination of the necessary
elements for a finding of unlawful unilateral implementation.
Member Johnson would not find the Respondent refused to bargain
for a new contract for its maintenance employees, unlawfully declared
impasse, or implemented new terms and conditions of employment.
Both the Respondent and the Union recognized that the subcontracting
was the pivotal issue that had to be dealt with first. But the evidence
does not show that the Respondent was unwilling or refused to bargain
about the maintenance employees in general either before or, as alleged
in the complaint, after July 27, 2011. The General Counsel also failed
to prove the unalleged unlawful impasse and implementation viola-
tions. The Respondent argued, in addition to asserting its right to sub-
contract work under the management-rights clause, that it lawfully
bargained to impasse over subcontracting and was thus privileged to
subcontract the bargaining unit work. The judge’s finding that the Un-
ion had clearly and unmistakably waived the right to bargain over sub-
contracting, which we adopt, then made the judge’s unlawfully de-
clared impasse finding unnecessary. Intermountain Rural Electric Assn.
v. NLRB, 984 F.2d 1562, 1566–1567 (10th Cir.1993) (clear and unmis-
takable waiver of union right to bargain waives requirement that genu-
ine impasse precede unilateral action). The evidence does not show the
Respondent implemented any other terms and conditions of the last,
best, and final offer to the maintenance employees. Without an actual
implementation, there cannot be a violation for unlawful unilateral
implementation. See A & L Underground, 302 NLRB at469 fn. 9 (un-
lawful unilateral change occurs when change actually implemented).
The majority asserts that, after deciding to implement the subcontract-
ing, the Respondent never made a contract proposal for the mainte-
nance employees. Neither is there evidence that the Union requested
such bargaining or itself made any proposal for the maintenance em-
ployees. Moreover, although the unimplemented terms of employment
in the Respondent’s March 16 offer had become retroactive by June 1,
2011, they remained proposals that the Union could have negotiated
for on behalf of the maintenance employees. Further, the Respond-
ent’s negotiator, Kingman’s, comments about the March 16 offer made
on June 30 are cited out of context. His comments were in response to
the Union’s attempt to accept just the economic and other terms of the
March 16 proposal without agreeing to the management’s right to sub-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 366
judge that the Respondent did not violate Section 8(a)(5)
by unilaterally subcontracting bargaining unit work.
To resolve this issue, it is necessary to consider the
parties’ actions in the context of their bargaining rela-
tionship over time. On June 5, 2006, the Board certified
Local 124 of the Recycling, Airport, Industrial & Service
Employees Union as the bargaining representative of the
Respondent’s employees. A month later, the Union and
the Respondent commenced negotiations for a collective-
bargaining agreement. On August 8, 2006, in response
to the Union’s initial proposals, the Respondent’s coun-
sel, Stephen Ploscowe, submitted counterproposals, in-
cluding a revised management-rights clause providing
that “[m]anagement of the [Respondent’s] operations and
the direction of its working force, including the right to .
. . . subcontract any work . . ., shall be vested solely and
exclusively in the [Respondent].” On August 15, 2006,
Union Counsel Christopher Sabatella responded that the
Union “[a]ccepted as drafted” the language in the Re-
spondent’s proposed management-rights clause. The
next day, on August 16, 2006, Ploscowe sent Sabatella a
redlined draft agreement that incorporated the Respond-
ent’s counterproposals, including its management-rights
clause, into the Union’s initial proposals.
In September and October, the parties continued to ex-
change proposals. Although they made changes to vari-
ous other terms of the agreement, the management-rights
clause remained unchanged throughout, with no indica-
tion that the Union either considered the provision still
open or had rejected it.
While negotiations for a complete agreement were on-
going, the parties decided to immediately implement
certain agreed-upon terms in a “final offer.” The Re-
spondent prepared the final offer, which covered wages,
benefits, vacation days, and paid time off, and contained
a “Contract Language” provision that stated: “As agreed
upon to date and/or as to be resolved by the parties dur-
ing final drafting as to any open items.” On December 6,
2006, the Union presented these terms point-by-point to
its members, who voted to ratify them. On January 2,
2007,7 the Union signed a memorandum of agreement
implementing the terms of the final offer, including the
Contract Language provision.
contract as part of an overall negotiated settlement. Olsen’s testimony
also supports finding that the Respondent did not refuse to negotiate for
the maintenance employees. She testified that at the June 30 session
Kingman said “that he’d be glad to negotiate for IUS [the maintenance
employees], which was not going to [be subcontracted] . . . .” Olsen
testified that, while Kingman expected that negotiation would occur
after the severance issue was resolved, it was her understanding that
“he would be happy to start negotiating [a contract for maintenance
employees] whenever . . . .”
7 All further dates are in 2007, unless otherwise specified.
On March 13, Ploscowe sent a copy of a draft collec-
tive-bargaining agreement containing the management-
rights clause to Union Secretary-Treasurer James Berna-
done. On May 7, Steven Goldblatt, who had replaced
Sabatella as the Union’s counsel, wrote to Ploscowe,
listing four issues the Union wished to address in addi-
tional negotiations. The management-rights clause was
not on the list. On May 17, Ploscowe and Goldblatt dis-
cussed the Union’s four outstanding issues by telephone.
On May 24, Ploscowe informed Goldblatt that the Re-
spondent would agree to the Union’s request on one of
the four issues and would look into another, but that the
other two issues had already been negotiated and agreed
to by the parties at the bargaining table. At no time did
Goldblatt raise any concerns about the management-
rights clause or the subcontracting language.
On August 1—almost a year after the Union had “ac-
cepted as drafted” the management-rights clause granting
the Respondent the unilateral right to subcontract—
Wendy Shepherd, the Union’s new counsel, notified
Ploscowe that “[t]he Union did not agree to the inclusion
of subcontracting language.” On August 6, Ploscowe
wrote to Shepherd that the Respondent was upset by the
Union’s “attempt to renegotiate what was agreed upon
during the negotiating process” and that, after the Re-
spondent had proposed the subcontracting language on
August 8, 2006, “[t]he same language appeared in every
draft of the agreement that followed including those
drafted by [the Respondent] and [the Union]. It was
never challenged by [the Union]. Thus, it is clear that it
was agreed upon.”
On August 17, the Respondent filed an unfair labor
practice charge against the Union, alleging regressive
bargaining. On October 1, 2008, the parties entered into
an informal settlement agreement in which the Union
agreed to post a notice stating that it would not “unlaw-
fully withdraw from tentative agreements reached during
negotiations for a collective bargaining agreement, in-
cluding tentative agreements reached with Galaxy con-
cerning subcontracting,” and would “rescind [its] with-
drawal from tentative agreements reached, including
subcontracting,” as specified in the management-rights
clause that it accepted on August 15, 2006.
Based on the totality of the parties’ conduct from 2006
through 2011, we find that the Union clearly and unmis-
takably waived its right to bargain over the Respondent’s
July 2011 decision to subcontract bargaining unit work.
In August 2006, the Union “accepted as drafted” the Re-
spondent’s proposed management-rights clause, which
granted the Respondent the right to unilaterally subcon-
tract bargaining unit work. By itself, of course, this ten-
tative agreement did not bind the Union, nor waive the

GALAXY TOWERS CONDOMINIUM ASSN. 367
Union’s right to bargain over the Respondent’s subcon-
tracting decision. See, e.g., Stroehmann Bakeries, 289
NLRB 1523, 1524 (1988). But “parties negotiating for a
contract always have the ability to make any provisions
final and binding along the way . . . .” Id. That is what
happened here. On January 2, 2007, the Union ratified
the memorandum of agreement, which immediately im-
plemented the contract language “agreed upon to date,”
including all of the parties’ tentative agreements. It was
not until August 1, almost 7 months later, that the Union
first raised any concerns about the management-rights
clause. Even after doing so, the Union ultimately agreed,
pursuant to an informal settlement agreement, that it
would not engage in regressive bargaining and specifi-
cally that it would rescind its withdrawal from the tenta-
tive agreement regarding the Respondent’s right to sub-
contract. Accordingly, we adopt the judge’s finding that
the Respondent did not violate Section 8(a)(5) and (1) by
subcontracting the work of bargaining unit employees.8
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Galaxy
Towers Condominium Association, Guttenberg, New
Jersey, its officers, agents, successors, and assigns, shall
take the action set forth in the Order as modified.
1. Insert the following after the judge’s paragraph 2(e)
and reletter the subsequent paragraphs:
“(f) Compensate employees for the adverse tax conse-
quences, if any, of receiving lump-sum backpay awards,
8 Member Hirozawa agrees with his colleagues that the language of
the management-rights clause would, if implemented, clearly and un-
mistakably waive the Union’s right to bargain over the decision to
subcontract. In his view, however, the Respondent failed to show that
the parties intended to implement the management-rights clause prior to
the execution of a full and final agreement. The memorandum of
agreement, which sets forth certain specific economic terms, is ambig-
uous as to whether the parties intended for it to implement the man-
agement-rights clause absent a complete contract. It also fails to refer-
ence either the management-rights clause or subcontracting, and its last
provision, “Contract Language,” could reasonably be read as pertaining
only to the parties’ agreement on contract language for the economic
terms contained therein. Moreover, the October 1, 2008 settlement
agreement executed by both the Respondent and the Union refers to the
management-rights clause only as a “tentative agreement.” See Taylor
Warehouse Corp., 314 NLRB 516, 517 (1994) (“Under Board law,
tentative agreements made during the course of contract negotiations
are not final and binding.”), enfd. 98 F.3d 892 (6th Cir. 1996). Finally,
given the substantial waiver of rights the management-rights clause
represents in this case and consistent with the burdens of proof, Mem-
ber Hirozawa thinks it appropriate to resolve doubts about whether the
parties implemented it against implementation. For all of the foregoing
reasons, Member Hirozawa would find that the parties did not imple-
ment their tentative agreement on the management-rights clause, and
therefore the Respondent violated Sec. 8(a)(5) and (1) by unilaterally
subcon-tracting bargaining unit work.
and file a report with the Social Security Administration
allocating the backpay awards to the appropriate calendar
quarters for each employee.”
2. Substitute the attached notice for that of the admin-
istrative 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT refuse to give the Union the information it
requests which is necessary and relevant to the Union in the
performance of its duties as the exclusive collective-bargaining
representative of the employees in the appropriate unit.
WE WILL NOT refuse to bargain with the Union for a
new contract.
WE WILL NOT insist to impasse upon a matter that does
not constitute a mandatory subject of bargaining under
Section 8(d) of the Act.
WE WILL NOT implement terms and conditions of em-
ployment for you when we have not reached a valid im-
passe in bargaining with the Union.
WE WILL NOT in any like or related manner interfere
with your rights under the Act.
WE WILL give the Union the information it requested in
its letter of May 11, 2011.
WE WILL, on request, bargain with the Union for a new
contract, and, if an understanding is reached, embody the
understanding in a signed agreement.
WE WILL, upon request from the Union, rescind the
unilateral changes to the terms and conditions of em-
ployment of the employees who have not been affected
by our lawful decision to subcontract certain unit work
until such time as we have bargained with the Union in
good faith to an agreement or impasse on the terms and
conditions of employment of such employees.
WE WILL make the employees who are not affected by
our lawful decision to subcontract certain unit work,
whole for any loss of earnings and other benefits they

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 368
may have suffered as a result of our unlawful actions,
with interest.
WE WILL make all contractually-required benefit fund
contributions, if any, that have not been made to the
fringe benefit funds on behalf of the employees who are
not affected by our lawful decision to subcontract certain
unit work, and reimburse those employees for any ex-
penses ensuing from our failure to make the required
payments, with interest.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file a report with the So-
cial Security Administration allocating the backpay
awards to the appropriate calendar quarters for each em-
ployee.

GALAXY TOWERS CONDOMINIUM ASSOCIATION

The Board’s decision can be found at
www.nlrb.gov/case/22-CA-030064 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1099 14th Street, N.W., Washington, D.C. 20570, or
by calling (202) 273-1940.

Benjamin Green, Esq., for the General Counsel.
Michael E. Lignowski and Joseph C. Ragaglia, Esqs. (Morgan,
Lewis & Bockius, LLP), of Philadelphia, Pennsylvania, and
Christopher P. Murphy, Esq., of Media, Pennsylvania, for
the Respondent.
Steven H. Kern and Lauren M. Kugielska, Esqs. (Barnes, Iac-
carino & Shepherd, LLC), of Elmsford, New York, for the
Union.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on July 6, 2011, by Local 124, Recycling, Airport,
Industrial & Service Employees Union (the Union), a complaint
was issued against Galaxy Towers Condominium Association
(Respondent, or Galaxy, or the Employer) on October 31, 2011.
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the National Labor Relations Act (the Act) in
three respects. First, since about May 11, 2011, the Respondent
refused to furnish the Union with certain information it had
requested. Second, that since about July 27, 2011, the Respond-
ent failed and refused to bargain with the Union for a new con-
tract, and finally, that on about August 1, 2011, the Respondent
subcontracted the work of unit employees and laid off all the
unit employees except the maintenance employees, without
affording the Union an opportunity to bargain with Respondent
with respect to this conduct and the effects of this conduct. The
complaint’s proposed remedy is that an order be issued requir-
ing the Respondent to restore its business operations as they
existed before bargaining unit work was subcontracted on about
August 1, 2011.
The Respondent’s answer denied the material allegations of
the complaint, and on 12 days from January 12 to April 27,
2012, a hearing was held before me in Newark, New Jersey,
and in New York, New York.1 Upon the evidence presented in
this proceeding, and my observation of the demeanor of the
witnesses, and after consideration of the briefs filed by the
General Counsel and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
The Respondent, a New Jersey corporation, having an office
and place of business in Guttenberg, New Jersey, has been
engaged in the management of a residential condominium
complex. During the preceding 12-month period, the Respond-
ent, in conducting its business operations, derived gross reve-
nues in excess of $500,000, and purchased and received at its
Guttenberg, New Jersey facility, goods and supplies valued in
excess of $5000 directly from suppliers located outside New
Jersey. The Respondent admits and I find that it has been an
employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Respondent also admits, and I find, that the Union has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. BACKGROUND
Galaxy Towers is a condominium residential apartment
building consisting of 1076 residential units and 32 commercial
units.
On June 5, 2006, the Union was certified by the Board as the
exclusive collective-bargaining representative of the employees
in the following admittedly appropriate collective-bargaining
unit:

All full-time and regular part-time service employees,
maintenance employees, garage attendants, master mechanics,
concierges, doormen, porters, handymen, security guards and
hall persons, employed by Respondent at its 7000 Boulevard
East, Guttenberg, New Jersey facility, but excluding all office
clerical employees, temporary employees, managerial em-
ployees, professional employees, guards and supervisors as
defined in the Act.
1 After the hearing closed, I denied the Respondent’s motion to reo-
pen the hearing to introduce a purported Federal criminal indictment
against witness James Bernadone. I also denied the Respondent’s re-
quest to file a reply brief.

GALAXY TOWERS CONDOMINIUM ASSN. 369
III. THE INTERIM AGREEMENT
Bargaining began on about July 6, 2006. Representing the
Union were Louis DeAngelis, its labor relations and benefits
consultant, James Bernadone, its secretary-treasurer, and Chris-
topher Sabatella, its attorney. The Respondent was represented
by Attorney Stephen Ploscowe. The Union’s first proposal
consisted of the prior agreement between Local 734, the Union
which had represented the unit prior to the certification of Lo-
cal 124. DeAngelis made some changes to that contract before
he presented it to Ploscowe. The Union’s proposed contract
contained essentially the same provision, article 12—
Production Efficiency and Management Rights—as that con-
tained in the Local 734 agreement. That proposal did not spe-
cifically mention that the Employer had the right to subcontract
work, and indeed, did not mention “subcontracting” at all.
On August 8, the parties executed an “Interim Agreement”
which stated that the parties “have reached the following inter-
im agreement subject to the remaining negotiations and final
agreement.” The Interim Agreement provided for checkoff, no
strike/no lockout, grievance/arbitration provisions, new hire
language, and for a monthly supplemental bonus. The Interim
Agreement was silent as to management rights and subcontract-
ing.
Apparently on the same date, August 8, the Respondent
submitted a counterproposal to the Union’s first proposal,
which included a provision for management rights, as follows:

Article 12—Production Efficiency and Management Rights
Section 2a.
Management of the Employer’s operations and the direction
of its working force, including the right to establish new jobs,
change existing jobs, increase or decrease the number of jobs,
change materials or equipment, subcontract any work, change
any method of operations, shall be vested solely and exclu-
sively in the Employer. Subject to the provisions of this
Agreement, the Employer shall have the exclusive right to
schedule and assign work to be preformed and the right to
hire or rehire employees, promote, recall employees who are
laid off, demote, suspend, discipline or discharge for proper
cause, transfer or lay off employees because of lack of work
or other legitimate reasons, it being understood, however, that
the Employer shall not discipline or discharge an employee
except for proper cause or otherwise improperly discriminate
against an employee.

On August 15, Union Attorney Sabatella responded, accept-
ing, rejecting, and suggesting changes to the Respondent’s
counterproposal. His response specifically accepted the man-
agement-rights clause “as drafted,” and also said that “the Un-
ion reserves the right to add to, delete from or otherwise amend
and modify these proposals.”
On August 16, Ploscowe sent Sabatella a red-lined copy of
the Union’s first proposal with changes based on the Employ-
er’s counterproposals. It, too, contained the above-
management-rights clause as drafted by Ploscowe and accepted
by Sabatella.
On September 19, Ploscowe sent Sabatella another copy of
the “proposed collective-bargaining agreement,” noting some
changes that had been made since the last exchange of docu-
ments, and further noting which items remained open. Included
in the contract was the above-article 12, in which it was stated
that the right to subcontract any work is vested solely and ex-
clusively in the Employer. That section was not among the
items deemed to be “open.”
The Respondent notes that each draft contract exchanged by
the parties thereafter in 2006 contained the above-management-
rights clause giving the Respondent the exclusive right to sub-
contract any work.
On November 13, Ploscowe sent DeAngelis an email with an
attachment, stating that it was a copy of the proposed agree-
ment last drafted by Sabatella on October 5, with notations
indicating which items were agreed upon (okay) or not agreed
upon (open). The management-rights clause, as set forth above,
was included in the agreement, with no notation that it was
either “okay” or “open.”
In late 2006, Sabatella was dismissed as the Union’s counsel
and DeAngelis began bargaining with Ploscowe.
IV. THE MEMORANDUM OF AGREEMENT
On December 6, the employees ratified a “final offer” on
economic terms which included wages, medical benefits, paid
time off, vacations, retirement program, and a new hire rate. It
was provided as follows: “Contract Language: As agreed upon
to date and/or as to be resolved by the parties during final draft-
ing as to any open items.”
The Union insisted that the only items ratified were the
MOA’s economic terms, and that no management-rights clause
was ratified.
Following the ratification by the employees, a Memorandum
of Agreement (MOA), prepared by Ploscowe, was signed in
early January 2007. It states that the Employer and the Union
“hereby agree to the following terms of a new agreement which
was ratified by the Local 124 members.” It covers the term of
the agreement, from June 1, 2006, to May 31, 2009, and listed
the wage increase amounts, medical coverage amounts, paid
time off days, vacations, retirement program, and a new hire
rate.
The MOA also contains the following:

Contract Language: As agreed upon to date and/or as to be re-
solved by the parties during final drafting as to any open
items. It is specifically agreed as follows as to these open
items:

1. Article 4 (Vacations), Section 3 shall read as fol-
lows:
Unearned vacation time may not be used. The Em-
ployer may use part-time or temporary employees
to fill in for vacation time off. Vacation time off is
paid at the employee’s base rate of pay at the time
of vacation. It does not include overtime or any
special forms of compensation such as incentives,
com-missions, bonuses, or shift differentials.

2. Article 17 (Miscellaneous), Section 6b shall read:
Unearned PTO [paid time off] days may not be
used as sick days without the express approval of
the Employer’s General Manager for a verifiable
illness. Upon termination of employment, Employ-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 370
er shall deduct payment given for unearned sick
days from employee final check.

As to those two items, DeAngelis stated that the parties
“specifically agreed to them,” but that “everything else in the
article or in the contract was open.” He added, “[T]here may
have been some tentative agreements which I came to know,
but they were all tentative subject to a final agreement and rati-
fication . . . . It didn’t bother me about any of that language,
because I knew at some point we were going to sit down and
bargain a contract. We just wanted to expedite the economics.”
Ploscowe testified that it was his understanding that all tenta-
tive agreements reached prior to that time had been incorpo-
rated into the MOA. His pretrial affidavit states that the parties
reached an “MOA on most items. The MOA is dated December
12, 2006. The MOA states that there were still some open items
that the parties had to continue negotiating.”
Thereafter, on March 13, 2007, Ploscowe sent Bernadone a
copy of the “proposed agreement.” It contained article 13, sec-
tion 2a, providing that the Employer has the sole and exclusive
right to subcontract any work.
It also contained changes, additions, and deletions from the
proposed agreement sent to the Union on November 13, 2006.
For example, article 12, section 4(e) was marked as “ok—
9/28/06” in the agreement sent in November 2006. The clause
added in 2007 stated that when a temporary employee becomes
a regular unit employee, his/her probation period and date of
employment shall be the date the temporary employee is con-
verted to a regular employee.
In another change, the agreement “ok 9/28/06” in article 3
section 5 was supplemented in the March 2007 proposed
agreement to add that “if any employee does not work on a
scheduled work day, the time not worked will also be counted
toward determining the hours worked in any one week.”
Contract clause, article 7, section 4(E) marked “ok 9/28/06”
where it was agreed that seniority ceases after an absence from
work for 3 days without notice to the employer unless the em-
ployee is unable to give notice to the employer was changed in
March 2007 in article 8, section 4(E) to eliminate the last
phrase “unless the employee is unavailable to give notice to the
Employer.”
A contract clause, marked “ok 10/6/06” in article 10, section
1, provided for a standard union visitation clause with notice to
the Employer upon the agent’s arrival in the facility. It was
changed in article 11, section 1 in the March 2007 proposed
contract to provide that the failure to give such notice “will
result in forfeiture of the visitation privileges.”
Ploscowe wrote that if the agreement was acceptable, Berna-
done could sign it, but if Bernadone had any changes, he should
so advise Ploscowe. The Union did not sign the agreement and
Bernadone did not respond to Ploscowe’s request for com-
ments.
Thereafter, Stephen Goldblatt was retained by the Union,
and on May 7, he wrote to Ploscowe, stating that the Union
“has advised me that they would like to address the following
issues for negotiation with regard to the collective bargaining
agreement.”

1. A grievance procedure that permits more time for the
Union to file a grievance.
2. A provision desired by the Union for sick days instead of
paid time off days.
3. Implementation of the vacation schedule offered by the
Employer and ratified by the employees.
4. A discussion of the issue of temporary employees re-
garding overtime and transition to full-time status and
union membership.

Ploscowe responded the following day with his “preliminary
thoughts” after reviewing the four items with the Respondent.
He followed up on May 24 with the Employer’s responses to
the four items.
On June 1, Wendell Shepherd and her law firm were retained
by the Union. She asked Ploscowe for the status of the collec-
tive-bargaining agreement and Ploscowe sent her his May 24
note to Goldblatt. On July 3, Ploscowe sent her a “chronology
of negotiations” with the relevant documents from the begin-
ning of negotiations, including the draft contracts, Sabatella’s
emails, the MOA, and the Interim Agreement. In the letter,
Ploscowe told Shepherd that “the only four items that the Un-
ion has raised to date with regard to the collective-bargaining
agreement are the four items contained in the last few emails.
Other than that, as far as I know, the agreement has been totally
and fully accepted by the Union.”
Ploscowe wrote to Shepherd on July 29, advising that as to
their upcoming meeting, he was only aware of the four items
mentioned by Attorney Goldblatt as items being open. A meet-
ing was set for August 3. In advance of that meeting, Ploscowe
asked Shepherd to send him a list of which items the Union
believes are “open.”
DeAngelis stated that he reviewed with Shepherd the pro-
posed agreement sent in March 2007, the Interim Agreement,
and the MOA, and it was his position that he had never agreed
to the language items that were open, including subcontracting,
because no contract had been finalized. “The MOA was an
economic agreement and the other items were not finalized—so
we hadn’t reached a final contract and we hadn’t ratified a final
contract.”
DeAngelis stated that by May or June 2007, he became
aware that the proposed contract provided that the Employer
had a right to subcontract work and he “hit the ceiling.” He told
Ploscowe that “subcontracting negates the whole contract. We
may as well not have a contract if you have a right to just throw
everyone out.” Ploscowe replied that the Respondent’s board of
directors wanted a subcontracting clause. DeAngelis answered
that the Employer would not get that clause but if it was con-
cerned with a specific department, that could be discussed.
DeAngelis testified that Ploscowe did not tell him at that time
that the management-rights and subcontracting clauses had
already been implemented.
DeAngelis testified that he was not aware of the negotiations
between Sabatella and Ploscowe, specifically denying any
knowledge of the management-rights clause or Sabatella’s ac-
ceptance of it at that time. DeAngelis stated that there were
about 8 to 10 negotiation sessions in 2006. According to him,
the parties did not discuss the Employer’s proposal for a man-
GALAXY TOWERS CONDOMINIUM ASSN. 371
agement-rights clause or subcontracting because neither party
raised those issues.
DeAngelis stated that during the course of the parties’ dis-
cussions in 2006, they may have made certain tentative agree-
ments, but they were all tentative subject to a final agreement
and ratification of the contract. His goal was to “expedite the
economics, stating that the Union was under pressure from the
employees for a wage increase which they had not received for
1-1/2 years. DeAngelis believed that “tentative” agreements
meant that they were pending “some future agreement . . . sub-
ject to ratification by the members and a full final document.”
On August 1, Shepherd sent a two page list of items she
wished to discuss at the upcoming meeting. As relevant here,
the list included “Article 13—Section 2a—The Union did not
agree to the inclusion of subcontracting language. Section 2b—
The Union wants the old Section 2 language.”
Ploscowe wrote on August 6 that he and the Respondent
were upset at the Union’s “attempt to renegotiate what was
agreed upon during the negotiation process” calling the Union’s
actions “regressive.” He wrote that Union Attorney Goldblatt
identified only four areas of concern. Regarding the subcon-
tracting provision, Ploscowe wrote that “we proposed the ‘sub-
contracting’ language on August 8. See the attached August 8
proposals provided to the Union. The same language appeared
in every draft of the agreement that followed including those
drafted by [the Employer] and Local 124. It was never chal-
lenged by Local 124. Thus, it is clear that it was agreed upon.
[The Employer] will not give up its agreement.”
On August 9, Ploscowe wrote in a message to the Respond-
ent, that the Union wanted the word “subcontracting” deleted
from the management-rights clause, but that the Respondent’s
position is that the clause was agreed to, and not objected to
until Shepherd entered the negotiations. He added that, alt-
hough the Respondent rejected the Union’s position, it “will
agree to the following additional language as to subcontract-
ing.” Such language included that if the Respondent decided to
subcontract, it would give the Union 2 weeks’ notice and meet
with the Union upon request to negotiate the effects of any
subcontracting on any employee who is not hired by the sub-
contractor and is permanently laid off as a result of the subcon-
tracting.
On September 26, Shepherd wrote to Ploscowe, detailing the
Union’s positions on each clause it had questions about. Re-
garding the subcontracting clause, Shepherd noted that the Un-
ion “never agreed to the language in article 13, sections 2a and
b.
On November 9, 2007, Ploscowe wrote to Shepherd stating
that the Union specifically agreed to the management-rights
contractual language when Sabatella agreed to that language on
August 15, 2006, adding that Sabatella did not object to that
language which remained in all further drafts of the agreement.
At least continuing into March 2008, the Union insisted that
it would not agree to a contract that contained the Employer’s
right to subcontract. In July 2008, in an effort to reach agree-
ment on a collective-bargaining agreement, according to Shep-
herd, Ploscowe offered that if the Union agreed to the subcon-
tracting clause, the Respondent would provide overtime pay for
work done after 8 hours. The Union rejected that proposal and
the Respondent continued to insist on the subcontracting clause.
V. THE SETTLEMENT AGREEMENT
On October 1, 2008, the parties executed a Board Settlement
Agreement which settled a charge filed by the Employer. The
Agreement stated that the Union “will not, in bargaining with
the GTC [Employer], unlawfully withdraw from tentative
agreements reached during negotiations for a collective-
bargaining agreement, including tentative agreements reached
with Galaxy concerning subcontracting. We rescind our with-
drawal from tentative agreements reached, including subcon-
tracting, as described in the Production Efficiency and Man-
agement-Rights Clause, article 13, sections 2a and 2b.”
DeAngelis stated that his understanding of the Agreement
was that “tentative agreements” meant that they “were not
agreements we had entered . . . . and that they would be subject
to the final agreement and ratification.”
VI. FURTHER BARGAINING
At the last bargaining session in this series of negotiations in
December 2008, no final agreement on a contract was reached.
The Union refused to ratify the Respondent’s proposal for sub-
contracting contained in the management-rights proposal. The
Respondent renewed its offer of overtime after 8 hours if the
provision was ratified, but the Union rejected the offer. There-
after, Ploscowe sent a proposed contract to Shepherd with
changes from the agreement sent the Union in November 2006.
Ploscowe was replaced by Attorney Michael Kingman. With
the MOA having expired on May 31, 2009, the parties began
negotiations in June 2009, for a new collective-bargaining
agreement. The Union rejected the Respondent’s request for a
1-year extension of the current contract with a freeze on all
terms and conditions. Instead, the Union proposed a 3-year
contract. In return, the Employer proposed a 3-year wage freeze
on all wages and health insurance payments. The Respondent’s
proposal also stated that “the terms and conditions of the col-
lective bargaining agreement as modified by the [MOA] and
ratified by the stipulation of settlement entered into by the par-
ties with the NLRB shall continue in full force and effect. The
terms of the agreement as to . . . subcontracting . . . to remain
un-changed.”
On June 4, 2009, the Respondent sent its “proposal” for a
new contract to the Union. It consisted of a statement of eco-
nomic difficulty for the Employer’s homeowners—their pay-
ment of a special assessment of over $1.5 million due to the
cost of energy, and the fact that many were in default of their
mortgages and assessment payments. It called the Union’s de-
mands “unrealistic, excessive, and impossible.” The Respond-
ent proposed a 1-year extension of the current agreement with a
freeze on all terms and conditions including salary and benefits.
In turn, the Union proposed a 3-year contract.
The parties met at several bargaining sessions in June, July,
and August. Bargaining was not fruitful, and the MOA was
extended 3 months under separate agreements, to August 31,
2009.
Kingman stated that no agreement was reached on economic
items, subcontracting, or other terms. He added that in the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 372
summer of 2009, the Union had a “political problem” with the
subcontracting language and threatened to strike over the issue.
Kingman offered to change the wording of the subcontracting
clause but the Union refused. According to Kingman, he be-
lieved that subcontracting was provided for in the contract and
had been agreed to by the Union, but agreed to have an arbitra-
tor decide those issues and hold negotiations in abeyance.
VII. THE REQUEST FOR ARBITRATION
An “Interim Agreement” was executed on August 31, 2009,
in which the MOA was further extended to temporarily suspend
negotiations to permit binding arbitration “in connection with
the issue of subcontracting” of the following issues: “Does the
current agreement between the parties permit subcontracting by
the Employer, and, if so, what is the nature and extent of such
permitted subcontracting.” The arbitration never took place
based on the Respondent’s request for an indefinite postpone-
ment which the Union objected to. No decision was issued by
the arbitrator.
While the matter was pending before the arbitrator, no nego-
tiations took place between September 2009 and spring 2010.
In January 2010, the Union instituted several arbitrations re-
lating to discharges of workers, the proper wage rate, misclassi-
fication of employees, and entitlement to vacations. In Febru-
ary, Kingman wrote to one of the arbitrators that since the Un-
ion was of the opinion that the contract was not legal and bind-
ing, he did not agree that the matters may properly be submitted
for arbitration at that time.
VIII. ANOTHER MOA AND SUBCONTRACTING
In early August 2010, Kingman met with DeAngelis and
Bernadone. They discussed a 2-year collective-bargaining
agreement which included, according to Kingman, “some new
language concerning subcontracting.” Kingman hand-wrote
proposed subcontracting language and gave it to the two union
agents, telling them that subcontracting was “inevitable” and
that it could take place within 1 year. They discussed that a
company named PM Solutions had done a study of the Re-
spondent with a view of saving money from its operations, and
that PM suggested subcontracting. Kingman gave them the
phone number of Michael Frances, a principal in Planned
Building Services (PBS) a cleaning contractor, who he said
“may in fact wind up being a subcontractor here.” The union
agents did not meet with Frances.
According to Kingman, the union agents asked about bump-
ing rights of employees if their work was subcontracted. King-
man wrote a two paragraph addition to a subcontracting clause
with bumping rights described. It stated, in part, that “in the
event the employer shall subcontract a department or division,
the employees . . . . shall have the right to exercise bumping
rights over less senior employees”
According to Kingman, he and the union agents reached an
agreement on the terms of a complete collective-bargaining
agreement. On August 23, Kingman sent a copy of the agree-
ment to the Union with instructions that it be signed and re-
turned to him for a vote by the Respondent’s board of directors
2 days later.
The document, entitled “Memorandum of Agreement,” states
that the 2006–2009 contract, as amended by the MOA signed in
early January 2007 “shall continue in full force and effect ex-
cept as modified and amended by this CBA.”
The contract provides for a 2-year term, from June 1, 2009,
to May 31, 2011. It also provides that there shall be no increas-
es in wages or medical benefits for the first year, but a 2-
percent increase in both categories the second year. It further
provides that the management rights provision, article 13, sec-
tion 2 of the Agreement is amended as follows:

In the event the Employer shall subcontract a Department or
Division, the employees of such Department or Division shall
have “bumping rights” over less senior employees in job cat-
egories in other Departments or Divisions where such em-
ployees shall possess the requisite skill set and qualifications
for such job category. The Employer shall have the right to
discontinue and terminate its status as the Employer at the
GTCA, and shall have the right to “outsource”, that is, retain a
third party who shall thereafter become for all legal and law-
ful purposes the employer of all employees at the GTCA fa-
cilities.

The Union did not sign this MOA.
On November 19, 2010, the Respondent issued a Request for
Proposal (RFP) in which it sought proposals for the outsourcing
of garage services, security services, custodial services, front
desk/concierge services, maintenance, and unit service. The
deadline for the submission of bids was December 22, 2010.
Five prospective subcontractors submitted bids. Later, the Re-
spondent limited its intention to subcontract to front services,
housekeeping, and the garage staff.
The parties resumed negotiations in December 2010, and
seven bargaining sessions were held thereafter from March
through June 2011.
On March 16, 2011, the Respondent presented its last, best
and final contract offer. It stated that the contract between the
parties which ran from June 1, 2006, through May 31, 2009, as
amended by the MOA “shall be deemed to have been and con-
tinue in full force and effect except as modified by the terms
contained herein.” The proposed contract provided, inter alia,
for a 2-year term, from June 1, 2009, to May 31, 2011, and a
management-rights clause which included the “bumping rights”
provision set forth above. It also included a statement that the
“Welfare Plan shall dismiss the lawsuit filed in the Federal
District Court against the GTCA for additional benefit pay-
ments through 2009 with prejudice in return for payment of the
sum of $2,000.” The Union did not respond to that offer.
On April 12, 2011, Kingman sent an email to the Union’s
law firm which stated that the Respondent was prepared to
continue negotiations. The note also said that the Employer is
“con-templating alternative employment scenarios whereby
[the Employer] would no longer be the direct employer” of the
housekeeping, concierge, and security departments. Kingman
sought to discuss this with the Union at their next meeting, with
a view toward the Respondent’s board making a final decision
in June, and implementing a change in operations, if necessary,
effective July 1, 2011.
GALAXY TOWERS CONDOMINIUM ASSN. 373
IX. THE REQUEST FOR INFORMATION
At a bargaining session on May 9, the Respondent presented
a PowerPoint presentation with slides, the essence of which
was that the Employer could save over $1 million per year by
subcontracting some of the services it performs. The Union
requested that certain information be provided. The request, as
relevant here, was made in written form 2 days’ later on May
11:

1. Please provide the Request for Proposals (or Requests, if
more than one) said to have been sent out by Galaxy
concerning outsourcing of bargaining unit work and su-
pervisory/management work related to such bargaining
unit work that may be outsourced along with it.
2. Please provide the bids or offers or proposals said to
have been received from five entities for performance of
such work on an outsourced basis.

In an email dated May 19, Kingman informed the Union that
it did not believe that some of the information requested was
“relevant to the union’s role as bargaining representative”
Kingman stated that the savings in costs by subcontracting
would be more than $1 million per year. The email included
certain “relevant information, consisting of information pre-
sented at the last bargaining session, and additional information
consisting of services and overall cost savings to be provided
by vendors who bid on the RFP.” Specifically, the email in-
cluded a 4-page document consisting of (a) a list of services to
be provided by vendors who bid on the Employer’s RFP which
included security and guard-related services; garage exit &
entrance position monitoring; janitorial service; and concierge
and doorman services; (b) a list of numbers of staff needed for
positions in security and garage, front service, and custodial;
and (c) a chart of “cost to provide service,” listing the 2011
budget, vendor range dollars, vendor which could be selected,
and projected savings.
Kingman asked the Union for an alternative proposal which
would generate similar savings.
Kingman testified that he did not believe that the Union’s re-
quest for bids and the request for proposals were relevant to
effects bargaining or to the cost issue of the Respondent saving
money by subcontracting. Nevertheless, the Respondent; pro-
vided some information. However, Kingman conceded that the
information it provided was “in a different format than they
requested it.” The Union’s witnesses denied receiving the re-
quested information set forth in its May 11 request, above.
Specifically, the Respondent’s brief states that, as to the Re-
quest for Proposals (item one in the Union’s May 11 letter), the
Respondent’s May 19 email and attachment contains all the
information requested—in other words, the information con-
tained in the Request for Proposal, but not the specific Request
itself. In addition, Kingman testified that he told the Union that
its request was not relevant since “the RFP contains infor-
mation that is descriptive of the Galaxy and therefore is mean-
ingless to providing the specific services that the Union pro-
vides. Secondly, because the Union already provides the ser-
vices and therefore doesn’t need the RFP to say that security
workers or maintenance workers do a particular job. The nature
of the RFP itself is such that it has no bearing whatsoever on
the ability of the union to calculate how much they’re getting or
what the services they’re getting are.”
As to the request for bids received from the five bidders
(item two in the Union’s May 11 letter), those bids were not
provided. Kingman testified that he told the Union that the
request was not relevant because two of the bids were from
nonunion contractors and were not considered. It also did not
provide the bid from the only vendor being considered, PBS,
because its bid was subject to negotiation resulting in changed
prices from the original bid.
X. CONTINUED BARGAINING AND THE DECISION
TO SUBCONTRACT
The parties bargained on May 23. By that time the Respond-
ent’s board of directors had not made a decision regarding sub-
contracting and the Union had not made a specific proposal on
that issue. Kingman noted that the Union’s position at all times
was that the Respondent should not subcontract any work.
Kingman testified that the Union did not, at any time, make a
proposal which would save the Respondent money. However,
Kingman did concede that DeAngelis attempted to “put togeth-
er a package that included the subcontracting” which would not
have increased the Employer’s costs.
Kingman testified that on June 6, DeAngelis told him that he
believed that one third of the unit employees would accept a
severance package, on third would accept an offer of employ-
ment from PBS, and one third would “walk away.”
A bargaining session was held the next day. DeAngelis testi-
fied that at the meeting the Union again requested the infor-
mation it had asked for. However, according to Kingman,
DeAngelis asked Attorney Steven Kern if they could limit the
information the Union sought, and just ask for the information
they “really need.” Kern said that he needed the number of
hours the employees would be working at the subcontractor.
According to Kingman, the parties then discussed effects bar-
gaining and how the subcontracting would be implemented.
They spoke about meeting with PBS. After a break, Kern said
that he still wanted the Request for Proposal and the bids.
According to Kingman, the Union did not make a proposal in
response to the Employer’s position on subcontracting that
would have reduced direct labor costs for the Employer. In fact,
Kern said that the Union could not match the anticipated sav-
ings due to subcontracting unless all the employees took a 30-
percent pay cut. Kingman advised Kern that the Respondent’s
board of directors was scheduled to meet on June 9.
On June 9, the Respondent’s board of directors voted to au-
thorize Kingman to enter into negotiations with PBS for a con-
tract for subcontracting.
According to Kingman, at their June 16 meeting, he and
DeAngelis discussed the “possibility of structuring the subcon-
tracting”—the Union wanted PBS to hire as many of the Re-
spondent’s employees as possible. DeAngelis expected to make
a “comprehensive offer” at the next meeting.
DeAngelis testified that on June 20, he proposed a plan in
which every employee would be offered severance pay. De-
pending on the number of employees who accepted that offer,
estimated at about 30percent, the Union estimated that the Em-
ployer would save about $400,000 to $500,000. It was the Un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 374
ion’s belief that these potential savings would cause the Em-
ployer to rescind its decision to subcontract the unit employees’
work. At that time the Employer’s board of directors had voted
to hire PBS to perform the work in the job categories described
above.
The Respondent argues that, by negotiating concerning the
number of employees who would receive severance pay and
those who would be employed by PBS, the Union “acquiesced”
in the decision to subcontract and focused solely on bargaining
over the effects of that decision. I do not agree with the Re-
spondent. Clearly, at that point, the Union was insisting that it
never agreed to subcontracting.
On June 23, Kingman advised the Union that the Respondent
“has voted to retain an independent company to provide ser-
vices to residents at the Galaxy, and the employer is presently
engaged in effects bargaining with the union as to the cessation
of employment activities by the Galaxy Towers.” On June 28,
Union Attorney Kern wrote to Kingman stating that although
the current bargaining has included “matters incidental to the
potential subcontracting of most bargaining unit work” that
should not be construed as the Union’s agreement that such
subcontracting may lawfully be done. In fact, Kingman con-
ceded that the Union never said that it was waiving its right to
bargain over the Employer’s decision to subcontract. Rather,
according to Kingman, the Union stated that it understood what
the Employer was doing and why it is taking that course of
action, and “we can’t match the savings.”
On the same day, June 23, Kingman advised the Union that,
inasmuch as it is engaged in effects bargaining with the Union,
the issue before the arbitrator should be held in abeyance pend-
ing the conclusion of [effects bargaining] negotiations.
At the June 30 bargaining session, Union Attorney Kern
asked, “[W]hether a contract is still on the table.” DeAngelis
testified that he told Kingman that “he wants to negotiate a
contract—he still wanted to have a collective-bargaining
agreement, a full agreement, and we would discuss the [em-
ployees] who would accept a voluntary severance and how that
impacted them.” De Angelis repeated that he wanted a 3-year
contract and wage increase, referring to the March 16 proposal.
Kingman replied that the Union must “sign off on all litiga-
tion,” meaning that it had to withdraw the pending ERISA law-
suit, the Employer was “getting out of the employment busi-
ness” and was “bringing [PBS] in in July, and that impasse had
been reached on the terms of the contract—that it had made its
last, best, and final offer. They rejected it. We’ve moved way
beyond that. Now we’ve gone onto subcontracting and we’ve
engaged in effects bargaining.”
Kingman told the union bargainers that “we reached impasse
when they rejected our last, best final offer and we were not
going to negotiate that proposal piecemeal since it was interde-
pendent and contingent on the economic savings that would be
realized from outsourcing.”
On about July 6, the Respondent signed a contract with PBS.
On July 6, Union Attorney Shepherd wrote to Kingman that the
Union’s position continues to be that the Employer is contrac-
tually unable to subcontract bargaining unit work.
On July 8, Kingman wrote to the Union, reminding it that the
parties have been engaged in effects bargaining in their last
several sessions over the past 3 months. He further noted that
he expected that the employment of the Employer’s employees
would cease as of August 1, as the contract with PBS had been
signed.
On July 12, the Employer advised its employees that it had
decided to hire PBS to provide the services that they had previ-
ously performed in the security, garage, front service, and cus-
todial departments, and that their employment would be termi-
nated, effective August 1, 2011.
DeAngelis testified that the Union did not receive all the in-
formation it had asked for and at the final bargaining session on
July 27, he requested the information the Union had previously
asked for. Union Attorney Kern told the Employer that “in
order to really know better what we were doing, we still wanted
to have the request for proposals.” The Union also wanted to
receive the bids for the work in order to determine whether the
bid was a “decent bid or contract.” The Union insisted that its
position continued to be that it wanted an “overall contract” and
voluntary severance for the Respondent’s employees.
At that meeting, according to Kingman, Union Agent Berna-
done claimed that the parties had not engaged in effects bar-
gaining. Kingman replied that Bernadone had not been at half
the meetings, and at those meetings he attended, he stormed
out. Then, Bernadone “went berserk.” Kingman stated that no
one wanted to subcontract but it was “purely and totally eco-
nomics.” They discussed the fact that layoff notices had been
sent, and that the Employer wanted the employees to receive
severance pay. DeAngelis offered to put a package together
regarding the number of employees who would be hired by
PBS. Kingman asked for the names of those workers who
wanted severance pay and the amounts desired. DeAngelis
lowered the amount of money claimed for severance pay so that
if all the workers accepted severance, the sum would be about
$500,000. Kingman said that he could offer $120,000 and
asked for the number of workers who would be working for
PBS, but the Union did not supply that number.
On August 1, the Respondent laid off 67 unit employees and
subcontracted their work to PBS. Of those laid off, four accept-
ed positions with PBS.
Analysis and Discussion
The complaint alleges that the Respondent violated Section
8(a)(1) and (5) of the Act in three respects. First, since about
May 11, 2011, the Respondent refused to furnish the Union
with certain information it had requested. Second, that since
about July 27, 2011, it failed and refused to bargain with the
Union for a new contract, and finally, that on about August 1,
2011, the Respondent subcontracted the work of unit employ-
ees and laid off all the unit employees except the maintenance
employees, without affording the Union an opportunity to bar-
gain with Respondent with respect to this conduct and the ef-
fects of this conduct. The complaint’s proposed remedy is that
an order be issued requiring the Respondent to restore its busi-
ness operations as they existed before bargaining unit work was
subcontracted on about August 1, 2011.
GALAXY TOWERS CONDOMINIUM ASSN. 375
I. THE ALLEGED REFUSAL TO FURNISH INFORMATION
The complaint alleges that since about May 11, 2011, the
Respondent refused to furnish the Union with the following
information that it had requested:

1. Please provide the Request for Proposals (or Requests, if
more than one) said to have been sent out by Galaxy
concerning outsourcing of bargaining unit work and su-
pervisory/management work related to such bargaining
unit work that may be outsourced along with it.

2. Please provide the bids or offers or proposals said to
have been received from five entities for performance of
such work on an outsourced basis.

The law relating to an employer’s response to a union’s in-
formation request is well settled. An employer has the statutory
obligation to provide, on request, relevant information that the
union needs for the proper performance of its duties as collec-
tive-bargaining representative. NLRB v. Truitt Mfg. Co., 351
U.S. 149, 152–153 (1956). Where the union’s request is for
information pertaining to employees in the bargaining unit, that
information is presumptively relevant and the respondent must
provide the information. However, where the information re-
quested by the union is not presumptively relevant to the un-
ion’s performance as bargaining representative, the burden is
on the union to demonstrate the relevance. Richmond Health
Care, 332 NLRB 1304, 1305 fn. 1 (2000). A union has satisfied
its burden when it demonstrates a reasonable belief, supported
by objective evidence, that the requested information is rele-
vant. Knappton Maritime Corp., 292 NLRB 236, 238–239
(1988).
The Board uses a broad, discovery-type standard in deter-
mining the relevance of requested information. Potential or
probable relevance is sufficient to give rise to an=employer’s
obligation to provide information. Richmond Health Care,
above.
DeAngelis testified that he needed to know the pay rates and
the benefits for the new employees, and he wanted to see the
RFPs “because I never accepted at face value the contention
that they . . . can save a million dollars by . . . subcontracting.”
On June 28, Union Attorney Kern told Kingman that the Union
needed the requested information to “properly assess Galaxy’s
proposals and formulate its own proposals.”
In National Grid USA Service Co., 348 NLRB 1235, 1244–
1245 (2006), the union requested the request for proposal is-
sued by the employer to prospective subcontractors. The em-
ployer refused, and instead submitted a written summary of the
RFP. The Board held that the summary was insufficient and
that the union was “entitled to review the original documents
and not . . . be limited to summaries and Respondent’s repre-
sentations as to the documents’’ contents.”
In E. I. du Pont de Nemours & Co., 346 NLRB 553, 557–558
(2006), a case in which the employer decided to subcontract
part of its operations, the Board stated that “in order to assess
the accuracy of the Respondent’s claims, it was necessary for
the union to examine the data that formed the bases for the
Respondent’s conclusions” that, as here, the employer would
save $1 million per year by subcontracting. The Board held that
“by refusing to provide the information upon which it relied in
making the decision to subcontract, the Respondent prevented
the Union from effectively creating a counterproposal.”
The Respondent asserts, first, that it supplied all relevant in-
formation in its possession in response to any “legitimate re-
quests for information made by the Union.” Secondly, it argues
that the requests were part of a “contrived, sham bargaining
process . . . .presented solely in connection with a scheme to
delay and frustrate the bargaining process.”
As to its first assertion, the Respondent concedes that it pro-
vided the “substantive portions” of the RFP to the Union, as set
forth above. However, it did not provide the RFP itself, which
is what was requested. In addition, the Respondent concedes
that it did not provide the bids from the five prospective con-
tractors who submitted bids for the work. The law is clear that
the original document is what is required, not the Respondent’s
view of what the document contains.
The Respondent argues that the bids were not relevant be-
cause two of them were rejected by the Respondent because
they were submitted by nonunion companies. Further, the Re-
spondent submits that in May 2011, it was only considering
entering into an agreement with one of the three remaining
vendors, thereby rendering the other two bids irrelevant. It then
refused to supply the bid of the winning vendor, PBS, because
the original bid was subject to negotiation and would change
and it, and the other bids were provided pursuant to confidenti-
ality agreements.
In A-1 Door & Building Solutions, 356 NLRB 51, 53 (2011),
the union requested information concerning bidding on jobs.
The Respondent refused to supply the information because the
information was confidential. The Board stated that “in consid-
ering union requests for relevant but assertedly confidential
information, the Board balances the union’s need for the infor-
mation against any ‘legitimate and substantial’ confidentiality
interests established by the employer. Detroit Edison Co. v.
NLRB, 440 U.S. 301 (1979). The party asserting confidentiality
has the burden of proving that such interests exist and that they
outweigh its bargaining partner’s need for the information.
Jacksonville Area Assn. For Retarded Citizens, 316 NLRB 338,
340 (1995). Further, a party refusing to supply information on
confidentiality grounds has a duty to seek an accommodation.
Pennsylvania Power Co., 301 NLRB 1104 1105 (1991).
There was no evidence of any confidentiality agreement that
was entered into between the bidders and the Respondent, or
that the Respondent attempted to seek an accommodation with
the Union regarding the allegedly confidential bids. Similarly,
there is no evidence that the Union sought to delay or frustrate
negotiations by making the requests. Rather, the evidence es-
tablishes that on the day that the Respondent presented its Pow-
erPoint presentation in which it asserted that it could save $1
million per year by subcontracting, the Union asked for the
RFP and the bids made pursuant to the RFP. It is clear that the
documents are relevant inasmuch as the Union sought to deter-
mine how $1 million could be saved. By examining what ser-
vices were sought by the Respondent in the RFP, and how
much the bidders were offering to provide those services for,
the Union would be able to intelligently prepare a counteroffer.
In addition, the Respondent repeatedly asked the Union to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 376
make a proposal which would save an equal amount of money.
Clearly, in order to do so, the Union must have the RFP which
set forth what services were required. The bids, too, would
enable the Union to prepare an alternate proposal since it would
become aware of what the competitive bidders were willing to
receive as compensation.
Accordingly, I find that the information requested was rele-
vant to the Union’s ability to make a counterproposal and to
learn precisely what the Respondent’s proposal to the bidders
was. I further find that the Respondent violated Section 8(a)(1)
and (5) of the Act by failing an refusing to furnish the RFP(s)
and the bids submitted by prospective subcontractors, as re-
quested by the Union in its May 11 letter.
II. THE ALLEGED REFUSAL TO BARGAIN FOR A
NEW CONTRACT
The complaint alleges that since about July 27, 2011, the Re-
spondent failed and refused to bargain with the Union for a new
contract. The Respondent alleges that the parties were at an
impasse on July 27 and that it had lawfully implemented its
last, best, and final offer.
“The essential question is whether there has been movement
sufficient ‘to open a ray of hope with a real potentiality for
agreement if explored in good faith in bargaining sessions.’”
Hayward Dodge, 292 NLRB 434, 468 (1989). I find that such
ray of hope presented itself at the last bargaining session.
I credit DeAngelis’ testimony that, at the bargaining session
of June 30, he told Kingman that he wants to negotiate a con-
tract—he still wanted to have a collective-bargaining agree-
ment, a full agreement, and he would discuss which employees
would accept a voluntary severance and how that impacted
them. DeAngelis repeated that he wanted a 3-year contract and
a wage increase, referring to the March 16 proposal.
Accordingly, the Union was still willing to negotiate. It was,
at that time, exploring ways in which different types of sever-
ance packages for the current employees would cause the Re-
spondent to abandon its interest in subcontracting. Therefore,
there was a willingness and movement by the Union toward
reaching agreement. In addition, the Respondent added a provi-
sion related to bumping rights in its proposal for subcontract-
ing.
The Board, in Taft Broadcasting Co., 163 NLRB 475, 478
(1967), set forth a number of factors for determining whether
impasse has been reached:

Whether a bargaining impasse exists is a matter of judgment.
The bargaining history, the good faith of the parties in negoti-
ations, the length of the negotiations, the importance of the is-
sue or issues as to which there is disagreement, the contempo-
raneous understanding of the parties as to the state of negotia-
tions are all relevant factors to be considered in deciding
whether an impasse in bargaining existed.

I accordingly find and conclude that no impasse existed at
the time the parties ceased bargaining.
Even assuming that a valid impasse in bargaining existed,
the Board has held that an employer’s failure and refusal to
provide requested information to the union precludes a finding
that a valid impasse has taken place. Caldwell Mfg. Co., 346
NLRB 1159, 1160, 1170 (2006).
Inasmuch as I have found, above, that the Respondent did
not furnish the relevant information requested by the Union,
and to which it was entitled, the Respondent prematurely de-
clared impasse, and unilaterally implemented its last best offer.
Accordingly, no valid impasse existed because of the Respond-
ent’s failure to provide the requested information to the Union.
In addition, a lawful impasse cannot be declared where per-
missive subjects of bargaining are demanded. Here, during the
course of the bargaining, and at the last bargaining session on
June 30, the Respondent insisted that the Union withdraw its
ERISA lawsuit pending in Federal court. “The Board has re-
peatedly held that an employer may not condition bargaining on
the withdrawal of unfair labor practice charges or other litiga-
tion.” WWOR-TV, Inc., 330 NLRB 1265, 1265 (2000).
Accordingly it must be found that the Respondent failed and
refused to bargain with the Union over the terms of a new con-
tract from July 27, 2011, unlawfully declared that impasse had
taken place, and unlawfully implemented the terms of its last,
best, and final offer.
III. THE ALLEGED UNLAWFUL SUBCONTRACTING
The complaint alleges that on about August 1, 2011, the Re-
spondent subcontracted the work of unit employees and laid off
all the unit employees except the maintenance employees,
without affording the Union an opportunity to bargain with
Respondent with respect to this conduct and the effects of this
conduct.
A brief review of the relevant facts will be helpful. The Re-
spondent’s August 8, 2006 proposal provided for a manage-
ment-rights clause with a broad subcontracting clause giving
the Employer the sole and exclusive right to subcontract any
work. One week later, Union Attorney Sabatella expressly ac-
cepted the management-rights clause “as drafted.” Several draft
proposals sent by Ploscowe to Sabatella contained the same
clause. The proposed contract, with that clause, was sent to
DeAngelis also.
On December 6, the employees ratified a “final offer” on
economic terms which also included the statement that “con-
tract language” agreed upon would include the items “as agreed
upon to date” Following the ratification, an MOA was signed
by both parties in early January 2007. It states that the parties
agree to the terms of a new agreement which was ratified by the
employees. It covers certain economic items and the phrase
used earlier, “contract language: as agreed upon to date”
Thereafter, Union Attorney Goldblatt advised Ploscowe that
there were only four open items—none of them involved the
issue of subcontracting. It was only when Shepherd became the
Union’s representative that, in August 2007, she asserted that
the Union did not agree to the subcontracting clause.
At that point, the MOA had been signed. It represented the
parties’ agreement up to that time. I agree with the General
Counsel that it was a partial agreement, covering mostly eco-
nomic items, but it was a binding agreement nevertheless. Two
union attorneys, Sabatella and Goldblatt, agreed that the Re-
spondent had the right to the broad subcontracting clause in the
GALAXY TOWERS CONDOMINIUM ASSN. 377
parties’ agreement. The fact that the MOA covered only eco-
nomic matters is of no moment.
In addition to accepting the subcontracting clause without
change, Sabatella also accepted, without change, other terms in
the Employer’s proposal including vacations, force reduction,
seniority, part of the grievance procedure and part of the mis-
cellaneous working conditions proposal.
Further, Goldblatt could only identify four items that “the
Union has advised me that they would like to address” for ne-
gotiation, none of which concerned subcontracting.
Indeed, the Settlement Agreement entered into by the Union
gives support to a finding that the Union unlawfully withdrew
from this tentative agreement on subcontracting. In the Agree-
ment, the Union agrees to rescind its withdrawal from tentative
agreements reached, including subcontracting, specifically
referring to the clause at issue: article 13, sections 2a and b.
Given these facts, I cannot credit the Union’s insistence at
trial that it never agreed to the subcontracting clause. It is in-
conceivable that it was not aware of the existence of the—
Sabatella gave a detailed two-page response to the Employer’s
proposal. Goldblatt’s response stated that his client advised him
that it had only four areas of concern. No issue was raised that
these two attorneys lacked authority to engage in negotiations
with the Respondent in behalf of the Union, or to bind the Un-
ion with respect to agreements they reached with the Employer.
I accordingly cannot credit the testimony of the Union’s wit-
nesses that, prior to Shepherd’s involvement in the negotia-
tions, they voiced any objection to the subcontracting clause or
refused to agree to it. The undisputed documentary evidence
does not support such testimony.
The important point is that the MOA represents a written,
binding agreement between the parties. It is true, as argued by
the General Counsel, that, as set forth above, certain items
marked “ok” in the November 2006 proposed contract were
changed thereafter in the March 2007 proposed contract, there-
by indicating that those terms could not be and were not indis-
putably incorporated by reference in the MOA since the MOA
was signed in January 2007, before the March 2007 proposed
contract was sent to the Union.
However, that does not change the fact that the MOA was
signed with the agreement of the parties that whatever items
were agreed to there were binding on them. Indeed, Ploscowe
testified that those changes were made because he continued to
bargain with the Union about those items Shepherd wanted
changed—“she pointed out a number of things she thought was
confusing. That doesn’t mean there wasn’t an agreement. She
asked to have clarification on those . . . . We went back to the
bargaining table to deal with the items that she listed, because
we were trying desperately to have the Union sign off on an
agreement. That doesn’t mean that we didn’t necessarily agree
that the language as given wasn’t agreed to.”
Ploscowe also noted that occasionally, depending on the cir-
cumstances, a party might seek to renegotiate an agreed upon
item. For example, thereafter, in 2007 through 2011, further
bargaining took place. This does not detract from the fact that
the Union agreed to subcontracting. Bargaining here continued
to explore what ways the subcontracting might be undertaken.
The Respondent asserts that its subcontracting of unit work
was lawful inasmuch as the Union agreed to it, referring to
Attorney Sabatella’s “accepted as drafted” response to the Re-
spondent’s August 8 proposal for a management-rights clause
which included the right to “subcontract any work.”
From that agreement by Sabatella, and later draft agreements
which contained that subcontracting language, the Respondent
argues that its final offer containing the language “Contract
Language: As agreed upon to date and/or as to be resolved by
the parties during final drafting as to any open items” means
that, inasmuch as the subcontracting language had been “agreed
upon to date” the Union must be held to such language as its
agreement to subcontracting.
The Union argues that the employees’ ratification of the final
offer was simply an offer on economic terms. When the MOA
was drafted upon the ratification, it again contained the disput-
ed language that “contract language: As agreed upon to date,
and/or as to be resolved by the parties during final drafting as to
any open items.”
In this regard, the Union insists that the only items ratified
were the MOA’s economic terms, and that no management-
rights clause was ratified. The Union is technically correct. The
MOA does not contain a specific reference to the Employer’s
right to subcontract. In fact, the MOA itself does not contain
any reference to subcontracting.
In contrast, the Employer contends that the MOA “incorpo-
rated by reference the Union’s tentative agreement to ‘accept as
drafted’ the [Respondent’s] management rights proposal”
which permits it to “subcontract any work.”
Following the ratification by the employees, a Memorandum
of Agreement (MOA), prepared by Ploscowe, was signed in
early January 2007. It states that the Employer and the Union
“hereby agree to the following terms of a new agreement which
was ratified by the Local 124 members.” It covers the term of
the agreement, from June 1, 2006, to May 31, 2009, and listed
the wage increase amounts, medical coverage amounts, paid
time off days, vacations, retirement program, and a new hire
rate.
In this connection, the General Counsel argues that these
were only specific economic items that the Union was most
interested in agreeing to—a partial agreement on economic
terms which most affected the employees. According to the
General Counsel, this was not the full agreement which would
govern the parties’ future relationship, but rather an expedient
method to give the employees those terms in which they were
most interested.
As to those items, the wage increase, medical coverage, paid
time off, vacations, retirement program, and a new hire rate,
DeAngelis stated that the parties “specifically agreed to them,”
but that “everything else in the article or in the contract was
open.” He added that “there may have been some tentative
agreements which I came to know, but they were all tentative
subject to a final agreement and ratification . . . . It didn’t both-
er me about any of that language, because I knew at some point
we were going to sit down and bargain a contract. We just
wanted to expedite the economics.”
Ploscowe’s understanding differs from that of DeAngelis.
Ploscowe testified that he believed that all tentative agreements
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 378
reached prior to that time had been incorporated into the MOA,
but that there were still some open items that the parties would
continue to negotiate.
The General Counsel asserts that the MOA did not contain a
waiver of the Union’s right to bargain over subcontracting.
That is correct, but the Respondent’s argument is not that the
Union waived its right to subcontract. The Respondent’s posi-
tion is that the Union specifically agreed that the Employer had
that right in Sabatella’s specific agreement to the subcontract-
ing clause. I agree with the Respondent’s position.
It must be noted that certain clauses in the proposed contract
of November 2006, marked by Ploscowe “ok” with the date of
agreement were thereafter changed in the March 2007 proposed
agreement, as set forth above. Accordingly, the General Coun-
sel argues that if those accepted proposals could be changed
they are, in fact, tentative and not binding. From that, he con-
tends that the subcontracting clause must also be considered
nonbinding because it was subject to change in the March 2007
agreement. He therefore argues that by picking and choosing
which proposals it sought to amend, the Respondent decided
for itself which were binding on the Union.
The General Counsel supports his position by pointing to
Ploscowe’s testimony. When asked by the General Counsel
whether items which had been specifically agreed upon are
“still open in the sense that they’re still subject to negotiations”
he remarked that they are “absolutely not” still subject to nego-
tiations. He added that items which he marked as “okay” meant
that item “equaled language agreed upon on the dates noted.”
Of course this raises the question that if these proposals were
changed, how can the Respondent insist that the subcontracting
clause remained. The answer to the General Counsel’s argu-
ment is that the Union indisputably agreed to the subcontracting
clause and ratified that agreement in the MOA.
It is true that during the course of bargaining, which con-
sumed 5 years, there were discussions after the MOA was en-
tered into, in which the Respondent offered certain concessions
to the Union if it would waive its right to bargain over subcon-
tracting decisions. The General Counsel argues from this that
no agreement had been reached that subcontracting had been
agreed to. I do not agree. In an attempt to reach a contract, the
Respondent could properly bargain with the Union offering an
incentive to the Union. That does not change the fact that the
subcontracting clause was agreed to, as set forth above.
A waiver of statutory bargaining rights must be “clear and
unmistakable.” Metropolitan Edison Co. v. NLRB, 460 U.S.
693, 708 (1983). The Board, in applying this test, has held that,
before a waiver can be found: a contract clause must specifical-
ly include the subject at issue; bargaining history must show
that the matter was fully discussed during negotiations; and the
Union consciously yielded its interest in the subject. Johnson-
Bateman Co., 295 NLRB 180, 184–188 (1989).
I find that all these conditions have been met. First, the sub-
contracting clause specifically included the subject of subcon-
tracting and provided for the broad reservation of the Employ-
er’s right to subcontract any work. As to matter being fully
discussed during negotiations, I find that Sabatella’s agreement
to the subcontracting clause, DeAngelis’ being sent a copy of
the proposed contract in November 2006 and making no objec-
tion to the disputed clause, Goldblatt’s citing of only four ob-
jections to the contract, none of which were the subcontracting
clause, establishes that, at that time, the matter was fully dis-
cussed during negotiations. Finally, by the Union’s actions set
forth above, I also find that it consciously yielded its interest in
the subject.
The Board found in Allison Corp., 330 NLRB 1363, 1365
(2000), that a management-rights clause, similar to the instant
clause, “specifically, precisely, and plainly grants the Respond-
ent the right ‘to subcontract’ without restriction. We therefore
find a ‘clear and unmistakable waiver’ by the Union of its statu-
tory right to bargain regarding the Respondent’s decision to
subcontract.”
I therefore find and conclude, as the Board did in Allison
Corp., that the Respondent did not violate Section 8(a)(1) and
(5) of the Act by unilaterally subcontracting unit work.
IV. EFFECTS BARGAINING
The complaint alleges that the Respondent subcontracted the
work of unit employees and laid off all the unit employees ex-
cept the maintenance employees, without affording the Union
an opportunity to bargain with Respondent with respect to the
effects of this conduct.
“While a contract clause may constitute a waiver of a bar-
gaining right, it does not automatically follow that the same
contract clause waives a party’s right to bargain over the effects
of the matter in issue. An employer has an obligation to give a
union notice and an opportunity to bargain about the effects on
unit employees of a managerial decision even if it has no obli-
gation to bargain about the decision itself.” “Allison Corp.,
above at 1365.
The Respondent has a “duty to give pre-implementation no-
tice to the union” to allow for meaningful effects bargaining.”
Willamette Tug & Barge Co., 300 NLRB 282, 283 (1990). Los
Angeles Soap Co., 300 NLRB 289, 289 fn. 1 (1990).
The evidence establishes that the parties engaged in effects
bargaining. Prior to the implementation of subcontracting, there
was substantial bargaining over the possibility that unit em-
ployees be hired by PBS at certain wage and benefit levels that
it would find acceptable. The parties also bargained about vol-
untary severance for the existing unit employees with the Union
offering varying levels of severance payments.
I accordingly find and conclude that the Respondent has sat-
isfied its obligation to bargain with the Union over the effects
of its decision to subcontract the work of certain of the unit
employees.
CONCLUSIONS OF LAW
1. The Respondent, Galaxy Towers Condominium Associa-
tion, is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. The Union, Local 124, Recycling, Airport, Industrial &
Service Employees Union, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The unit described above is a unit appropriate for the pur-
poses of collective bargaining.
4. By failing and refusing to furnish the Union with the in-
formation it requested in its letter of May 11, 2011, which in-
GALAXY TOWERS CONDOMINIUM ASSN. 379
formation is necessary and relevant to the Union’s performance
of its duties as the exclusive collective-bargaining representa-
tive of the unit employees, the Respondent has violated Section
8(a)(1) and (5) of the Act.
5. By failing and refusing to bargain with the Union for a
new contract, by insisting to impasse upon a matter that does
not constitute a mandatory subject of bargaining under Section
8(d) of the Act, the Respondent has violated Section 8(a)(1) and
(5) of the Act.
6. By implementing terms and conditions of employment
upon its employees when a valid impasse has not been reached,
the Respondent has violated Section 8(a)(1) and (5) of the Act.
REMEDY
Having found that the Respondent 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 effectu-
ate the policies of the Act.
Inasmuch as the Respondent has failed and refused to pro-
vide the Union with requested information to which it was enti-
tled, the Respondent shall be ordered to provide the Union with
such information.
Inasmuch as the Respondent unlawfully failed and refused to
bargain with the Union for a new contract by unlawfully declar-
ing that impasse had taken place and unlawfully implementing
the terms of its last best and final offer, the Respondent shall be
ordered to bargain with the Union, and, if an understanding is
reached, to embody the understanding in a signed agreement.
The Respondent shall also be ordered to rescind any changes
to the terms and conditions of employment of its employees not
affected by its lawful decision to subcontract certain unit work.
I shall also order the Respondent to make whole those employ-
ees not affected by its lawful decision to subcontract unit work,
for any loss of earnings and other benefits they may have suf-
fered as a result of the Respondent’s unlawful actions, in the
manner set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987), plus daily compound interest as prescribed in Kentucky
River Medical Center, 356 NLRB No. 8 (2010).
In addition, I shall order the Respondent to make all contrac-
tually-required contributions to the benefit funds that it failed to
make, if any, including any additional amounts due the funds
on behalf of those employees not affected by its lawful decision
to subcontract unit work in accordance with Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Further, the
Respondent shall reimburse such employees for any expenses
ensuing from its failure to make any required contributions, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891, 891 fn.
2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such
amounts to be computed in the manner set forth in Ogle Protec-
tion Service, supra, with interest as prescribed in New Horizons
for the Retarded, supra, and Kentucky River Medical Center,
above.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Galaxy Towers Condominium Association,
Guttenberg, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Failing and refusing to furnish the Union with infor-
mation it requests which is necessary and relevant to the Union
in the performance of its duties as the exclusive collective-
bargaining representative of the employees in the appropriate
unit.
(b) Failing and refusing to bargain with the Union for a new
contract.
(c) Insisting to impasse upon a matter that does not constitute
a mandatory subject of bargaining under Section 8(d) of the
Act.
(d) Implementing terms and conditions of employment when
a valid impasse has not been reached.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Furnish the Union with the information it requested in its
letter of May 11, 2011.
(b) On request, bargain with the Union for a new contract,
and, if an understanding is reached, embody the understanding
in a signed agreement.
(c) Upon request from the Union, rescind the unilateral
changes to the terms and conditions of employment of the em-
ployees not affected by its lawful decision to subcontract cer-
tain unit work until such time as the parties have bargained in
good faith to an agreement or impasse on the terms and condi-
tions of employment of such employees.
(d) Make the employees who are not affected by its lawful
decision to subcontract certain unit work, whole for any loss of
earnings and other benefits they may have suffered as a result
of the Respondent’s unlawful actions, with interest, as set forth
in the remedy section of this decision.
(e) Make all contractually-required benefit fund contribu-
tions, if any, that have not been made to the fringe benefit funds
on behalf of the employees who are not affected by its lawful
decision to subcontract certain unit work, and reimburse those
employees for any expenses ensuing from its failure to make
the required payments, with interest, as set forth in the remedy
section of this decision.
2 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 objections to them shall be deemed waived for all pur-
poses.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 380
(f) Within 14 days after service by the Region, post at its fa-
cility in Guttenberg, New Jersey, copies of the attached notice
marked “Appendix.”3 Copies of the notice, on forms provided
by the Regional Director for Region 22, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since May 11,
2011.
(g) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.