Balsam Village Management Co.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 420 (N.L.R.B. 1984)

420

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Eli Gordon, Gerald Tillinger and Seymour Tillinger,
a Copartnership, d/b/a Balsam Village Manage-,
ment Company and Local 32B-32J, Service
Employees International Union, AFL-CIO.
Case 27-CA-10276
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 17 October 1983 Administrative Law Judge
Stanley N. Ohlbaum issued the attached deci§ion.
The Respondent filed exceptions and a 'supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
For the reasons the judge stated, we agree that a
Gissel2 bargaining order is clearly warranted to
remedy the Respondent's unfair labor practices,
which the judge aptly described as the "unlawftil
discharge of an entire bargaining unit, lock, stock
and barrel, for the express purpose of avoiding the
statutory bargaining obligation.7 3 We also agree
with the judge's rejection of the Respondent's ar-
gument that a bargaining order should be denied
because all three discrimiriatees declined reinstate-
ment, and thus there has been substantial , "employ-
ee turnover." As the judge pointed out, the Re-
spondent's contention has "a hollow ring" because
the "employee turnover" in this case was a direct
and obvious product of the Respondent's own un-
lawful conduct.
Our dissenting colleague claims that a bargaining
order is inconsistent with decisions of the Second
Circuit. We disagree. In its Jamaica Towing opin-
ion, 4 the court specifically cautioned against "re-
warding an employer for his own misconduct," and
limited consideration of the turnover factor to
"cases where later relevant events are not of the
employer's making." Here, the "employee turnov-
er" was "of the employer's making," and withhold-
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir. 1951)
We have carefully examined the record and find no basis for reversing
the findings
NLRB v Ousel Packing Co, 395 US 5,75 (1969)
3 We find it unnecessary to pass on the judge's alternative rationale for
issuing a bargaining order
4 NLRB v Jamaica Towing, 632 F 2d 208, 214 (2d Cif 1980)
ing a-'bargaining order on that ground would be
"rewarding an employer for his own misconduct."
Accordingly, for 'all of the above reasons, we adopt
the judge's recommendation that a Gissel bargain::
ing, order be issued.5
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Eli Gordon,
Gerald Tillinger and Seymour Tillinger, a . Copart-
nership, d/b/a Balsam Village Management Com-
pany, New York, New York, its partners, agents;
successors, and assigns, shall take the action set
foith in the Order.
5 Chairman Dotson finds the issuance of a bargaining order in this case
arising in the Second Circuit to be 'contrary to the law of that circuit See
NLRB v Pace Oldsmobile, Inc , 739 F 2d 108 (2d Cir 1984), NLRB v
Windsor Industries, 730 F 2d 860 (2d Cir 1984), NLRB y Knogo Corp, •
727 F 2d 55 (2d Cir 1984), and cases cited therein While recognizing the
severity of the Respondent's misconduct, Chairman Dotson finds that a
bargaining order would impair the rights of the Respondent's current
work force In so finding he notes that the unlawfully discharged em-
ployees declined reinstatement to their former jobs Thus, there is no
continuity in the Company's work force before and after the.unfair labor
practices Fuither, the record falls to show that the Respondent asked the
replacement employees about their union sentiments, that the replacement
employees exhibited any interest in the Union, or that the Union attempt-
ed to organize the new employees No showing was made that the cur-
rent employees discussed the Respondent's prior misconduct or that the
Respondent has engaged in further antiunion activity In view of the cir-
cumstances of this Second Circuit case, Chairman Dotson finds a bargain-
,ing order, inappropriate
DECISION
STATEMENT OF THE CASE
STANLEY N:' OHLBAUM, Administrative ' Law Judge.
This proceeding,' under the National Labor Relations
Act, 29 U.S C. § 151 et seq. (Act), was litigated before
me in Brooklyn, New York, on August 15 and 17, 1983,
with all parties participating throughout by counsel af-
forded full opportunity to present evidence, arguments,
and briefs (received on October 7, 1983). All have been
carefully considered.
The basic issues presented are whether Respondent
violated Section 8(a)(1), (3), and (5) of the Act by threat-
ening employees with discharge and other reprisals for
joining or supporting the Charging Party Union, by dis-
charging (and, for a time, refusing to agree to reinstate)
three employees for joining the Union and engaging in
concerted activities protected under the Act, and by re-
fusing to recognize and bargain with the Union as the
authorized collective-bargaining representative of Re-
spondent's employees. Respondent denies all of these al-
legations.
Based on complaint issued April 5, 1983, by the Acting Regional Di-
rector for NLRB Region 29, growing out of charge filed on February 18,
1983, by the above Union
273 NLRB No. 66
, BALSAM VILLAGE MANAGEMENT CO 421
On the entire record and my observation of the testi-
monial demeanor of the witnesses, I make the following
FINDINGS AND CONCLUSIONS .
I. PARTIES; JURISDICTION
At all material times, Respondent, a copartnership con-
sisting of Eli Gordon, Gerald 'ranger, and Seymour
Tiflinger doing business under the firm name and style of
Balsam Village Management Company, has continuously
engaged and now engages in the management, operation,
and rental ,of a garden apartment complex known as
Balsam Village, at 88-15 133d Avenue, Borough and
county of Queens, city and State of New York, at which
address Respondent has also maintained and maintains its
principal office and place of business During the repre-
sentative year immediately preceding issuance of the
complaint, Respondent derived gross revenues exceeding
$500,000 in and from those business operations; and, fur-
ther therein, caused to be transported to and received at
its said premises for its use in said business, goods and
materials valued at over $5000, purchased from other en-
terprises in New York who in turn had purchased and
received them directly in interstate commerce . from and
through other States. 1.
I find that at all material times Respondent has been
and is an employer engaged in commerce within the
meaning of Section 2(2), (6), and •(7) of the Act; and that
at all of those times Charging Party Union has been and
is a labor organization as defined in Section 2(5) of the
Act
II. ALLEGED UNFAIR LABOR PRACTICES
-A. Facts as Found-
Respondent operates • and manages, an apartment house
complei in Queens County, New York, covering some
seven city blocks, consisting of 270 apartment Units lo-
cated in 45 six-family buildings. Prior to events to be de-
scribed, upkeep, maintenance, and cleanup of the
grounds, walks, and portions of the buildings used in
common (hallways, stairs, doors, cellars, furnaces, etc.), •
as well as minor repairs (e.g., minor plumbing), were
done by three employees who figure prominently in the
events to be described. These were Carlos Casal, the "su-
perintendent" (but not a supervisor within the Act's defi-
nition, since he lacked authority over and had no subor-
dinates, and posses•sed no other characteristic of .supervi-
sorship listed in the Act) who tended some 118 boilers
and. water heaters and also made minor repairs within his
capability; and Mario ' Aguila and Daniel Santos, who
took care of the grounds (mowing lawns„ keeping grass
and walkways debris free, etc.) and general cleanup
chores (hallways, stairways and rails, hall ceilings, win-
dows, doors, mailboxes, vacnuming and waxing floors,
laundry rooms, parking lots, project office, etc ) Major
refurbishing was accomplished by outside contractors,
including firms of the Tillinger brothers or Eli Gordon,
the partners comprising Respondent partnership. 2 Until
2 Some painting was occasionally-done by one or the other of the fore-
going three employees, on their own time, for extra or separate pay
around the summer of 1982, Mattie Tillinger, wife of Re-
spondent partner Seymour Tillinger, was in overall
charge and management of the housing project. When
she (Mrs. Seymour Tillinger) ceased functioning in that
capacity, Respondent partner Eli Gordon commenced
overseeing the project until Respondent partner Gerald
(Jerry) Tillinger assumed that responsibility on a full-
time basis in October 1982 (with Gordon continuing to
participate on a part-time basis). The project office book-
keeping, correspondence, and related chores were han-
dled by office manager/secretary Helen Lober in an
office she shared with Jerry Tillinger (and Gordon). Re-
spondent partner Seymour Malinger has not taken an
active part in Respondent's operations at the times here
involved.
Because of dissatisfaction with the terms and condi-
tions of their employment (including a cutback in medi-
cal insurance for dependents), in early December 1982
interest in the possibility of joining a union to bargain
collectively, developed among these three employees,
who (except for an occasional student here and there uti-
lized occasionally and sporadically to assist with a chore,
a part-time night watchman/guard, and the office
manager/secretary), comprised the entire work force at
the project. It was stipulated at the outset of the hearing
that these three employees constituted the only employ-
ees in the bargaining unit alleged in the complaint, a con-
ventional bargaining unit which I find appropriate for
collective bargaining under the Act (and so admitted at
the trial by amendment to the answer).
After meeting with a business agent (Anthony Poem)
of the Charging Party Union in January 1983 and, after
discussions with him being satisfied to proceed along that
line, Respondent's three employees joined the Union
(paying the required initiation fees) and on January 20,
1983, signed cards (the meaning and significance of
which they each clearly understood) authorizing the
Union to represent them in collective bargaining. On
January 25 or 26 the Union mailed receipts for these ini-
tiation fees to Casal at the project On the mistaken belief
that he lived there), although Casal lived off the project
premises That mail, in a window envelope showing the
name and return address of the Union, and bearing the
capitalized words "ENCLOSE YOUR UNION BOOK!
DO NOT SEND CASH!," thus arrived at the project
office, where it landed on the desk of Project Manager
Jerry Malinger, where it was observed by Casal on Janu-
ary .27 or 28 (Thursday or Friday). The envelope, per-
haps opened, 3 was handed to Casal by Office Manager
Lober on February 2 (Wednesday).
When the three employees discussed the pros and cons
of union affiliation with Union Business Agent Poccio,
the latter specifically warned them that - "joining the
Union could mean losing [your] jobs if the Employer [is]
not in agreement with it." Unfortunately, this prediction
of Poccio was precisely and rapidly fulfilled. On Febru-
ary 4 '(Friday), payday, 2 days after the union envelope
3 Casal could not recollect one way or the other, since, as he testified,
he was considerably unnerved by the incident-1 e, delivery of the enve-
lope beanng the union name, addressed to him, at the project office, —
clearly disclosing connection with the Union
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the union initiation fee receipts of Casal and his two
fellow employees was handed to Casal by Lober, the
three employees were summarily discharged. •
Casal as well as Aguila had been in Respondent's
employ uninterruptedly for some 6 years, since 1977; and
Santos from 1980, with a hiatus from late 1980 to mid-
1982 followed by rehire and continuous employment
since then. As testified by these three individuals, whom
I credit based on my close observation of their testimoni-
al- demeanor, no dissatisfaction had been expressed by
management with the work of any of them. 4 At no time
has Respondent furnished any of these employees with
any writing stating any reason or basis for his discharge, -
and unemployment insurance benefits 5 to them were ap-
plied for and paid without objection or protest from Re-
spondent.
The circumstances of the actual discharges were as
follows. In the early afternoon of February 4 (Friday),
Office Manager Lober summoned Casal to the project
office, where he -was met by Project Manager Jerry Til-
linger and his partner, Gordon. Gordon opened up at
Casal with, "This is not Manhattan. We cannot afford
Unions here, and [you all] should have came and talked
to me about this before you done anything about it. . . .
We cannot afford Unions and you should talk the [other
two] men out of getting into Union . . . . [We need
your] cooperation for all of us to work together to try to.
bring the place back into shape and the Union will not
let us do that. . . . [G]o and talk to them [i.e., his two
fellow-employees] and talk them out of the Union. . . .
if [you all] bring the Union [I'm] going to have to fire
them and [I'm] 'going to have to accept your resigna-
tion. . . ." When Casal explained to Gordon and Til-
linger that "it's too late, the men want the Union: We
have talked about it," Gordon persisted, "Well, just go
and talk to them, just tell them that they will lose their
jobs. They have families to support and I'm sure they
don't want to lose their jobs. Just go and talk to them
and explain to them that there will be no job if they join
the Union." Gordon also told Casal, "You have to
decide whether you guys want to work here or you guys-
don't want to work here. . . unions are no good for the
company . . . once you have a union you cannot work
as a family any more . . . if the men don't want to give
up the union, then they don't have a job. . . . [I]f [you
don't] cooperate and get them out of the union, [we will]
have to accept [your] resignation. . . . You have a
family also . . and [you have] to think about [your]
family." Casal thereupon conveyed the foregoing to
4 Some alleged correspondence from a very few alleged tenants out of
the very large number of tenants, produced by Respondent, details cer-
tain alleged complaints to management These, however (including non-
receipt of a copy of the lease, and various structural or outside repairs
desired), from but few of the very large number of tenants in the project
and constituting seemingly the usual kind of complaints from tenants,
either obviously fall outside the scope of the duties or competence of the
three employees or have not been shown to be ascribable in any way to
any neglect, misfeasance, or nonfeasance on their part, nor is there any
showing that any of these alleged conditions was ever reported or as-
signed to any of those employees for rectification, nor, if It was, that it
was not taken care of
5 As is well known, such benefits are not payable in case of discharge
for cause ascribable to the employee
Aguila and Santos and told them that "you.have to make'
a decision if you want the Union or not because he's
firing you if you want the Union." Both Aguila and
Santos indicated that they "wanted" and' were "sticking
with the Union." Casal returned to the project office and
relayed this decision to Gordon and Tillinger, adding
that "I'm sticking with the union with the men." Gordon
then urged Casal to "come off the union [yourself] and
[I'll] straighten it out with the men." When Casal reiter-
ated, "No, I'm sticking with the union with the men,"
Gordon responded, "Well, if you're going to stick to the
union, . . then I accept your resignation also." At no
time did Casal accept the invitation to "resign:" Gordon
proceeded to remonstrate with Casal. again,- urging anew
that they give up the Union, this time adding, "You -
[Casal] know that you are the key for them to be in the
Union. You know that if-you don't join the Union they
have no chance. They don't speak English. They will
never be 'able to do anything, but you are the key."'
Gordon concluded by inviting CaSal and his wife to join'
him for dinner that evening "and then we will all be a
happy family again." As for Agaila and Santos, Gordon
said, "they are finished. [I] cannot keep them any'
longer" And,' when they came for their pay 'later in the
afternoon, Gordon did indeed abruptly terminate them,
stating that their' jobs 'were "not 'going' to be performed
any longer : . . [We] are not in the business to clean
hallways.. . . [We are] doing a rental business and
things [re] not doing well and besides . . . [you] don't
speak English and we Cannot use you for anything else.
If you spoke English maybe we could try to put you
doing something else."
Following the discharge of these three employees on
February 4, the Union on February 7 formally requested
to meet and bargain with Respondent (G.C. Exh 2), a
request received by Respondent on' February 10 but to
which Respondent has at no time responded. On Febru-
ary 8, continuing until mid-April, the' three discharged
employees picketed Respondent's premises. During the
couise of this picketing, replacement employees were ob-
served to be doing the work they had formerly done. 6 -
Also 'during the course of this picketing, on February 25
GordOn approached the pickets and informed them that
if they renounced the Union they could return to their ,
jobs—a condition not accepted by the employees, who
continued their picketing.
It was stipulated at the trial that on June 8, 1983, Re-
spondent offered the three employees here reinstatement,
which they declined.
.It is evident from the foregoing facts . as found that the
General .Counsel has established a clear prima facie case
of inhibitory, restraining, coercive, discriminatory, and
retaliatory discharge of the three employees in question;
in violation of Section 8(a)(1) and (3) of the Act. The
three had been satisfactory employees for a long time but
were precipitately fired right after they joined the Union
6 Confirmed by Respondent's own personnel records, as testified to by
Respondent's office manager Lober Gordon also conceded that, after the
discharge of Aguila and Santos, their work continued to be done by
other employees hired to replace them, and that of the six hired, none
was a union member
BALSAM VILLAGE MANAGEMENT CO 423
and Respondent learned about it. Respondent's knowl-
edge is clear not only from its receipt of the unfortunate-
ly misdirected union envelope- containing the receipts for
the . three employees' initiation fees, but also, of course,
from Gordon's remarks to Casal, detailed above, impor-
tuning Casal to persuade his fellows to drop out of the
Union, on penalty of being discharged
The General Counsel having established a prima facie
case, the burden shifts to Respondent to establish by a
preponderance of evidence that the discharges in ques-
tion were not for reasons violative of the Act. See
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). It is accordingly necessary to address Respond-
ent's defenses.
B Respondent's "Defenses"
Respondent advances' several contentions by way of
defense. Each is readily and simply answered.
To begin with, Respondent contends that it no longer
had need for the discharged employees' services. This is
belied by the fact that no previous mention had been
made to that effect, prior to their advent into unionism;
by the nature of Respondent's business, which had not
changed and which clearly continued to require such
services; by Respondent's prompt hire of replacements
for the discharged employees; and by Respondent's offer
of reinstatement to the discharged employees.
Respondent next contends that it discharged Aguila
and Santos because they could not speak English The
answers to this are that Respondent was aware of this
when it hired them; that they remained in Respondent's
employ for years without complaint or incident on that
(or other) score, that knowledge of English was not re-
quired in the work they did, and ignorance of English in
no way affected their job performance; and that they
could and did carry on two-way conversations with
Project Manager Tillinger in Spanish, which he spoke
and understood.
Respondent further contends that Casal resigned his
job voluntarily. This is simply untrue. Upon comparative
testimonial demeanor evaluation, without more (as well
as on the plain inherent probabilities of the situation
under the circumstances described), I clearly prefer and
accept the version of Casal (a most impressive witness)
over that of Gordon (a poor quality witness, as the
record also will disclose) as to the statements, circum-
stances, and events surrounding the employees' dis-
charges on February 4
Respondent also contends that the employees were dis-
charged for inefficiency or inability to do the needed
work. This also is belied by their long-term employ-
ments, during which Respondent had expressed no 01S-
satisfaction with their work.7
I have already commented on the insignificant, irrelevant, or incon-
clusive nature of the few paltry "complaints" of a small number of ten-
ants, many, if not most, which related to matters not within these em-
ployees' duties or competence, and as to which there was no proof that
they were communicated to these employees for their action: nor that
they were not attended to by them Supra, fn 4
As for other "defenses" darkly hinted at in Respond-
ent's opening statement, suffice it to say that they did not
emerge from, that darkness at the trial, and that they
therefore continue to be invisible and not deserving of
mention, much less credit. Perhaps it is fair, however, to
regard them as reflective of the fictive or , pretextual
nature of the other "reasons" contrived to attempt to jus-
tify the discharges under the circumstances shown.
Finally, it is to be observed that Jerry Tillinger, al-
though deeply implicated in events that have been de-
scribed, elected without explanation not to testify.
Under these circumstances, Respondent having failed
by a preponderance of the evidence to overcome the
General Counsel's prima facie case (Transportation Man-
agement, supra), it is found that Respondent threatened
to and then discharged the three employees in question
on February 4, 1983, because of their union membership
and their desire to bargain collectively, rights guaranteed
to them under Section 7 of the Act; that but for such
union membership and their exercise of such rights they
would not have been discharged, and that Respondent
thereby violated and continues to violate Section 8(a)(1)
and (3) of the Act; and, further, that by failing and refus-
ing to bargain with Charging Party Union as the duly
authorized collective-bargaining representative of an ap-
propriate bargaining unit of Respondent's employees, Re-
spondent has violated and continues to violate Section
8(a)(5) and (1) of the Act.
On the foregoing findings and the entire record, I state
the following
CONCLUSIONS OF LAW
1 Jurisdiction is properly asserted here.
2. By threatening to discharge and by discharging its
employees Carlos Casal, Mario Aguila, and Daniel
Santos, at the times and under the circumstances de-
scribed and found in section III, supra, Respondent has
discriminated in regard to the hire, tenure, and terms' and
conditions of employment of its employees, and has fur-
ther interfered with, restrained, and coerced employees
in the exercise of rights guaranteed in Section 7, thereby
violating Section 8(a)(-3) and (1), of the Act.
3. By failing and refusing to recognize and bargain col-
lectively with Local 32B-32J, Service Employees Inter-
national Union, AFL-CIO as the duly designated bar-
gaining representative of all of Respondent's employees
in the following appropriate collective-bargaining unit,
under the circumstances described and found in section
II, supra, Respondent has violated Section 8(a)(5) and (1)
of the Act:
All building service employees, including porters,
handymen and superintendents employed by Re-
spondent at its Queens facility, exclusive of office
clerical employees, guards and all supervisors as de-
fined in Section 2(11) of the Act.
4. The aforesaid unfair labor practices and each of
them have affected, are affecting, and unless permanently
restrained and enjoined will continue to affect, com-
merce within the meaning of Section 2(6) and (7) of the
Act.
424 DECISIONS OF NATIONAL LABOR :RELATIONS BOARD
REMEDY
Respondent having been found to- have discharged em-
ployees, after threatening to do so, and to have inter-
fered with, restrained, and coerced them in the exercise
of their Section 7 rights, in violation -of Section 8(a)(3)
and (1) of the Act, should, as is usual in cases of that va-
riety, be ordered to cease and desist from continuing' dr
other such violations and to make each of the employees
whole through payment of backpay and interest comput-
ed as explicated by the Board in F. W. Woolworth Co, 90
NLRB 289 (1950), Isis Plumbing Co, 138 NLRB 716
(1962), and Florida Steel Corp., 231 NLRB 651 (1977). In
this connection it is to be noted that the parties have
stipulated that the three discharged employees here were
offered, but declined, reinstatement on June 8, 1983, and
that with regard to the calculation of backpay, the Gen-
eral Counsel seeks no more for the three by way of rec-
ompense than the backpay due them until then. Respond-
ent should also, as usual, be required to expunge any rel-
evant deleterious references to .these employees from its
records; to preserve and open its books and records- to
the Board's agents for computation and compliance de-
termination purposes; and to post the conventional infor-
mational notice to employees.
' There arises the additional question of whether,. as the
General Counsel demands, a bargaining order •should be
issued in this case. In this connection 'it is to be noted
that, at the time of their unlawful discharge as welt as at
the time of the Union's demand for recognition and col-,
lective bargaining, the three employees here constituted
the entire (100 percent) bargaining unit. It is further to
be noted that at no time was the status of the Union as
such bargaining agent in any way challenged or ques-
tioned by Respondent—indeed, to the contrary, Re-
spondent insisted that the three employees and Union
members relinquish their union membership as a condi-
tion to being permitted to remain in Respondent's
employ; and when they refused to do so they were for
that reason promptly discharged. Employees who are
discharged in violation of the Act remain employees
within the Act's definition (Sec. 2(3)). Since the three un-
lawfully discharged employees were thus employees, as
well as the only members of the bargaining unit, when
Respondent received the Union's demand to bargain, the
Union represented all of the employees in the lbargaining
unit at that time. In no way did Respondent challenge or
raise any question concerning the union's authority as
bargaining representative, and at no time did Respondent
request an election. The Act does not require an election
as a precondition to union recognition. An employer
who doubts a union's representative status without an
election should in some way so indicate. But here there
was no doubt in Respondent's mind regarding the
Union's status and authority. After a direct confronta-
tion, the employees expressly refused to abandon the
Union, when Respondent demanded that they do so as
the cost of retaining their jobs. What better proof of
their union desires (or of Respondent's knowledge there-
of) was required? Thus, there was no question in Re-
spondent's mind of the Union's status as the duly, desig-
nated bargaining representative. of all of the unit employ-
ees at the time the Union sought to bargain on their
behalf. The fact that, on top of its discharge of these em-
ployees for joining the Union and seeking to bargaining
collectively, Respondent later replaced them with a new
and larger crew, does not change this We have been
long and consistently instructed by the Supreme Court
that mere turnover—even, unlike here, where wholly le-
gitimate—does not oust a union as bargaining representa-
tive. See NLRB v. P. Lorillard Co., 314 U.S. 512, 513
(1942);: Franks Bros. Co. v. NLRB, 321 U.S. 702 (1944);
NLRB v. Katz, 369 U.S. 736, 748 fn. 16 (1962); NLRB v.
Gissel . Packing Co., 395 U.S 575, 610 (1969). And, of
course, an employer cannot disestablish a bargaining unit
or avoid his obligation to bargain by simply unlawfully
discharging all of the unit members—this is so plain that
it requires no citation of authority. Even if, after the bar-
gaining obligation was perfected, the three employees
here had left of their own accord and had been replaced
by nonunion employees, the existing bargaining obliga-
tion would not • thereby have been erased. Gissel and
other 'cases cited supra. It is no different just because the
three here subsequently, declined reinstatement, for. rea-
sons good and sufficient to them, such 'as disinclination
to give up other jobs they had since obtained. An em-
ployer cannot be permitted (as Respondent here attempt-
ed to _do) to disestablish a bargaining unit through the
simple expedient of discharging all of its members. Such
a l'esult would constitute an intolerable affront to the
basic purposes of the Act. And -sinCe the effects of Re-
spondent's actions remain coercive, they continue to re-
quire remediation so that deliberate flouting of core pur-
poses of the Act not be encouraged by going urireme-
died.8
Respondent's refusal to recognize and bargain with the
Union -as the bargaining representative of all of its unit
employees, without raising any question as to the
Union's status or demanding an election, constituted a
violation of Section 8(a)(5), as found above. In this situa-
tion, resort to ,Gissel to support an electionless bargaining
order is unnecessary, for to withhold a bargaining order
in this situation would leave the Section 8(a)(5) violation
wholly unremedied 9 However, even under Gissel a bar-
gaining order would be appropriate under the circum-
stances shown—i.e., unlawful discharge of an entire bar-
gaining unit, lock, stock, and barrel, for the express pur-
pose of avoiding the statutory bargaining obligation. In
Gissel, supra, the Supreme Court described the condi-
tions where an electionless bargaining order is appropri-
ate under the Act. The instant case fits comfortably
within the Court's instructions there. I find that Re-
spondent's described unlawful. actions' in discharging the
thiee employees, 'comprising the entire bargaining unit,
for attempting to exercise the statutorily guaranteed right
to bargain collectively, was deliberate, egregious, and
pervasive, thrusting at the heart of the Act's purposes
8 For this reason On addition to the 8(a)(5) violation descnbed above),
it matters not that the three unlawfully discharged employees do not
desire reinstatement, since, if no effective remedy is provided, Respond-
ent will have succeeded in its deliberate flouting of the Act
9 Neither a bargaining demand (or petition) nor an 8(a)(5) violation is a
prerequisite for a Gusel electionless bargaining order assel, supra at 610
and 614
BALSAM VILLAGE MANAGEMENT CO 425
and guarantees; that it had and will "have the tendency
to undermine majority strength and impede the election
processes" (Gissel, supra at 614); that it was and contin-
ues to be of "such a nature that [its] coercive effects
cannot be eliminated by the application of traditional
remedies, with the result that a fair and reliable election
cannot be had" (id. at 614); that, under the circum-
stances described and found, "the possibility of erasing
the effects of [Respondent's] past practice and of ensur-
ing a fair election . . by the use of traditional remedies
. .is slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order" (id. at 614415); and that there is
"insufficient indication that an election . . . would,,defi-
nitely be a more reliable test of the employees desires
than the card count taken before the unfair labor prac-
tice occurred" (id. at 616) 10
An employer who discharges the entire bargaining
unit because its members have designated a union to bar-
gain collectively for them is hardly in a position to com-
plain if required to bargain with the union without that
fair election which it set out deliberately to abort by
riding roughshod over its employees' rights and the laW's
requirements 11 Respondent's current tongue-in-cheek
protestation against an electionless Gissel bargaining
order on the ground that it would deprive its present em-
ployees of the "free choice" of bargaining representative
has a hollow ring, since it was Respondent itself who, by
discharging all of its union employees, attempted to ,de-
prive them of that free choice through an uncoerced and
fair election without unlawful interference on its,. part
Respondent's current argument, purportedly "seek[ingj
to vindicate the rights of his employees" (Brooks v.
NLRB, 348 U S 96, 103 (1954); see also Ladies ,Garment,
Workers v. NLRB, 374 F.2d 295, 308 (D.C. Cir. 1967),
cert. denied 387 U.S. 942 (1967), who themselves seek no
such "vindication," would be more appealing if Re-
spondent had not deliberately terminated its 'union em-
ployees and replaced them with nonunion 'employees,
thereby deranging the statutory election system by put-
ting a heavy hand on the election scales. Respondent has
changed the electorate to one of its own design. Its posits
tion is thus at odds with the principles enunciated by the
Supreme Court 14 years ago in Gissel. Respondent's con-
tention that it should no longer be required 'to bargain.
since, as a result of its unlawful discharge of the three
employees here, it no longer employs aily union person-
nel, smacks like that of the orphan who, convicted of
murdering his parents, pleaded for mercy on the ground
that he was a poor orphan. See Franks Bros. Co., supra at
704.
Accordingly, on Gissel principles as well as because of
Respondent's flat-out violation of Section 8(a)(5), a bar-
10 See also Amsterdam Wrecking & Salvage Co, 196 NLRB 113 (1972),
enfd 472 F 2d 153 (2d Cir 1973), Medley Distilling Go, 187 NLRB 84
(1970), enfd 453 F 2d 374 (6th Or 1971), Gibson Products Go, 185
NLRB 362 (1970)
11 As has been pointed out, discriminatory discharge "goes to the very
heart of the Act" (A J Krafewski Mfg Go, 180 NLRB 1071 (1970)) and
is the "surest method of undermining a union's majonty or impeding an
election process" (NLRB v Saton Tank Go, 467 F 2d 1371, 1372 (8th
Or 1972)), and, accordingly, a bargaining order is on that basis alone
warranted
gaining order is warranted and required here, and should
be issued •
In view of the serious, egregious nature of Respond-
ent's violation,' thrusting at "the very heart of the
Act," i2 Respondent .should also be required to cease and
desist from any violation of the Act.13
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondents, Eli Gordon, Gerald Tillinger and
Seymour Tillinger, a Copartnership, d/b/a Balsam Vil-
lage Management Company, New York, New York,
their agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging or encouraging membership in any
labor organization by discharging, terminating, laying
off, furloughing, suspending, failing to recall or reinstate
or rehire,, threatening so to do, or otherwise discriminat-
ing in regard to the hire or tenure of employment or any
term or condition of employment of any of its employ-
ees. •
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
(c) In any other manner interfering with, restraining,
or coercing any employee in the exercise of the right to
self-organization; to form, join, or assist any labor organi-
zation, to bargain collectively through representatives of
his or her own choosing; to engage in concerted activi-
ties for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative actions necessary to
effectuate the policies of the Act.
(a) Make the following employees whole for any loss
of pay (including overtime, holiday, and vacation pay,
and insurance benefits and reimbursements if any), to-
gether with interest, in the manner set forth in "The
Reniedy" portion of the decision of which this Order
forms a part:
Carlos Casal
Mario Aguila
Daniel ,Santos
(b) Forthwith expunge from the personnel and em-
ployment records of each of said employees all state-
ments or references that they (or any of them) were ter-
minated or laid off by Respondent for any work related
fault, deficiency, or reason; refrain from so reporting to
any employer, prospective employer, employment
"A J Krajewski Mfg Go, 180 NLRB 1071 (1970)
13 NLRB'v Enwistle Mfg Go, 120 F 2d 532, 536 (4th Or 1941), Hick-
moo Foods, 242 NLRB 1357 (1979)
14 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 rit:1' all objections to them shall be deemed waived for all pur-
poses
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agency, reference seeker, or credit or character inquiry,
or that such action by Respondent was in any way relat-
ed to any union or other lawful activity by any of said
employees under the Act; and notify said employees in
writing that such entries in Respondent's records have
been expunged and that evidence of said terminations or
layoffs will not be used as a basis for future personnel ac-
tions against them.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecaids,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpAy due under the
terms of this Order.
(d) On request, bargain collectively in good faith with
Local 32B-32J, Service Employees International Union,
AFL-CIO, as the exclusive _bargaining representative of
Respondent's employees in the following appropriate
collective-bargaining unit, with respect to rates of pay,
wages, hours of' employment, and other terms and condi-
tions of employment, and embody-in a signed agreement
any understanding reiclied: •
All building service employees, including porters,
handymen and superintendents employed by Re-
spondent at its Queens facility, exclusive of office
clerical employees, guards and all supervisors as de-
fined in Section 2(11) of the Act.
(e) Post at its premises at 88-15 133d Avenue, Borough
and county of Queens, city and State of New York,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director for Region 29, after being signed by Respond-
ent's authorized representative, shall be 'posted, by Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where . notices to employees are customarily
posted. Reasonable steps shall be taken to. ensure that
said notices are not altered, defaced, or covered by any
other material.
(0 Notify the Regional Director in writing within .20
days from the date of this Order what steps Respondent
has taken to comply
5 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 Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board" •
APPENDIX •
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United . States Government
After a hearing at which all sides had the opportunity to
present eâ– iidence and arguments, the National . Labor Re-
lations Board has decided that we have violated the Na-
tional Labor. Relations Act. We have therefore been or-
dered to post this notice and do what it says.
The National Labor Relations Act gives all employees
these rights.
To engage in self-organizaton
, To form, join, or help unions
To bargain collectively through representatives
of their own choosing
' To act together for collective bargaining Or other
Utual aid or protection
To refrain from any or' all of these things.
WE, WILL NOT violate these rights of yours
WE WILL NOT terminate the employment of, dis-
charge, lay off, suspend, or refusè to reinstate you, or
threaten to do so, because you seek to bargain collective-
ly With 'us, or beCause you join or apply for membership
in, affiliate with, designate as bargaining representative,
or act on behalf of or in sympathy with, any labor orga-
nization, or because you exercise or seek to exercise any
right under.the National Labor Relations Act.
• WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of your right to self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of
your own choosing; to engage in concerted protected ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection; or to refrain from any and all
such activities.
-WE WILL make whole the following employees for
any wages and benefits lost by them 'because of their dis-
charge by us on February 4, 1983, plus interest:
Carlos Casal
Mario Aguila
Daniel Santos
WE WILL at once eliminate from our records all indi-
dations 'that any of the above employees was discharged
or laid off for any deficiency in work performance, or
for union membership or activity; WE WILL NOT so_
report to any employer, prospective employer, employ-
ment agency, or credit or character inquiry; WE WILL
NOT use such terminations or layoffs as a basis for future
personnel actions against said employees; and WE WILL
so notify those employees in writing
WE . WILL, on request, recognize and bargain collec-
tively with Local 32B-32J, Service Employees Interna-
tional Union, AFL-CIO, as the exclusive bargaining rep-
resentative of our employees in the following appropriate
unit, and embody in a signed agreement any understand-
ing reached.
All building service employees, including porters,
handymen and superintendents employed by us at
• our Queens facility (Balsam Village), exclusive of
BALSAM VILLAGE MANAGEMENT CO 427
office 'clerical employees, , guards and all supervisors
as defined in Section 2(11) of the Act.
ELI, GORDON, GERALD TILLINGER AND
SEYMOUR TILLINGER, A COPARTNERSHIP,
D/B/A BALSAM VILLAGE MANAGEMENT
COMPANY