Masonic Temple Association of Detroit and 450 Temple, Inc., a Single Employer

National Labor Relations Board - Administrative Judge Opinions

Jun 6, 2016

07-CA-144521 (N.L.R.B. Jun. 6, 2016)

JD–46–16
Detroit, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
WASHINGTON, DC
MASONIC TEMPLE ASSOCIATION OF
DETROIT AND 450 TEMPLE, INC.,
A SINGLE EMPLOYER
Respondent
and Case 07–CA–144521
LOCAL 324, INTERNATIONAL UNION OF
OPERATING ENGINEERS (IUOE), AFL–CIO
Charging Party.
Scott Preston, Esq.,
for the General Counsel.
Eric I. Frankie, Esq.,
of Detroit, Michigan
for the Respondent.
Amy Bachelder, Esq.,
of Detroit, Michigan
for the Charging Party.
DECISION
STATEMENT OF THE CASE
CHRISTINE E. DIBBLE, Administrative Law Judge. This case was tried in Detroit,
Michigan on November 10, 2015. The original charge in this case was filed by Local 324,
International Union of Operating Engineers (IOUE), AFL–CIO (the Union/Charging Party) on
January 16, 2015. The Charging Party filed amendments to the charge on August 17, and
September 9, 2015. On September 14, 2015, the National Labor Relations Board (NLRB/the
Board) Region 7 issued the complaint. The complaint alleges that Masonic Temple Association
of Detroit (Respondent MTA) and 450 Temple, Inc. (Respondent 450), is a single employer
within the meaning of the National Labor Relations Act (NLRA/the Act), and since about
January 13, 2015, has failed and refused to bargain with the Union as the exclusive collective-
bargaining representative of the unit in violation of the Section 8(a)(1) and (5) of the Act.
JD–46–16
2
After the trial, the General Counsel, Respondent MTA and Respondent 450 filed briefs,
which I have read and considered.1 Based on those briefs and the entire record, including the
testimony of the witnesses and my observation of their demeanor, I make the following5
FINDINGS OF FACT
I. JURISDICTION
10
Respondent MTA and Respondent 450 are corporations with an office and facility
located at 500 Temple Avenue in Detroit, Michigan. They have been engaged in the business of
operating a theater, a special events venue, and providing banquet facilities for various functions.
The complaint alleges as follows:
15
At all material times, Respondents have been affiliated business
enterprises with common officers, ownership, directors, management, and
supervision; have formulated and administered a common labor policy; have
shared common premises and facilities; have provided services for and made sales
to each other; have interchanged personnel with each other; have interrelated 20
operations with common purchasing and sales, and events scheduling; and have
held themselves out to the public as a single integrated business enterprise.
(GC Exh. 1(j)) Respondents filed a joint answer denying that they are a single-integrated
business enterprise and a single employer within the meaning of the Act. However, Respondents 25
presented no evidence at the trial, nor made an argument in its posthearing brief to support a
finding that they are not a single-integrated business enterprise and a single employer within the
meaning of the Act. The evidence is undisputed that Respondent 450 was established as the
“business arm of the Temple.” (GC Exh. 8; Tr. 101.) Since the mid to late 1990s the officers of
Respondent MTA have been elected to also serve as officers of Respondent 450. (Tr. 99; GC 30
Exh. 7.) Trustees of Respondent MTA can make motions and vote on decisions affecting
Respondent 450. Moreover, Respondent MTA has 100 percent ownership of Respondent 450.
They also operate out of the same office. Consequently, I find that Respondent MTA and
Respondent 4502 are a single-integrated business enterprise and a single employer within the
meaning of the Act. Rogan Bros. Sanitation, 362 NLRB No. 61, slip op. at 4 (2015); Bolivar-35
Tees, Inc., 349 NLRB 720 (2007); Denart Coal Co., Inc., 315 NLRB 850, 851 (1994); Herbert
Industrial Insulation Corp., 319 NLRB 510, 524 (1995).

1 Administrative law judge exhibits are identified as “ALJ Exh.” General Counsel exhibits are
identified as “GC Exh.” Respondent exhibits are identified as “R. Exh.” Charging Party exhibits are
identified as “CP. Exh.” Joint exhibits are identified as “Jt. Exh.” The hearing transcript is identified as
“Tr.” The General Counsel, Respondents, and Charging Party posthearing briefs are identified as “GC
Br.”, “R Br.”, and “CP Br.”, respectively. Respondent MTA and Respondent 450 filed a joint post-
hearing brief.
2 Since I have found that Respondent MTA and Respondent 450 are a single-integrated business
enterprise and a single-employer, I will refer to them as “Respondents” except where a clear distinction is
required.
JD–46–16
3
During a representative 1-year period, Respondents derived gross revenues in excess of
$500,000 and purchased and collectively received, at its Detroit facility goods valued in excess
of $5,000 directly from points outside the state of Michigan. Accordingly, I find, as
Respondents admit, that it is an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.5
I also find, as Respondents admit, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES10
The Facts
Background
15
The backdrop for this dispute is the Masonic Temple (the Temple) building at 500
Temple Avenue in Detroit, Michigan. Although it is owned by Respondents, it has been
managed by different entities at various points in its existence. The Temple is a massive
approximately 500,000 square foot building with a 20 story tower that houses different lodge
rooms of fraternal organizations. The building also consists of a 4,000 seat theater, a ballroom, a20
drill hall, and at various times restaurants. The Temple is home to Masonic fraternities and is
also used to host public events (e.g., weddings, parties, concerts, live theater).
The Temple began as a financially viable entity. However, in about 2004, its financial
picture began to dim, in part, because of losses in rental income. The Shriners, who paid 25
approximately $25,000 in monthly rent, terminated its rental agreement with Respondent MTA
and relocated to Southfield, Michigan. The following year the Scottish Rite organization, which
also paid about $25,000 in monthly rent, moved its headquarters from the Temple to Dearborn,
Michigan. Sometime in 2010, the financial situation of the Temple (and by association
Respondents) further deteriorated. Respondents experienced difficulty paying utility bills, 30
property taxes, and payroll. At some point, Respondents was in arrears on payment to the
Union’s healthcare fund.3
Since about January 2008, Roger Sobran (Sobran) has been president of Respondents.
He is responsible for overseeing the daily operations of the Temple. Steven Genther (Genther) is 35
the Temple’s general manager. The record does not establish his dates of employment at the
Temple, except to show that he has been a supervisor since at least 2007. In 2013 and 2014,
Genther was also a trustee for Respondent 450. James Lloyd (Lloyd), a full-time bargaining unit
employee, began working as an engineer at the Temple in January 1989. He also served as the
union steward from 2007 until his resignation from his employment with Respondents on June 40
30, 2013. During his tenure at the Temple, Lloyd received successive promotions from engineer
to group leader, assistant chief engineer and finally chief engineer. When Lloyd resigned there

3 Although a majority of the bargaining unit members were not dues paying union members, the
Union’s healthcare fund was available to all bargaining unit members. In 2014, one union member and
approximately five nonunion members were receiving health coverage through the Union’s healthcare
fund.
JD–46–16
4
remained approximately seven bargaining unit engineers employed by Respondents. Paul Buono
(Buono) was also part of the engineering crew and a full-time bargaining unit member at the
Temple. Buono resigned his employment in about June 2014.4
In May 2010, James Arini (Arini) succeeded Tom Scott (Scott) as the union’s business 5
representative for its stationary division.5 Since December 2010, Arini has represented the
Temple’s bargaining unit employees. In his role as the business representative, Arini ensures
that bargaining unit members are represented by negotiating and monitoring the proper
enforcement of the collective-bargaining agreement (CBA). He has also served as the Union’s
treasurer for about the past 3 ½ years. 10
Since about 1968, Local 547 IUOE had represented bargaining unit employees working
at the Temple. However, in approximately 2007 or 2008, Local 547 merged and was subsumed
into Local 324 IUOE. Consequently, since at least 1968, maintenance engineers, boiler
operators, and operating engineers working at the Temple have been represented by the Union or 15
its predecessor. These employees have entered into CBAs with various Temple operators since
about 1968. Beginning in the early 1980s until 2007, the Nederlanders operated the Temple but
the unit employees worked for Respondent MTA. (Tr. 20.) The most recent CBA of record
between the Union and Respondent MTA was effective from August 1, 2003 through July 31,
2006. (GC Exh. 3.) The CBA recognized the unit as:20
[A]ll full-time and regular part-time maintenance engineers, maintenance helpers,
watchman and chief engineer employed by the Employer at its facility located at
500 Temple Avenue, Detroit, Michigan, but excluding housekeeping employees,
office clerical employees, temporary employees, guards, supervisors as defined in 25
the Act, and all other employees.
(GC Exh. 3.) The evidence also established that the city code required that commercial buildings
use licensed operators to work on their boiler and refrigeration equipment. Likewise, the CBAs
negotiated by the Union mandated that bargaining unit employees perform work on those units.6 30
Although the parties never agreed to another CBA after its expiration, Respondents continued to
remit dues to the Union that it received from its union employees. Respondents also continued
to make payments, albeit irregularly, to the Union’s healthcare fund.
From 2007 to 2010, Olympia Entertainment operated the Temple and employed the unit 35
employees. It entered into a CBA with the Union, which was effective from January 1, 2008
through December 31, 2009. (GC Exh. 2.) The Union and Olympia Entertainment agreed to a

4 James Arini and Sobran provided contradictory testimony on whether bargaining unit members
remained after Buono resigned. Sobran insisted that after Buono resigned, there were no other bargaining
unit members employed by Respondent. He bases this assertion on the fact that there were no other dues
paying union members after Buono resigned. (emphasis added) I find Sobran’s argument is without merit
for reasons discussed more fully in the analysis portion of this decision.
5 The stationary division is defined as, “[the] operating engineers that typically operate boilers,
refrigeration equipment, chillers, and maintain office buildings and other buildings throughout the state.”
(Tr. 56.)
6 Arini provided undisputed testimony about the city code requirement, and the mandate of the CBA
regarding boiler and refrigeration work.
JD–46–16
5
30-day extension of the CBA following its expiration. (GC Exh. 2.) The CBA essentially
maintained the same recognition clause as the most recent CBA between the Union and
Respondent MTA with only minor changes. It recognized the unit as:
[A]ll full-time and regular part-time employees in the classification of Chief 5
Engineer, Assistant Chief Engineer, General Maintenance Engineers I and II, and
Maintenance Helpers employed by the Employer at its facility located at 500
Temple Avenue, Detroit, Michigan, but excluding housekeeping employees,
office clerical employees, temporary employees, guards, watchmen, supervisors
as defined in the Act, and all other employees.10
(GC Exh. 2.) On or about December 1, 2010, Olympia Entertainment ended its relationship with
the Temple and terminated its employees. It is undisputed that after the expiration of the
contract extension between the Union and Olympia Entertainment, there were no other CBAs in
effect between the Union and other entities affiliated with the Temple. After Olympia 15
Entertainment left, its dues paying bargaining unit employees, Lloyd and Buono, and the
remaining six to eight non-dues paying bargaining unit employees became employees of
Respondent MTA. Respondent MTA resumed operations of the Temple with Olympia
Entertainment’s exit.
20
December 15, 2010, Union’s Formal Request to Bargain
In December 2010, Genther approached Lloyd and told him that Sobran said the
Respondent MTA was going to suspend or refuse to recognize the Union.7 Lloyd informed Scott
who responded that Respondent could not take that action. Lloyd relayed this information to 25
Genther who said that Sobran, as an agent of Respondent, had decided to eliminate the Union.
When Lloyd told Scott about the conversation he had with Genther, Scott stated that Sobran did
not have the authority to eliminate the Union. During the same timeframe, early December
2010, Arini introduced himself to Lloyd and Genther. He briefly talked with Genther about steps
the Union and Respondent MTA needed to take to negotiate an agreement. However, Arini did30
not get a response from Respondent MTA about starting bargaining sessions. Although Sobran
denied Arini made attempts to start contract negotiations, I do not find his denials credible. It is
undisputed that in December 2010, Arini told Genther that the Union wanted to start contract
negotiations with Sobran, Respondent’s agent. It is equally clear there is no evidence Sobran
responded to this request. Even assuming Genther did not relay this request to Sobran, it is 35
irrelevant to Respondent MTA’s obligation to bargain because the request was made to one of
Respondent’s admitted agents, Genther. I therefore find that Arini communicated to Respondent
MTA that the Union wanted to engage in negotiation of a new CBA but Sobran failed to
respond.
40

7 Sobran denied making the statement. However, I do not find Sobran’s denial credible. Sobran
provided shifting reasons for not engaging in contract negotiations. He also admitted that he felt contract
negotiations were pointless because the majority of unit employees were not dues paying union members.
It is therefore more plausible than not that he told Genther he intended to withdraw recognition of the
Union. Regardless, Arini’s testimony that Genther relayed this information to him is undisputed.
JD–46–16
6
Consequently, by letter dated December 15, 2010, Arini sent Sobran a written request to
bargain over a new CBA. The letter read:
Please consider this communication the formal request to the Masonic Temple
Association to meet and fulfill its obligation to bargain with the International 5
Union of Operating Engineers, Local 324 regarding wages, benefits, and working
conditions for all Operating Engineers employed at the Masonic Temple.
(CP Exh. 1.) As a result of Respondent MTA’s failure to respond to the request, in January
2011, the Union filed, with NLRB, an unfair labor practice charge against Respondent MTA for 10
refusing and failing to bargain in good faith with the Union. Subsequently, the parties entered
into a settlement agreement with Respondent MTA agreeing to “recognize the Union and bargain
in good faith as a successor employer” (GC Exh. 4.)8 Beginning in late January 2011 until May
2011, there were negotiation sessions between Respondent MTA and the Union that occurred
about once a month.9 Arini and Lloyd negotiated on behalf of the Union and Sobran and 15
Genther represented Respondent MTA at the bargaining sessions. The parties were unable to
reach an agreement; and there were no other bargaining sessions after May 2011.
After their last negotiation session in May 2011, the Union was informed that a new
unnamed entity would take over management of the Temple; and the Union should wait until the 20
changeover to negotiate a CBA with it. In the fall of 2011, the Detroit Masonic Temple Theater
Company (DMTTC) took over management of the Temple. The Union held one negotiation
session with DMTTC that occurred in January 2012. Again, Arini and Lloyd represented the
Union with Sobran representing Respondent MTA and Attorney Mike Smith representing
DMTTC. Within months of its takeover of the Temple’s operations, DMTTC became involved 25
in a dispute with Respondent MTA over lease payments. Consequently, the Union was
precluded from engaging in another bargaining session because of the dispute. In September
2012, Sobran met with employees to inform them that DMTTC would be leaving. On November
9, 2012, DMTTC and Respondent MTA ended their association. Shortly thereafter it was
decided that Respondent 450 would become the for-profit business arm of the Temple and take 30
over its management. Respondent MTA was organized as the nonprofit side of the Temple.
There is no evidence that employees were notified by Respondent MTA that Respondent 450
was taking over management of the Temple.10

8 Sobran testified that he did not understand he was signing an agreement to bargain in good faith
with the Union. I find his denial is nonsensical because the agreement clearly states that Respondent
MTA agrees to “recognize the Union and bargain in good faith…” (GC Exh. 4) The phrase leaves no
room for misinterpretation.
9 Sobran denied that their meetings were bargaining sessions. He testified that the parties met twice
in early 2011 to discuss nonunion employees’ healthcare coverage. However, I do not find him credible
on this point. Sobran admitted the meetings were held to discuss the settlement agreement that
specifically mandated Respondent MTA engage in bargaining sessions. Regardless, this point is relatively
insignificant to the complaint at issue.
10 Lloyd provided undisputed testimony that he did not notice Respondent 450 was managing the
Temple until about June 2012, when his checks started being issued by it. After the changeover, the
terms and conditions of his employment (and presumably that of the other employees) remained
unchanged, including work equipment, work rules, work policies, and suppliers. Genther, who was
Lloyd’s direct supervisor under Olympia Entertainment’s management and Respondent MTA, continued
JD–46–16
7
Attempts to Engage in Collective Bargaining from 2012 to January 2015
From late 2012 to January 13, 2015, Arini made multiple attempts to restart contract talks 5
between the Union and Respondents. During this period, he would visit the Temple monthly and
frequently telephone the office in an effort to get Sobran to respond to his queries about
scheduling bargaining sessions. He would leave messages for Sobran with the receptionist and,
or Genther who both assured him that they would give Sobran the messages. While admitting
that he had not been very aggressive in his attempts because of the Temple’s precarious financial 10
situation, nevertheless, in October 2014, Arini increased his efforts to get a CBA in place
because the Union’s last dues paying member, Buono, had resigned in June 2014; and the
Respondents were demanding that the Union refund the medical/insurance payments made by
them on behalf of Buono. From October 2014, through January 2015, Arini spoke primarily
with Genther about Respondents’ arrears to the Union’s healthcare fund but would always end 15
the conversation by reminding Genther that he needed to speak with Sobran about starting
contract talks. During several of these discussions, Arini informed Genther that if a contract was
not negotiated soon, the Union’s trustees were going to discontinue extending healthcare
coverage to nonunion employees. Genther would always assure him that he would relay the
message to Sobran.20
January 13, 2015 Attempts to Start Collective-Bargaining Sessions
On January 13, 2015, Arini was finally able to speak with Sobran on the telephone about 25
starting negotiation sessions. At some point in the discussion, Arini told Sobran that the Union’s
trustees would no longer fund healthcare for nonunion employees if a CBA was not negotiated.
Arini also informed Sobran that the Union would file an unfair labor practice charge with the
NLRB unless he agreed to negotiate. Sobran refused by telling Arini that Respondents would
never again be a union employer because Michigan was now a right-to-work state.11 Following 30
the conversation, Arini filed the charge at issue with NLRB alleging that Respondents, as a
single employer, failed and refused to bargain in good faith. Arini has not contacted
Respondents since their failed discussion on January 13, 2015.
35
Discussion and Analysis
The 8(a)(1) and (5) Violation – Failure to Bargain in Good Faith
Section 8(a)(1) of the Act reads that it is an unfair labor practice for an employer “to 40
interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”

as his direct supervisor.
11 Sobran denied making this comment and disagreed with Arini’s version of the discussion. I do not
find Sobran credible on this point. During his testimony, Sobran admitted several times that he
understood Arini was trying to get him to negotiate a CBA by threatening to file a charge against
Respondents for refusing to bargain. (Tr. 121, 124 & 133–134.)
JD–46–16
8
Section 8(a)(5) prohibits an employer from refusing to “bargain collectively” with its employees’
representatives. The good-faith standard is used by the courts and the Board to determine if the
parties have met their obligation to bargain under the Act. The Board takes a case-by-case
approach in assessing whether parties have met, conferred, and negotiated in good faith. National
Licorice Co. v. NLRB, 309 U.S. 350 (1940) (the Court adopted the “good faith” standard for an 5
employer’s conduct); St. George Warehouse, Inc., 349 NLRB 870 (2007) (the Board reviews the
totality of the employer’s conduct in deciding if the employer has satisfied its obligation to
confer in good faith).
Respondents deny violating the Act by arguing that 1) the unfair labor practice charge at 10
issue is untimely; 2) the Union never made a valid demand to bargain; and 3) the Union is not
the exclusive representative of a majority of Respondents employees in an appropriate
bargaining unit. The General Counsel contends, however, that Respondents’ reasons for refusing
to bargain with the Union are invalid. According to the General Counsel, the law does not
support the premise that expiration of a CBA relieves the employer from engaging in good-faith 15
bargaining if requested by a union. The General Counsel also argues that the evidence is clear
the Union made several demands to bargain; and Respondents’ argument that it can withdraw
union recognition because the remaining employees are nonunion is contrary to Board law. Last,
the General Counsel contends that Sobran admitted that the Union presented him with a request
to bargain on January 13, 2015, thus making the complaint timely.20
Complaint is timely under Section 10(b) of the Act
Respondents contend that the unfair labor practice charge at issue was filed outside of the 25
6-month limitation period set forth in Section 10(b) of the Act. Specifically, Respondents argue
that the Union was aware as early as December 2010 that “Sobran and Respondents were,
allegedly, refusing to bargain in good faith.” (R Br. 6.) Respondents points to Lloyd’s and
Arini’s actions noting Lloyd admitted that he learned in December 2010 that Sobran did not want
to bargain with the Union and “Sobran did not change his position on this issue from December, 30
2010, until June 30, 2013.” Id. Respondents also note Arini telephoned Sobran on January 13,
2015, because Arini believed that since the January 16, 2011 settlement agreement, Respondents
had not responded to the Union’s request to bargain or Arini’s monthly attempts to contact
Sobran to request bargaining. (R Br. 5.)
35
I find that Respondents’ argument is without merit. As previously noted, in December
2010, Lloyd learned that Sobran was threatening not to recognize the Union. The facts establish
that from December 2010 to 2013, Lloyd did not submit a written demand to bargain to Sobran
or Genther. Nonetheless, on December 15, 2010, the Union submitted a written request to
bargain to Respondent MTA; and filed an unfair labor practice charge with the NLRB when 40
Respondent MTA failed to respond to the demand. The parties entered into a settlement
agreement whereby Respondent MTA agreed to “bargain in good faith as a successor employer.”
(CP Exh. 1; GC Exh. 4) Consequently, it is irrelevant that Lloyd, as a union steward, did not
submit a demand to bargain because Arini, in his official capacity as the union’s business
representative, submitted a request to bargain soon after Lloyd learned of Respondents refusal to 45
recognize the Union, which ultimately led to Respondent MTA’s consent to bargain. I also find
that it was not unreasonable for the Union to assume after the January 2011 settlement agreement
JD–46–16
9
that Respondents would continue to recognize it as the exclusive representative for Respondents’
bargaining unit employees. Further, Respondents continued to remit union dues and make
healthcare contributions to the Union’s healthcare trust fund until at least May 2014.
Respondents also made payments for Lloyd’s and Buono’s health insurance until their
resignations in June 2013, and May 2014, respectively. Given these facts, I do not find that it is 5
plausible Respondents would have informed the Union prior to May 2014 that it was
withdrawing recognition and refusing to bargain with the Union.
The record also establishes that despite Arini’s repeated attempts to contact him, Sobran
would not respond to him until their telephone conversation on January 13, 2015. It was during 10
this conversation that Sobran told Arini that because there were no longer any union members
working for Respondents, he did not feel it necessary and would not bargain with the Union.
There is no evidence that between May 2014, and January 13, 2015, Respondents informed the
Union that it would not recognize it as the exclusive bargaining representative of an appropriate
bargaining unit, and would not bargain with the Union for a new CBA. It is clear, therefore, that 15
January 13, 2015, is when the Union was made aware of Respondents’ decision not to recognize
and/or bargain with it. The charge in this case was filed 3 days later, well within the 6-month
time period established in Section 10(b) of the Act.
Accordingly, I find that Respondents argument that the complaint at issue it untimely is 20
without merit.
Respondents failed to rebut the presumption of majority union support
25
It is presumed that an incumbent union retains its majority status. This presumption is
irrefutable during the term of a CBA that does not exceed 3 years. Trailmobile Trailer, LLC, 343
NLRB 95, 97–98 (2004); Auciello Iron Works, Inc. v. NLRB, 517 U.S. 781, 785–787, 116 S.Ct.
1754, 135 L.Ed.2d 64 (1996). If, however, a CBA has expired, the presumption that the
incumbent union has majority status is rebuttable. NLRB v. Curtin Matheson Scientific, 494 U.S. 30
775, 778 (1990); McDonald Partners, Inc. v. NLRB, 331 F.3d 1002, 1004 (D.C.Cir. 2003). The
Board has held, “an employer may rebut the continuing presumption of an incumbent union’s
majority status, and unilaterally withdraw recognition, only on a showing that the union has, in
fact, lost the support of a majority of the employees in the bargaining unit.” Levitz Furniture Co.,
333 NLRB 717, 725 (2001). see also Champion Home Builders Co., 350 NLRB 788, 791 (2007). 35
In the case at hand the CBA has expired. Consequently, there is a rebuttable presumption
that the Union retains its majority status. Respondents have the burden of proof on this point. I
find, however, that Respondents have failed to sustain its burden.
40
The only “evidence” Respondents present to support its argument that the Union lost its
majority status is Sobran’s testimony that after Buono resigned, none of the remaining workers
told him that they were currently or wanted to be union members. This argument was reiterated
in the posthearing brief filed by Respondents’ counsel. The posthearing brief reads in relevant
part,45
JD–46–16
10
Sobran testified, without contradiction, that no current employees of Respondents
have indicated that they are or wish to be Charging Party’s members. Arini
admitted that he had no idea of how many of Respondents’ employees could
possibly be in Charging Party’s claimed bargaining unit. Thus, Sobran was
correct in January, 2015, to tell Arini that there would be not (sic) purpose to 5
bargain because Charging Party had no members on site.
(R Br. 7.) Respondents’ argument is contrary to current Board law. In Anderson Lumber Co.12
the Board adopted the administrative law judge’s decision holding that bargaining unit
employees’ union membership status is not determinative of the employer’s obligation to 10
bargain. On appeal, to the United States Court of Appeals, District of Columbia Circuit noted
that the Levitz rule did not create a rule “requiring employees to expressly state that they no
longer want the union to represent them.”13 See also Crete Cold Storage, LLC, 354 NLRB 1000,
fn. 2 (2009) (determination of majority support turns on whether a majority of unit employees
wish to be represented by a particular union, not on whether a majority choose to become 15
members of the union).
The record is devoid of evidence showing that action was taken by the remaining
bargaining unit employees to express their lack of support for the incumbent Union.
Respondents failed, for example, to present a petition from the majority of remaining bargaining 20
unit employees seeking to decertify the Union; present statements from the majority of
remaining bargaining unit employees that they no longer wished to be represented by the Union;
or present other substantive evidence that the majority of the bargaining unit employees wanted
to withdraw their support of the incumbent Union. Since Levitz, the Board has consistently held
that evidence of a desire to withdraw from membership in the union is insufficient proof that the 25
Union has in fact lost the support of a majority of the unit. In Pacific Coast Supply the court
noted,
The Board has long maintained a distinction between an employee’s desire to be
represented by a union, and his or her desire to be a member of a union. Whether 30
a union has “majority support turns on whether most unit employees wish to have
union representation, not on whether most unit employees are members of a
particular union.””
Id. at 327 (quoting Trans-Lux Midwest Corp., 335 NLRB 230, 232 (2001). Respondents fail to 35
grasp this distinction.
Accordingly, I find that the evidence shows the Union has maintained its majority
support even after the expiration of the CBA, which Respondents failed to rebut.
40

12 360 NLRB No. 67 (2014).
13 Pacific Coast Supply, LLC v. NLRB, 801 F.3d 321, 331 (2015).
JD–46–16
11
The bargaining unit at issue is appropriate for collective bargaining
In its answer to the complaint, Respondents deny that the employees identified in
paragraph nine of the complaint constitute a unit appropriate for collective bargaining within the
meaning of Section 9(b) of the Act. Respondents, however, presented no argument or evidence 5
to support its position. The bargaining unit is the same unit that is contained in the 2006 CBA
with Respondent MTA and the 2008 CBA with Olympia Entertainment. (GC Exhs. 2, 3.) It is
also the same bargaining unit agreed upon by the parties in the January 2011 settlement
agreement recognizing the bargaining unit as,
10
All full-time and regular part-time employees in the classifications of Chief
Engineer, Assistant Chief Engineer, General Maintenance Engineers I and II, and
Maintenance Helpers employed by the Employer at its facility located at 500
Temple Avenue, Detroit, Michigan, but excluding housekeeping employees,
office clerical employees, temporary employees, guards, watchmen, supervisors 15
as defined in the Act, and all other employees.
(GC Exh. 4.) Lloyd provided undisputed testimony that there were approximately seven
bargaining unit engineers when he resigned in June 2013. Likewise, Sobran acknowledged that
there are about six to eight current employees (general building maintenance and a part-time 20
engineer) who fit within the description of the bargaining unit set forth in the January 2011
settlement agreement. Id. Moreover, Arini testified, without contradiction, that the city code
required licensed operators to work the Temple’s boiler and refrigeration equipment; and the
successive CBAs mandated that this work be performed by bargaining unit employees.
Respondents presented nothing to contradict these facts. 25
Based on the evidence, therefore, I find that the Union is the exclusive representative of
Respondents’ employees in an appropriate bargaining unit.
30
The Union made a valid demand to bargain which Respondents refused
Respondents contend that the complaint should be dismissed because the Union “did not
make any written demand to bargain to Respondents since the settlement agreement (General
Counsel’s Exhibit #4) was entered [into] January, 2011.” (R Br. 6.) I find however that the 35
evidence shows the Union made repeated requests to bargain with Respondents.
The counsel for the General Counsel rightly notes in his posthearing brief that during his
testimony Sobran admitted during their telephone conversation on January 13, 2015, Arini was
trying to get him to “negotiate” by threatening to file an unfair labor practice charge with the 40
NLRB. Sobran testified,
Well, I think the beginning of the call, I felt a little threatened that he was just
trying to threaten me into negotiating with him. My question to him was negotiate
what; we have no union people…45
JD–46–16
12
(Tr. 121–122.) Despite his subsequent attempt to reframe the conversation with Arini as a
“chat”, Sobran’s own words show that he clearly understood that Arini was asking him to
negotiate a new CBA. He also acknowledged that he believed Arini “wanted to come in and
negotiate an agreement for people” that in his mind “aren’t even represented by the union.” (Tr.
133–134.) Moreover, the chain of events leading to the January 13, 2015 telephone call support 5
a finding that Respondents were aware of the Union’s demand to bargain and attempts to get
negotiations scheduled. First, there was the December 15, 2010 written demand to bargain,
followed by the January 2011 unfair labor practice charge and subsequent settlement agreement
mandating Respondent MTA engage in good-faith bargaining with the Union. From December
2012, to January 13, 2015, Arini made monthly visits to the Temple expressing to Genther on 10
seven to eight occasions the Union’s desire to negotiate a contract, and to tell Sobran of the need
to schedule negotiating sessions. These actions culminated in the Union’s final demand to
bargain made in January 2015.
Accordingly, I find that the Union made a valid demand to bargain which Respondents 15
refused in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
20
1. By failing and refusing to bargain with the Union as as the exclusive collective-
bargaining representative of unit employees, Respondents violated Section 8(a)(1) and (5) of the
Act.
2. The above violation constitutes an unfair labor practice that affects interstate
commerce within the meaning of the Act.25
3. Respondents have not otherwise violated the Act.
REMEDY30
Having found that Respondents committed the unfair labor practice set forth above, I
shall order it to cease and desist from its unlawful conduct and to post an appropriate notice and
take other affirmative action designed to effectuate the purposes of the Act. More specifically,
Respondent will be ordered to recognize and bargain in good faith with the Union for a 35
reasonable period of time over the establishment of a collective-bargaining agreement.
On these findings of fact and conclusions of law, and on the entire record herein, I issue
the following recommended14
40

14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulation, the
findings, conclusions and recommended order herein shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for all purposes.
The Respondents, Masonic Temple Association of Detroit and 450 Temple, Inc., a single
employer, its officers, agents, successors
5
1. Cease and desist from
(a) Refusing to bargain with, or withdrawing recognition from, the Union as the
exclusive bargaining representative of the
Temple Avenue in Detroit Michigan10
(b) In any like or related manner interfering with
in the exercise of right guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act15
(a) Within 14 days from a request, bargain collectively w
exclusive bargaining representative of
facility located in Detroit, Michigan
20
(b) Within 14 days after service by the Region, post at
Temple Avenue in Detroit, Michigan
of the notice, on forms provided by the Regional Director for Region
Respondents’ authorized representative, shall be posted by the Respondent
60 consecutive days in conspicuous places, including all places where notices to employees are 25
customarily posted. Reasonable steps shall be taken by the Respondent
notices are not altered, defaced, or covered by any other mate
pendency of these proceedings, the Respondent
facilities involved in these proceedings, the Respondent
expense, a copy of the notice to all 30
facilities by Respondent at any time since
(c) Within 21 days after service by the Region
sworn certification of a responsible official on a form
steps that the Respondents have35
Dated at Washington, D.C. June
40

15 If this order is enforced by a judgment of a United States court of appeals, the words in the notice
reading “Posted by Order of the National Labor Relations Board” shall read “Posted pur
Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations
Board.”
13
ORDER
, and assigns, shall
unit employees at Respondents facility located at 500
.
, restraining, or coercing employees
ith the Union as the
unit employees at Respondents 500 Temple Avenue
.
Respondents’ facility at 500
copies of the attached notice marked “Appendix.”
7, after being signed by the
s and maintai
s to ensure that the
rial. In the event that, during the
s have gone out of business or closed the
s shall duplicate and mail, at its own
current employees and former employees employed at those
January 13, 2015.
, file with the Regional Director a
provided by the Region attesting to the
taken to comply.
6, 2016.
Christine E. Dibble (CD)
Administrative Law Judge
JD–46–16
.
15 Copies
ned for
suant to a
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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT refuse to bargain with, or withdraw recognition from, the Union as the exclusive
bargaining representative of the employees at Respondents’ facility at 500 Temple Avenue in
Detroit, Michigan.
WE WILL NOT, in any like or related manner interfere with, restrain or coerce employees in the
exercise of right guaranteed them in Section 7 of the Act.
WE WILL, within 14 days from a request, bargain collectively with the Union as the
exclusive bargaining representative of employees employed at our facility at 500 Temple Avenue
in Detroit, Michigan.
MASONIC TEMPLE ASSOCIATION OF DETROIT and 450
TEMPLE, INC., a single employer
(Employer)
Dated __________________________By ________________________________________
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the
National Labor Relations Act. It conducts secret-ballot elections to determine whether employees want
union representation and it investigates and remedies unfair labor practices by employers and unions. To
find out more about your rights under the Act and how to file a charge or election petition, you may speak
confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain
information from the Board’s website: www.nlrb.gov.
National Labor Relations Board
Patrick V. McNamara Federal Building, Region 7
477 Michigan Avenue, Room 300
Detroit, Michigan 48226-2569
(313) 226-3200
Hours: 8:15 a.m. ET to 4:45 p.m. ET
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/07-CA-144521 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273−1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND
MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS
CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE
REGIONAL OFFICE’S COMPLIANCE OFFICER, (313) 226-3200.