Petition for Writ of Certiorari — Gordon v. National Labor Relations Board

8 6 a 8 92 } Supreme Court, U.S,

FILED

AUG 27 \986

N

IN THE * | JOSEPH F. SPANIOL, JR,

CLERK

Supreme Court of the Hnited States

Wa 2806 NO mee

October Term, 1986

No.

ELI GORDON, GERALD TILLINGER and

SEYMOUR TILLINGER, A COPARTNERSHIP

d/b/a BALSAM VILLAGE MANAGEMENT

COMPANY,

Petitioner,

—against—

NATIONAL LABOR RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

JOEL SPIVAK, ESQ.

SPIVAK & MEISELAS. ESQS.

Attorneys for Petitioner

1010 Northern Boulevard

Great Neck, New York !1021

(516) 829-3939

QUESTION PRESENTED

Whether when three unlawfully discharged employees are

offered unconditional reinstatement prior to the National Labor

Relations Board’s (hereinafter “NLRB”) hearing and all three

voluntarily refuse to accept reinstatement and the new work force

consists of six new uninvolved employees, none of whom have

chosen union representation, a bargaining order remedy is

appropriate.*

This question raises the following issues left unanswered by this

Court in NLRB vy. Gissel Packing Co., 395 U.S. 575 (1969):

|. What type of detail and explanation must be provided by

the NLRB when it issues a bargaining order?

2. What conduct and under what circumstances is a bargaining

order appropriate?

3. What is the appropriate test or standard for issuing

bargaining orders?

4. What is the effect of unusual and extraordinary turnover of

employees before and/or after the NLRB hearing on the issuance

of a bargaining order?

*Petitioner also disagrees with the finding that it violated Sections &(a) (1)

and (3) of the National Labor Relations Act (hereinatter the “"NLRA”) by dis-

charging the three emplovees. However. in view of judicial discretion, Petitioner

seeks review only of the NLRB's bargaining order remedy which the Second

Circuit affirmed.

INDEX

Page

PEST TET ELS TEE EET TELE Preface

cisco hiner esesececcs OEE TT eee TT TET ee 2

REE 5 apd abe bebe 4 ses vaccareeseseses 2

EE ee 2

EERIE Oe eee eee ee eee ee 3

ES 8 Sr 3

B. The NLRB’s Findings of Violations

ere Geb ee 6 es esse esse ce essteeas 4

i I IIIT © EPUDOOPEE ow ccc ccc cc cece sncccs 5

DD. tee Court of Appeals’ Decision .................0.. 6

eS 8

Tee Weed Tor Claritication of Gissel ...... 2. ccc ccc ceeees 8

The NLRB’s and Second Circuits Application

IIE CURIE bcc cece cess ecceccccces 10

Application of the Foregoing Principles ................. 13

EEE SEE 17

EERO ET Pe ey Tee eee eee eee eee

Appendix A — Court of Appeals’ Decision ..............

Appendix B — NLRB's Decision ..................0005-

CITATIONS

Cases:

Chandler Motors, Inc., 236 NLRB 1565,

SI OE OPI i oa ie es ge ee ee od 8

Franks Bros. Co. v. NLRB, 321 U.S. 702.

ES I werent dain ose SACs io bcd we ee 15

Gourmet Foods, 270 NLRB 578 (1984) .............. 11, 14

John Cuneo, Inc. v. NLRB, 459 U.S. 1178 (1983),

denving cert., 681 F.2d 11 (D.C. Cir. 1982) ............ 10

Justak Bros. & Co. v. NLRB, 664 F.2d 1074

UME AIII: SN Sick ate te ee 13

Kenworth Trucks of Philadelphia, Inc. v. NLRB,

Sr We Pe, I a i iin os oxen ny sds coed ebeuswa 9

Leggs Products Inc., 619 F.2d 1337

I Gaertn Gl as pe ok eee eke 13

Linden Lumber Division, Sumner & Co. v. NLRB.

ee es ee, OER nos dws ony saa eee acanaeieeceis lI

Marchese Metal, 270 NLRB 293 (1984)................2.6. 9

NLRB v. Armcor Industries, 535 F.2d 239

Oe age eee ee eeu ke tec ton un ecee' 9

NLRB v. Fansteel Metallurgical Corp., | ;

TN: PR oo oo ik abe Pk wb ke won ewe dawnt 15

NLRB v. Gissel Packing Co., 395 U.S. 575,

es WN PN i npc cuseea ncn diosde oes 6. 8. 10. 11. 12. 13

NLRB vy. Horizon Air Services, 761 F.2d

ee ig ak hk cen oo os whee 68 ed een 13

NLRB v. Keystone Pretzel Bakery, Inc.,

eee ae OF RR POD one dissin vvasebcccaces 13

NLRB y. J. Coty Messenger Service, Inc.,

pe ©.20 92, WOO (20 Cir. 1965) 6. occ ccc ccc cecwes 12

NLRB v. Jamaica Towing, Inc., 632 F.2d 208.

ee, EI WD og os 5 uo a0 kk ve Soe wk hec keen 12

NLRB v. L.B. Foster Co., 418 F.2d |

PON Sa Kabra eae teak Kos oa eee Paden 14

iil

NLRB v. Knogo Corp., 727 F.2d 55, 60

(2d Cir. 1984) ....cccccccccsecrcvevecenscssrcesceces 12

NLRB v. Pace Oldsmobile, Inc., 739 F.2d

108 (2d Cir. 1984) .... cece cee eee ee eee eee 5, 12, 13, 14

NLRB vy. Solboro Knitting Mills, Inc.,

572 F.2d 936, 944 (2d Cir.), cert. denied

439 U.S. 8646 (1978) occ ccvcsscccccsccccscccsccsecess 12

NLRB v. Western Drug, 600 F.2d 1324

(Sth Cir. 1979) ....ccccccccccesccsvcccccccsscses 13, 14

NLRB v. Windsor Industries, 730 F.2d 860

(2d Cir. 1984) 2. ccc ccccccccecccncvenecccsesecvecceces 5

Regency Manor Nursing Home, 275 NLRB

Mo. 171 (4965) on ccc cece ces reccccceccssessnssesesecse e)

Trading Port, Inc., 219 NLRB 298,

; 8 Fo. rer err reer nee eee eee eee ee ees 11

STATUTES:

National Labor Relations Act, 161 Stat. 136,

29 U.S.C. Section I51, ef seq.:

Sections 8(a) (1) and (3) of the NLRA,

29 U.S.C. Sections 158(a) (1) and (3).......-.-- 2, 4, ¥é

Judiciary and Judicial Procedure,

WB U.S.C. Section 125441) 2... 2 cc ccccevcvcccvcceaseres 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No.

EL! GORDON, GERALD TILLINGER and

SEYMOUR TILLINGER, A COPARTNERSHIP

d/b/a BALSAM VILLAGE

MANAGEMENT COMPANY,

Petitioner,

—|\ —

NATIONAL LABOR

RELATIONS BOARD,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Eli Gordon, Gerald Tillinger and Seymour Tillinger, a Co-

Partnership d/b/a Balsam Village Management Company

(hereinafter the “Petitioner” or “Company”) petitions fora Writ of

Certiorari to review the judgment of the United States Court of

_ Appeals for the Second Circuit in this case.

i es

2

OPINIONS BELOW

The opinion of the Court of Appeals (App. A., infra, pp. A-1-

A-I1) is reported at 792 F.2d 29 (2nd Cir. 1986). The decision and

order of the National Labor Relations Board (App. B, infra.

pp. B-I-B-30), is reported at 273 NLRB No. 66 (1984).

JURISDICTION

The judgment of the Court of Appeals was entered on May 30,

1986. The jurisdiction of this Court is invoked under 28 U.S.C.

Section 12541).

STATUTES INVOLVED

Section 8a) (1) and (3) of the NLRA, 29 U.S.C. Section

158(a) (1) and (3) (1982) provide:

“Section 8(a)—It shall be an unfair labor practice for

an employer—

(1) “to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed in section

, fas

XXX

(3) “by discrimination in regard to hire or tenure of

employment or any term or condition of employ-

ment to encourage or discourage membership in

any labor organization...”

STATEMENT OF THE CASE

A. The NLRB’s Findings of Fact*

Petitioner owns and manages a 270-unit garden apartment

complex in Queens County, New York. In January 1983, it

employed a total of three employees—superintendent Carlos Casal

(hereinafter “Casai”) and porters Mario Aguila (hereinafter

“Aguila”) and Daniel Santos (hereinafter “Santos”). Together they

were responsible for the upkeep and maintenance of the premises.

On January 20, 1983, the three employees joined Local 32B-32J,

Service Employees International Union (hereinafter the “Union’”).

On or about January 27 or 28, 1983, the Union erroneously mailed

the receipts for the union initiation fees to the Company’s office.

On February 4, Casal was summoned to a meeting with owners

Gerald Tillinger (hereinafter “G. Tillinger”) and Eli Gordon

(hereinafter “Gordon”). He was told that the Company could not

afford unions. Casal was instructed to try to persuade Aguila and

Santos to leave the Union. When Casai replied that Aguila and

Santos would not renounce the Union, Gordon instructed him to

tell them that unless they renounce the Union they will lose their

jobs. Gordon also told Casal that if Casal did not cooperate and get

them out of the Union, the Company would have to accept Casal’s

resignation.

Casal conveyed Gordon's message to Aguila and Santos, both of

whom toid Casal they would remain in the Union. When Casal

relayed this response to Gordon and added that he too would

* Petitioner does not agree with all of the NURB’s Findings of Fact. However,

because the only issue being appealed is the remedy. the facts are set forth here as

found by the Administrative Law Judge and adopted by the NLRB. (See App.

pp. B-7-B-17).

%

remain in the Union, Gordon told Casal, “if you're going to stick to

the union, ... then I accept your resignation also.” He continued to

urge Casal to renounce the Union himself and to persuade the other

two to renounce it also. Later that afternoon, when Aguila and

Santos went to the Company’s office to pick up their pay checks,

they were discharged—told by Gordon that their jobs were being

eliminated.

On February 8, 1983, the discharged employees began picketing

the Company's premises. On February 25, 1983, Gordon ap-

proached them on the sidewalk and told them that they could

return to their jobs if they renounced the Union. They continued to

picket until mid-April. In the meantime, the Union sent the

Company a request to meet and bargain; the Company did not

respond. Over time, the Company hired six different persons to

perform the work of the three discharged employees. One was hired

in February, two in April, and the others in June and August.

On June 8, 1983, prior to the August 1983 NLRB hearing, the

Company offered unconditional reinstatement to Casal, Aguila

and Santos. All declined. (See the Administrative Law Judge's

Decision (hereinafter “ALJD”), Appendix p. B-11).

B. The NLRB’s Finding of Violations and Its Remedy

On December 14, 1984, the NLRB issued a Decision and Order

in which it unanimously adopted the Administrative Law Judge's

findings and conclusions that Petitioner threatened and discharged

Santos, Aguila and Casal in violation of Sections 8(a) (1) and (3) of

the NLRA. The NLRB ordered the Company to make whole the

three employees, but did not order their reinstatement. The

employees already had declined reinstatement.

With one member dissenting, the NLRB also concluded that

these violations warranted, inter alia, the issuance of a Gissel,

supra, bargaining order remedy. The majority decided that the

discharges for the purpose of avoiding collective bargaining war-

ranted the issuance of a bargaining order remedy, despite the 100

percent employee turnover. Reasoning that the turnover was of the

employer’s making, withholding a bargaining order would reward

the employer. Thus, a bargaining order remedy was warranted.

C. Chairman Dotson’s Dissent

The NLRB’s blatant error in imposing a bargaining order

remedy is best explained in Chairman Dotson’s dissent:

“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 55 (2d Cir. 1984), and cases cited therein. While recog-

nizing the severity of the Respondent's misconduct, Chair-

man 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 employees declined rein-

statement to their former jobs. Thus, there is no continuity in

the Company’s work force before and after the unfair labor

practices. Further, the record fails 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 attempted to

organize the new employees. No showing was made that the

current employees discussed the Respondent’s prior mis-

conduct or that the Respondent has engaged ia further

antiunion activity. In view of the circumstances of this Second

Circuit case, Chairman Dotson finds a bargaining order in-

appropriate.” (NLRB Decision, p. 2-3. f.n., 5, App. p. B-11).

D. The Court of Appeals’ Decision

The Second Circuit enforced the NLRB’s order in all respects. It

concluded that there was substantial evidence in the Record to

support the NLRB'’s findings that the Company threatened to, and

did, in fact, discharge Casal, Santos and Aguila because of their

Union membership. Petitioner does not agree with this portion of

the Second Circuit’s opinion. However, it has chosen not to seek

review of that decision here.

The Second Circuit also concluded that the NLRB adequately

articulated its basis for issuing a bargaining order and that.the 100

percent employee turnover did not mitigate against the issuance of

a bargaining order remedy. It is this bargaining order remedy

portion of the Second Circuit's opinion and judgment which

Petitioner seeks to reverse.

The Second Circuit discussed this Court's decision in Gissel,

supra, which held that the NLRB has discretion to issue a bargain-

ing order remedy where serious unfair labor practices have made it

unlikely that a fair representation election could be conducted. To

justify a bargaining order, there has to be substantial danger that

current employees would be inhibited by the employer's prior

conduct. The NLRB must demonstrate that an election would

likely not reflect the uncoerced preference of the current bargain-

ing unit.*

*The significance and distinction between Gisse/ category one and two

conduct has never been defined by this Court. Since that decision, the Courts of

Appeal have differed between themselves and the NLRB on the meaning and

interpretation of the apparently different Gisse/ standards. This Court has not

explained how these possibly different tests should be applied, how much or

what type of NLRB discussion is required, and what consideration shouid be

given to abnormal and different changes in circumstances (including turnover)

between the commission of the violations, the hearing and the NLRB decision.

—<

The Second Circuit affirmed the NLRB’s finding that the

Company committed “hallmark” NLRA violations. As a result, a

bargaining order was appropriate. The fact that there was a 100

percent turnover did not mitigate against the issuance of a bargain-

ing order because the turnover did not establish that a fair election

could now be held. The following reasoning for this conclusion,

however, was insubstantial and is erroneous as a matter of law. The

Second Circuit stated:

“The new employees presumably are thus aware of the

employer’s past treatment-of its employees who chose to be

repesented by a union, and the Board was within the bounds

of discretion to view that history as making the likelihood of

an untainted election remote.” Court of Appeals Decision

(App. p. A-10) (emphasis added).

The Second Circuit’s presumption is unwarranted. This con-

clusionary language also totally disregards and is contrary to the

record. Beyond that, knowledge alone would not establish that a

fair election cannot be held. As NLRB Chairman Dotson stated in

his dissent, the record failed to establish the impact of the violations

on the new work: force.

Finally, the Second Circuit erroneously concluded that a

bargaining was warranted because the turnover was caused by the

Company's unfair labor practices (App. p. A-10). The Court relied

on its belief that the offers of reinstatement were not made in good

faith (App. p. A-I1). However, these conclusions contradict the

NLRB’s and Second Circuit's other findings. The June 1983 offers

of reinstatement were made a short four months after the

employees were discharged and before the NLRB conducted its

hearings. Further, whether or not the offers were properly

motivated, they certainly were validly made and refused. Indeed.

based on these offers, the NLRB cut off the back pay and did not

order reinstatement of the three employees.

In these circumsta*e#s, the turnover was not of the employer's

making. but the empioyees’. The unfair labor practices did not

cause the turnover once valid offers of reinstatement were made

and refused. Accordingly, the Second Circuit was wrong when it

concluded that the employee turnover was of the Company's

making and did not justify withholding a bargaining order

remedy.

REASONS FOR GRANTING THE WRIT

The Need for Clarification of Gissel

A Writ of Certiorari should be granted because this case raises

serious and important questions which recur with frequency

before the NLRB and federal Courts of Appeal. Our case also

raises crucial issues of federal labor law left unanswered by this

Court in Gissel, supra. Moreover, the Courts of Appeal are in

conflict with eachother and the NLRB over the correct standard

to be applied before the NLRB imposes a bargaining order. More

particularly, this Court must explain Gisse/ and decide finally the

correct standard for imposing bargaining orders, whether unusual

and abnormal turnover is a mitigating circumstance to consider

and the degree and type of discussion required of the NLRB.

This need is highlighted by the NLRB’s decision in Chandler

Motors, Inc., 236 NLRB 1565, 1566, fn. 8 (1978), where the NLRB

stated:

We have deemed it necessary in this case to set forth in

detail the reasons why we find it appropriate to grant a

Gissel bargaining remedy, rather than to adopt and rely

on the findings of the Administrative Law Judge. How-

ever, we do not thereby accede to the position of the U.S.

Court of Appeals for the Third Circuit in such cases as

NLRB vy. Armcor Industries, 535 F.2d 239 (3rd Cir.

1976) and Kenworth Trucks of Philadelphia, Inc. v.

NLRB, 580 F.2d 55 (3rd Cir. 1978). With all deference to

the court, we believe that the administration of the Act,

for which we are responsible, requires that we await a

final disposition by the Supreme Court of the issue in

order to resolve the conflict with other circuits on this

important issue. We wish to make it clear that our

adherence is intended as nothing more than respectful

disagreement with the view of the Third Circuit on the

matter as an attempt to protect, until the conflict is

resolved by the Supreme Court, what we consider to be a

substantial legal issue.

Further, in Regency Manor Nursing Home, 275 NLRB No. 171

(1985), Member Dennis stated in her concurring opinion:

“Former Chairman Miller observed more than a

decade ago. and it remains true today, that no decisional

task ‘has more perplexed this Board, or confounded the

courts which review our decisions,” than determining

‘whether an order to bargain is an appropriate remedy

for employer interference with rights protected by

Section 7 of the Act.”

“The Board has not made its perplexing task any less

difficult by its proclivity for issuing or not issuing

bargaining orders ‘without rhyme, reason or differ-

entiating factors other than ... conclusory statements’.

The result has been inconsistent decisions, arbitrary

results, and repeated circuit court refusals to enforce

Board bargaining orders on the ground that they lack

reviewable standards and analysis.” Slip up., at p. 5-6.*

*See also, Marchese Metal, 270 NLRB 293 (1984). where each Board member

expressed a different view concerning when bargaining orders are appropriate.

p 8 : £ p

iQ

In John Cuneo, Inc, v. NLRB, 459 U.S. 1178 (1983), denving

cert., 681 F.2d 11 (D.C. Cir. 1982), this Court denied certiorariina

bargaining order case. However, as the Honorable Judge

Rehnquist stated in his dissenting opinion:

“The Court spoke plainly in Gissel, however, em-

phasizing that in addition to finding that the employees’

union preference would be better protected, before a

bargaining order is issued it must be determined that ‘the

possibility of erasing the effects of past practices and of

ensuring a fair election (or a fair rerun) by the use of

traditional remedies though present, is slight’...”

“The so-called Gisse/ bargaining order was never

intended to be used routinely. It isa remedy designed for

cases where traditional remedies are insufficient. Since

in this case the bargaining order has been sanctioned

without a finding that the special circumstances required

hy Gissel exist, we should determine whether this newly

adopted approach is a proper one.” 459 U.S. at 1181.

{Emphasis added. }

The NLRB’s and Second Circuit's Application

of an Erroneous Standard

In our case, the NLRB’s and Second Circuit's decisions are faulty

because they are premised on the erroneous analysis that the crucial

issue is how badly the employer acted and whether he should be

rewarded or punished for his conduct.* In Gisse/, this Court stated

that the appropriate standard is whether a fair election can be

conducted involving the current work force. Thus, by applying the

wrong test, the Second Circuit and NLRB ignored the statutory

rights of the new employees.

*Even applying this standard, the NLR Band Court findings were wrong. (See

discussion, infra.)

An employer is not obligated to recognize and bargain with a

union merely upon a showing of authorization card majority or

other evidence of majority short of a NLRB certification. An

employer may refuse to bargain and wait until the union files fora

NLRB-conducted secret ballot representation election. It need not

respond in any fashion to a demand for recognition. Linden

Lumber Division, Sumner & Co. v. NLRB, 419 U.S. 301, 310

(1974). However, a bargaining obligation may be imposed on an

employer by means other than an NLRB conducted election.

Gissel, supra.

If an employer, presented with a demand for recognition

supported by actual majority support of unit employees, responds

by committing exceptional, outrageous unfair labor practices of

sufficient severity to have made a fair election impossible (category

!) or less pervasive cases which nevertheless make the holding of a

fair election likely, the NLRB. in its discretion, may find as a

remedy that the employer has waived its right to an election and

must bargain with the union. Gissel, 395 U.S. at 610. 614.* See,

e.g., Trading Port, Inc., 219 NLRB 298, 300, 301 (1975). Bur see,

Gourmet Foods, 270 NLRB 578 (1984). (NLRB lacks authority to

issue a bargaining order in the absence of a majority.)

*The differences between the two categories have not fully been explained. In

our case, the Second Circuit did not categorize the untair labor practices except

to call them “hailmark™ violations. However. naming them does notexplain why

a fair election cannot be held in the current bargaining unit.

In certain cases, the NLRB and courts have held that violations

such as threats of loss of employment and discharge of union

adherents in violation of Section 8(a) (3) of the NLRA warranted

the issuance of a bargaining order. However, also relevant is

whether the unfair labor practices are pervasive—that is, extensive

and effective throughout the entire voting unit rather than those

unknown to a large group of employees in the unit.* NLRB v.

Jamaica Towing, Inc., 632 F.2d 208, 213 (2nd Cir. 1980). Accord,

Gissel, 395 U.S. at 614; NLRB v. Solboro Knitting Mills, Inc., 572

F.2d 936, 944 (2d Cir.), cert. denied 439 U.S. 864 (1978). Simply

calling a violation “hallmark” is not enough of a justification.** It

is also especially important for the NLRB to carefully articulate its

reasons for a bargaining order, where, as here, one Board member

dissents. NLRB v. J. Coty Messenger Service, Inc., 763 F.2d 92, 100

(2d Cir. 1985).

The NLRB must include in its analysis of the propriety of issuing

a bargaining order an examination of subsequent circumstances,

such as a change in the employer’s management, turnover in the

work force and the passage of time. Indeed, as is relevant here, the

rights of subsequently hired employees to make their own choice

whether to be represented by a union must be considered. VLRBv.

Knogo Corp., supra, 727 F.2d at 60; NLRB v. Jamaica Towing,

*An unanswered question ts whether this principle applies to the employees in

the former work force or the new one which would vote if an election were

directed when the NLRB issues its decision.

** The Second Circuit stated in VLRBv. Pace Oldsmobile.

“Moreover, the Board's statement that substantial turnover does

not militate against a bargaining order where the employer has

engaged in ‘hallmark violations’ is wrong as a matter of law.”

Inc., supra, 632 F.2d at 214.*

Application of the Foregoing Principles

It is undisputed that in our case, all three alleged discriminatees

were offered and refused reinstatement prior to the NLRB hearing.

The NLRB did not order reinstatement of these former employees.

In addition, the record failed to establish (a) continuity of the work

force; (b) prior, subsequent or other unlawful conduct; (c) that

replacements were asked about their union sentiments; (d) that

replacements expressed any interest in the union; or (e) that current

employees have any knowledge of the union proceedings. These

findings were observed by Chairman Dotson in our case and

parallel the Second Circuit's findings in NLRB v. Pace Oldsmobile,

Inc., supra, where a bargaining order remedy was denied enforce-

ment. Nevertheless, in our case the NLRB majority imposed a

bargaining order and the Second Circuit enforced the NLRB’s

order.

In light of the record concerning the current work force, it is

evident that the NLRB and Second Circuit ignored Gisse/ and

applied an inappropriate test when they concluded that a bargain-

ing order remedy was appropriate. The Second Circuit and NLRB

did not adequately explain the standard they applied and why any

presumption created by the violation was not rebutted by the

record. Neither the NLRB nor the Second Circuit discussed the

different Gisse/ categories of unlawful conduct and what they

mean. Nor did they provide a rational basis for issuing a bargain-

ing order.

*Compare controlling Second Circuit opinions with the tollowing cases

refusing to consider employee turnover: VL RB v. Horizon Air Services, 761

F.2d 22 (Ist Cir. 1985); VLRBv. Kevstone Pretzel Bakery, Inc., 696 F.2d 257

(3rd Cir. 1982); Justak Bros. & Co. v. VRB, 664 F.2d 1074 (7th Cir. 1981);

Leggs Products Inc., 619 F.2d 1337 (9th Cir. 1980). Bur see. VL RBwv. Western

Drug, 600 F.2d 1324 (9th Cir. 1979).

14

In our case, the NLRB and Court ignored the current work force

when they imposed a bargaining remedy. They disregarded the lack

of impact of the unlawful conduct on the new work force as fully

explained by Chairman Dotson. The sole reference made to the

new work force was the erroneous presumption that they knew of

the past conduct. Beyond that, the Court did not discuss or even

consider how mere knowledge would have an impact or would

prevent the holding of a fair election. There is absolutely no expla-

nation why a fair election cannot be held now in the new work force

which was not employed when the violations occurred and which

has never. indicated any interest in union reprsentation. See

generally Gourmet Foods, supra. \n these circumstances, the

NLRB and Second Circuit have not articulated a rational basis for

imposing a bargaining order. Further, they have engaged in a

flawed analysis of when to issue bargaining order remedies. Based

on the foregoing, a Writ of Certiorari must be granted.

Beyond the foregoing, the consequences of employee turnover

must be examined by this Court. In the first instance, the NLRB

and Second Circuit do not agree on the effect of employee turn-

over in deciding bargaining ord*r cases.* Nor do the various

Courts of Appeal agree.**

Unlike our case, the Ninth Circuit has expressed a contrary view

concerning extreme turnover. That Court has issued bargaining

orders despite employee turnover. See NLRBv. LB Foster Co., 418

F.2d | (9th Cir. 1969). However, in NLRB v. Western Drug, supra.

the Ninth Circuit denied enforcement of a Board bargaining order

where, as here, the three bargaining unit employees (who were not

discharged) resigned prior to the NLRB hearing. Like our

situation, the Company did not delay to take advantage of the

*See v.g.. NLRB v. Pace Oldsmobile, supra.

**See Cases cited on page | 3.

15

passage of time and the record did not establish that the employer

would continue to violate the NLRA. Accordingly, a bargaining

order remedy was not appropriate. This difference concerning an

important legal principle must be decided by this Court.***

Finally, contrary to the Second Circuit’s conclusion in our case,

the former employees are not working now by their own choice.

Even if they were unlawfully discharged, they were cffered un-

conditional reinstatement which they voluntarily refused. Sig-

nificantly, the NLRB’s order does not provide for future rein-

Statement. In these circumstances, the Company's motive for

offering reinstatement is irrelevant. The Second Circuit's rationale

that “there was no meaningful offer of reinstatement” (see App., at

p. A-I1) applies another erroneous test. Whether or not the offers

were made in good or bad faith, they were valid and unconditional.

They were also refused. Had the offers not been valid, the NLRB

would not have cut off the employees’ back pay and would have

ordered them reinstated. In light of these NLRB findings, it is

apparent that no matter what the motive, the offers were valid. By

refusing such offers, the employees terminated their employment

by their own choice. The unfair labor practices did not cause the

termination of their employment. The termination was of the

employees’—and not the employer’s—making.

Thus, our case is like VLRBv. Fansteel Metallurgical Corp., 306

U.S. 240 (1939), where this Court refused to issue a bargaining

order because of employee turnover. There, as here. lawful termi-

***Our situation unlike traditional turnover cases. involves offers of rein-

statement which were made and refused shortly after the unlawful discharges

and before the NLRB's hearing. Thus. there is no reason to believe that the

Company delayed the proceeding in the hope of future turnover which would

Mitigate against the imposition of a bargaining order. Our case also involves

unusual, abnormal and extreme, rather than common turnover. Indeed. our

situation ts wholly different from Franks Bros. Co. VIRB, 321 U.S. 702. 705

(1944).

nations were the cause of the employee turnover. Analogously, in

our situation, the three former employees are not working by their

own choice. In these circumstances, contrary to the Second

Circuit’s conclusion, the turnover was not caused by the unfair

labor practice. Rather, it was caused by the employees’ subsequent

volutary termination of employment after they were offered rein-

statement. This turnover has resulted in six new uninvolved

employees who have shown no union interest. In these circum-

stances, to impose a bargaining order remedy would be to deny the

new employees their statutory rights and to punish them and

prevent them from making their own choice.

In sum the NLRB and Second Circuit did not sufficiently

articulate or apply-an appropriate standard or test to justify the

imposition of a bargaining order remedy. Nor did they correctly

consider the impact of the 100 percent employee turnover in the

current bargaining unit. Finally, the record did not establish why a

fair election cannot be held in the current all new unit. As a result,

the imposition of a bargaining order remedy was an abuse of

discretion by the NLRB. In light of the foregoing, and to resolve

these issues and the conflict between and among the NLRBand the

Courts of Appeal, it is necessary that this Court review the Second

Circuit’s opinion and current NLRB laws in this area.

aS be

17

CONCLUSION

For all the foregoing reasons, it is respectfully submitted that this

petition for a Writ of Certiorari be granted.

Dated: Great Neck, New York

August 8, 1986

Respectfully submitted,

Joel Spivak, Esq.

Spivak & Meiselas, Esqs.

1010 Northern Boulevard

Great Neck, New York 1102!

(516) 829-3939

A-|

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

i

No. 770—August Term, 1985

(Argued: January 27, 1986 Decided: May 30, 1986)

Docket No. 85-4157

—

NATIONAL LABOR RELATIONS BOARD,

Petitioner,

—_—V—

ELI GORDON, GERALD TILLINGER and SEYMOUR

TILLINGER, A COPARTNERSHIP d/b/a/ BALSAM

VILLAGE MANAGEMENT COMPANY,

Respondents.

Before:

MESKILL, NEWMAN, and KEARSE,

Circuit Judges.

+

Petition by NLRB for enforcement of bargaining order

entered on ground that employer had committed unfair

labor practices, in violation of §§ 8(a)(1) and (3) of the

3751

A-2

National Labor Relations Act, 29 U.S.C. §§ 158(a)(1)

and (3), by threatening to discharge and discharging its

three maintenance employees.

Board order enforced.

MARGARET BEZOU, Washington, D.C.

(Rosemary M. Collyer, General Counsel,

National Labor Relations Board, John E.

Higgins, Jr., Deputy General Counsel,

Robert E. Ajilen, Associate General

Counsel, Elliott Moore, Deputy Associ-

ate General Counsel, Elinor Hadley

Stillman, Michael David Fox, Attorneys,

Washington, D.C., on the brief), for

Petitioner.

LAWRENCE SOLOTOFF, Great Neck, New

York (Joel Spivak, Solotoff & Spivak,

Great Neck, New York, on the brief), for

Respondent.

* i alk tae

aes

KEARSE, Circuit Judge:

Petitioner National Labor Relations Board (the

‘‘Board’’) seeks enforcement of its order issued on j

December 14, 1984, finding principally that respondents

Eli Gordon, Gerald Tillinger, Seymour Tillinger, and

their partnership, Balsam Village Management Company :

(collectively the ‘‘Company’’), had committed unfair

3752

A-3

labor practices in violation of §§ 8(a)(1) and (3) of the

National Labor Relations Act (the ‘‘Act’’), as amended,

29 U.S.C. §§ 158(a)(1) and (3) (1982), by threatening to

discharge and discharging three Company employees for

their pursuit of union membership. The Board order

required the Company principally to cease and desist

from interfering with its employees’ statutory rights and

to bargain with Local 32B-32J, Service Employees In-

ternational Union, AFL-CIO (the ‘‘Union’’), as the bar-

gaining representative of its employees in an appropriate

unit. In opposition to the petition for enforcement, the

Company. contends principally that the Board’s finding

that it engaged in unfair labor practices should be over-

turned and that, in light of 100% employee turnover in

the bargaining unit, a bargaining order is inappropriate.

We reject both contentions and grant the petition for

enforcement.

I. BACKGROUND

Prior to February 1983, the Company employed a

three-person maintenance crew, consisting of Carlos

Casal, Mario Aguila, and Daniel Santos, for the care of a

45-building apartment complex operated by the Com-

pany. Each of the three had been employed by the

Company for a number of years without any substantial

complaint as to their performance. According to the

testimony of these employees, which was expressly cred-

ited by the Board’s Administrative Law Judge (‘‘ALJ’’),

the following events occurred in early 1983.

A. The Events

In January 1983, Casal, Aguila, and Santos joined the

Union and signed cards authorizing the Union to repre-

3753

A-4

sent them in collective bargaining. The Union mailed

receipts for the employees’ initiation fees to Casal at the

Company’s office, mistakenly believing this to be Casal’s

home address. The receipts, in an envelope showing the

Union’s name and return address and bearing the words

“ENCLOSE YOUR UNION BOOK! DO NOT SEND

CASH”’ in capital letters, arrived at the Company’s office

not later than January 27 or 28, when Casal saw the

envelope on Gerald Tillinger’s desk.

The envelope was not given to Casal until Wednesday,

February 2./-On February 4, Casal was summoned to a

meeting with Gerald Tillinger and Gordon and was told

that the Company could not afford unions. Casal was

instructed to try to persuade Aguila and Santos to leave

the Union.. When Casal replied that Aguila and Santos

would not renounce the Union, Gordon instructed him to

tell them that unless they renounced the Union ‘‘they will

lose their jobs. They have families to support and I’m

sure they don’t want to lose their jobs. . . . [E]xplain to

them that there will be no job if they join the Union.’’

Gordon also told Casal that if Casal did not cooperate

and get them out of the Union, the Company would have

to ‘‘accept’’ Casal’s ‘‘resignation.’’

Casal conveyed Gordon’s message to Aguila and San-

tos, both of whom told Casal they would remain in the

Union. When Casal relayed this response to Gordon and

added that he too would remain in the Union, Gordon

told Casal, ‘‘if you’re going to stick to the union, .. .

then I accept your resignation also.’’ He continued to

urge Casal to renounce the Union himself and to persuade

the other two to renounce it also. Later that afternoon,

when Aguila and Santos went to the Company office to

3754

sl}?

Ptccrve* Sieh Reda ed dae ak haat shiek ei tid

ered BAe gh cat a

A-5

because of their union membership. He found that the

Company had violated §§ 8(a)(1) and (5) of the Act by

refusing to recognize and bargain with the Union. He

recommended that the Company be ordered (1) to make

the discharged employees whole, (2) to cease and desist

from interfering ‘vith employees’ exercise of their statu-

tory rights, and (3) to bargain with the Union upon

request.

In a Decision and Order dated December 14, 1984

(‘‘Board Decision’’), the Board unanimously agreed with

the ALJ that the-Company had violated §§ 8(a)(1) and (3)

of the Act and adopted the ALJ’s first two recommenda-

tions. With one member dissenting, the Board concluded

that these violations warranted the issuance of a ‘‘Gissel’’

order, see NLRB vy. Gissel Packing Co., 395 U.S. 575

(1969), requiring the Company to bargain with the

Union. The Company was ordered principally to cease

interfering with employees’ exercise of their statutory

rights, and to bargain with the Union. The Board peti-

tions for enforcement of this order.

II. DISCUSSION

In opposition to the Board’s petition for enforcement

of its order, the Company contends principally (1) that

the finding that the Company unlawfully threatened or

discharged the three workers was unwarranted, and (2)

that a bargaining order was improper. We find no merit

in either contention, and we enforce the order.

The Company’s challenge to the findings that it

engaged in unfair labor practices by threatening to dis-

charge and discharging Casal, Aguila, and Santos because

of their adherence to the Union need not detain us long.

3756

A-6

pick up their pay checks, they were discharged—told by

Gordon that their jobs were being eliminated.

The Company’s version of these events, presented prin-

cipally by Gordon, was that Gordon told Casal that

Aguila and Santos would be discharged because the

Company did not need employees to do cleaning, and

that because of this, Casal resigned. Gerald Tillinger,

who, according to both sides, was present during the

pertinent events, did not testify. The ALJ found Gordon

to be ‘‘a poor quality witness.’’

On February 8, the discharged employees began picket-

ing the Company’s premises. On February 25, Gordon

approached them on the sidewalk and told them that they

could return to their jobs if they renounced the Union.

They continued to picket until mid-April. In the mean-

time, the Union sent the Company a request to meet and

bargain; the Company did not respond. The Company

proceeded to hire six persons to perform the work of the

discharged employees. One was hired in February, two in

early April, and the others in June and August. None of

the replacements was a union member.

On June 8, the Company offered reinstatement to

Casal, Aguila, and Santos. All declined.

B. The Board’s Order

Unfair labor practice charges were filed by the Union,

and a complaint was issued by the Board’s Acting Re-

gional Director. Following a hearing, the ALJ found the

facts as set forth above and concluded that the Company

had violated §§ 8(a)(1) and (3) of the Act by threatening

to discharge the three employees unless they renounced

their support for the Union and by discharging them

3755

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Li. eee ee! a | eee en. eo ee

aw gata BL Sal RPA IE RY siCe MRLs

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A-7

The Board’s findings that an employer has committed

unfair labor practices in violation of the Act are entitled

to affirmance on review if they are reasonable and sup-

ported by substantial evidence in the record as a whole.

Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951); NLRB v. Pace Oldsmobile, Inc. , 681 F.2d 99, 100

(2d Cir. 1982) (per curiam) (‘‘Pace P’’). When its findings

are based on the ALJ’s assessment of the credibility of

the witnesses, they will not be ‘‘overturned unless they are

‘hopelessly incredible’ or they ‘flatly contradict’ either the

‘law of nature’ or ‘undisputed documentary testi-

mony.’ ’’ NLRB v. J. Coty Messenger Service, Inc., 763

F.2d 92, 96 (2d Cir. 1985) (quoting NLRB v. American

Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir. 1982), cert.

denied, 461 U.S. 906 (1983)).

In the present case, the employees testified to the events

as described in Part I above. Their testimony, which was

supported by the timing and sequence of events not in

substantial dispute, was neither inherently incredible nor

disputed by any documentary evidence, and it was ex-

pressly credited by the ALJ. The contrary testimony by

Gordon, discredited by the ALJ, and the Company’s

office manager was insufficient to require the ALJ to

disbelieve the versions of the events testified to by Casals,

Aguila, and Santos. In light of all the testimony, there

was plainly substantial evidence in the record to support

the Board’s findings that the Company threatened to and

did discharge its three maintenance employees on account

of their union membership.

The Company argues that a bargaining order is none-

theless inappropriate principally on the grounds that (1)

the Board did not adequately articulate its basis for

issuing a Gissel bargaining order, and (2) there has been

3757

A-8

100% turnover in the maintenance staff, with none of the

new employees having expressed an interest in the Union,

and that this turnover was caused by the discharged

employees’ rejection of the Company’s offers of rein-

statement. These arguments have no merit.

Under NLRB y. Gissel Packing Co., 395 U.S. 575, the

Board has discretion to order an employer to bargain with

a union not theretofore recognized by the employer if the

Board reasonably concludes that serious unfair labor

practices by the employer have made it unlikely that a

representation election can be conducted free of the taint

of those practices. Because a Gissel-type bargaining order

may impose on the employees a union they have not

actually chosen to represent them, we require that such an

order be entered ‘‘ ‘{[o]nly where there is a substantial

danger that employees will be inhibited by the employer’s

conduct from adhering to the union,’ ’’ NLRB v. Pace

Oldsmobile, Inc., 739 F.2d 108, 110 (2d Cir. 1984) (‘‘Pace

IT’) (quoting J.J. Newberry Co. v. NLRB, 645 F.2d 148,

154 (2d Cir. 1981)), and ‘‘ ‘only when the Board demon-

strates that an election is unlikely to reflect the uncoerced

preference of the bargaining unit,’ ’’ Pace IJ, 739 F.2d at

110 (quoting NLRB v. Marion Rohr Corp., 714 F.2d 228,

230 (2d Cir. 1983)). Fundamental intrusions into em-

ployee rights—‘‘ ‘hallmark’ violations’’—‘‘will support

the issuance of a bargaining order unless some significant

mitigating circumstance exists.’” NLRB v. Jamaica Tow-

ing Inc., 632 F.2d 208, 212 (2d Cir. 1980). Threats of

discharge of union adherents are hallmark violations, id.

at 212-13; employee turnover may be a mitigating circum-

stance, NLRB v. Windsor Industries, Inc., 730 F.2d 860,

867 (2d Cir. 1984).

Further, we have refused to enforce Gisse/ bargaining

orders in cases where the Board has not set forth findings

3758

ath Wee Genkacd, oda kaa. -

Maid ne i tieel” Ln.” ken cee

nee

A-9

and analysis that support the imposition of such an order.

See, e.g., Pace IT, 739 F.2d at 110-12; NLRB v. Heads &

Threads Co., 724 F.2d 282, 289 (2d Cir. 1983); Pace /,

681 F.2d at 101-02. We consider it sufficient, however, if

the ALJ has provided such findings and analysis and the

Board has indicated its adoption of them. See NLRB v.

Windsor Industries, Inc., 730 F.2d at 866; NLRB v.

Horizon Air Services, Inc., 761 F.2d 22, 24 n.1 (1st Cir.

1985); Kenworth Trucks of Philadelphia, Inc. v. NLRB,

580 F.2d 55, 62-63 (3d Cir. 1978). All of the requirements

for enforcement of a Gissel order have been met here.

The rationale for the present order was spelled out in

the Board’s decision principally in its adoption of the

ALJ’s decision. The ALJ noted, inter alia, that at no time

had the Company challenged the status or authority of

the Union to represent the employees, that it had deliber-

ately flouted the Act for the express purpose of avoiding

its statutory bargaining obligation, and that its actions

had a continuing ‘‘restraintful [sic] and coercive’’ effect

after the discharge of the old employees and the hiring of

the new. The Board adopted the ALJ’s findings and

reasoning, elaborating as follows:

For the reasons the judge stated, we agree that a

Gissel bargaining order is clearly warranted to rem-

edy the Respondent’s unfair labor practices, which

the judge aptly described as the ‘‘unlawfui discharge

of an entire bargaining unit, lock, stock and barrel,

for the express purpose of avoiding the statutory

bargaining obligation.’’ We also agree with the

judge’s rejection of the Respondent’s argument that

a bargaining order should be denied becauss all three

discriminatees declined reinstatement, and thus there

has been substantial ‘‘employee turnover.’’ As the

3759

judge pointed out, the Respondent’s contention has

‘*a hollow ring’’ because the ‘‘employee turnover”’ in

this case was a direct and obvious product of the

Respondent’s own unlawful conduct.

Board Decision at 1-2 (footnotes omitted). This sufficed

to explicate the Board’s decision to issue a Gisse/ bargain-

ing order.

We find no abuse of discretion in the conclusions of the

Board and the ALJ that such an order was appropriate.

The Company’s threats to discharge Aguila and Santos if

they did not repudiate the Union, its threat to discharge

Casal if he did not persuade them to do so and did not

renounce the Union himself, and its discharge of the men

upon their refusals, were plainly ‘‘hallmark’’ violations.

The fact that the Company’s maintenance work force has

had a 100% turnover is not, in the circumstances of this

case, a mitigating factor. First, the fact that there has

been such turnover does not necessarily mean that a fair

election could now be held. Three of the six new employ-

ees were hired while the discharged employees were pick-

eting the Company. The new employees presumably are

thus aware of the employer’s past treatment of its em-

ployees who chose to be represented by a union, and the

Board was well within the bounds of discretion to view

that history as making the likelihood of an untainted

election remote.

More important, the 100% turnover here is not a factor

that mitigates against a bargaining order because the

turnover was caused by the very unfair labor practices

sought to be remedied. It would defy reason to permit an

employer to deflect a Gisse/ bargaining order on the

ground of employee’ turnover when that turnover has

3760

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a ee

A-I1

resulted from the employer’s unlawful discharge of all of

the members of the bargaining unit.

Finally, we reject the Company’s contention that re-

sponsibility for the 100% turnover should be placed on

the discharged employees and not on the Company on the

premise the employees were offered, and declined, rein-

statement. There was no meaningful offer of reinstate-

ment here. Gordon’s first ‘‘offer’’ to the discharged

employees was conditioned upon their renunciation of the

Union. It plainly could not alleviate the unlawfulness of

the discharge, which was likewise bottomed on the em-

ployees’ refusal to renounce the Union. The June 1983

offers of reinstatement, made more than four months

after the employees were discharged, were so belated that

the Board was justified in not construing them as a good

faith attempt to rehire these men. The Company knew the

men had families to support; it had cited this fact in

initially threatening discharge. It was reasonable to expect

that they could not wait four months before seeking

alternative employment. Further, by the time these offers

were made, the Company had already hired three persons

to replace the three discharged employees. Accordingly,

the purported offers of reinstatement did not constitute a

mitigating circumstance sufficient to prevent issuance of a

bargaining order.

We have considered all of respondents’ arguments in

opposition to the petition for enforcement and have

found them to be without merit.

CONCLUSION

The Board’s order of December 14, 1984, is in all

respects enforced.

3761

DZDe

273 NLRB No. 66 D—2467

New York, NY

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

ELI GORDEN, GERALD TILLINGER AND

SEYMOUR TILLINGER, A COPARTNERSHIP,

d/b/a BALSAM VILLAGE MANAGEMENT

COMPANY

and Case 29—CA-10276

LOCAL 32B-32J. SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO

DECISION AND ORDER

On October 17 1983 Administrative Law Judge Stanley N.

Ohlibaum issued the attached decision. The Respondent filed

exceptions and a supporting brief.

The National Labor Relations Board has delegated its

authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in

light of the exceptions and brief and has decided to affirm the

ect is Ube Si oom sane aad

aa Me Net a nt A

ae ee Oe ee en eS tee

B-2

D—2467

judge’s rulings, findings,' and conclusions and to adopt the

recommended Order.

For the reasons the judge stated, we agree that a Gisse?

bargaining order is clearly warranted to remedy the

Respondent’s unfair labor practices, which the judge aptly

described as the “unlawful discharge of an entire bargaining

unit, lock, stock and barrel, for the express purpose of

avoiding the statutory bargaining obligation.’3 We also agree

with the judge’s rejection of the Respondent’s argument that a

bargaining order should be denied because all three discrimi-

natees declined reinstatement, and thus there has been

substantial “employee turnover.” As the judge pointed out,

the Respondent’s contention has “a hollow ring” because the

“employee turnover” in this case was a direct and obvious

product of the Respondent’s own unlawful conduct.

Our dissenting colleague claims that a bargaining order is

inconsistent with decisions of the Second Circuit. We

disagree. In its Jamaica Towing opinion,’ the court

specificaliy cautioned against “rewarding an employer for his

own misconduct,” and limited consideration of the turnover

factor to “cases where later relevant events are not of the

'The Respondent has excepted to some of the judge’s credibility findings. The

Board's established policy is not to overrule an administr«tive law judge’s

credibility resolutions unless the clear preponderance of all the relevant

evidence convinces us that they are incorrect. Standard Drv Wall Products, 91

NLRB 544 (1950), entd. 188 F.2d 362 (3rd Cir. 1951). We have caretully

examined the record and find no basis for reversing the findings.

>NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

‘We find it unnecessary to pass on the judge's alternative rationale for issuing

a bargaining order.

*NVLRB v. Jamaica Towing, 632 F.2d 208. 214 (2d Cir. 1980).

273 NLRB No. 66

D—2467

employer’s making.” Here, the “employee turnover” was “of

the employer’s making,” and withholding 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 Gisse/ bargaining

order be issued.°

SChairman Detson 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 VNLRBv. Pace

Oldsmobile. Inc., 739 F.2d 108 (2d Cir. 1984); NLRB v. Windsor Industries, 730

F.2d 860 (2d Cir. 1984); VLRBv. Knogo Corp., 727 F.2d 55 (2d Cir. 1984), and

cases cited therein. While recognizing the severity of the Respondent's mis-

conduct, 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 employees declined reinstatement to their former jobs.

Thus, there is no continuity in the Company's work force before and after the

unfair labor practices. Further, the record fails 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

attempted to organize the new employees. No showing was made that the

current employees discussed the Respondent's prior misconduct or that the

Respondent has engaged in further antiunion activity. In view of the circum-

stances of this Second Circuit case, Chairman Dotson finds a bargaining order

inappropriate.

am hel lB dog 1m

i bans Lire tak OE De chats AOI es

ORDER

The National Labor Relations Board adopts the recom-

mended Order of the administrative law judge and orders

that the Respondent, Eli Gordon, Gerald Tillinger and

Seymour Tillinger, a Copartnership, d/b/a Balsam Village

Management Company, New York, New York, its partners,

agents, successors, and assigns, shall take the action set forth

in the Order.

Dated, Washington, D.C. 14 December 1984

Donald L. Dotson, Chairman

Don A. Zimmerman, Member

Patricia Diaz Dennis, Member

(SEAL) NATIONAL LABOR

RELATIONS BOARD

JD-412-83

Brooklyn, NY

UNITED STATES OF AMERICA

BEFORE THE

NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

WASHINGTON, D.C.

ELI GORDON, GERALD TILLINGER

AND SEYMOUR TILLINGER, A

COPARTNERSHIP, d/b/a BALSAM

VILLAGE MANAGEMENT COMPANY,

Respondent,

and Case No. 29-CA-10276

LOCAL 32B-32J, SERVICE EMPLOYEES

INTERNATIONAL UNION, AFL-CIO,

Charging Party.

Meredith A. Fisher, Esq.,

Brooklyn, N.Y., for NLRB

General Counsel.

Joel Spivak, Esq. (Messrs. Solotoff & Spivak, Attorneys).

Great Neck, N.Y., for Respondent.

Michael Geffner, Esq. (Messrs. Israelson,

Manning & Raab). New York, N.Y., for

Charging Party

B-6

JD-412-83

DECISION

I. Preliminary Statement; Issues

OHLBAUM, Judge:—This proceeding |/ under the

National Labor Relations Act as amended, 29 U.S.C. 151 er

seq. (“Act”), was litigated before me in Brooklyn, New York,

on August I5 and 17, 1983, with all parties participating

throughout by counsel afforded full opportunity to present

evidence, arguments, and briefs (received on October 7, 1983).

Ail have been carefully considered.

The basic issues presented are whether Respondent

violated Section 8(a) (1), (3), and (5) of the Act by threatening

employees with discharge and other reprisals for joining or

supporting the Charging Party Union, by discharging (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 refusing to recognize and

bargain with the Union as the authorized collective bargain-

ing representative of Respondent’s employees. Respondent

denies all of these allegations.

Upon the entire record and my observation of the

testimonia! demeanor of the witnesses, | make the following:

|/ Based upon complaint issued April 5. 1983. by the Acting Regional

Director for NLRB Region 29, growing out of charge filed on February 18.

1983, by the above Union.

JD-412-83

FINDINGS AND CONCLUSIONS

II. Parties; Jurisdiction

At all material times, Respondent, a copartnership con-

sisting of Eli Gordon, Gerald Tillinger and Seymour Tillinger

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 representative year immediately

preceding issuance of the complaint, Respondent derived

gross revenues exceeding $500,000 in and from those business

operations; and, further therein, caused to be transported to

and received at its said premises for its use in said business,

goods and materials valued at over $5,000, purchased from

other enterprises in New York who in turn had purchased and

received them directly in interstate commerce from and

through other states.

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 thaf at all of those

times Charging Party Union has been and is a labor organi-

zation as defined in Section 2(5) of the Act.

ee, ee ee

B-8

JD-412-83

III. Alleged Unfair Labor Practices |

A. Facts as Found

Respondent operates and manages an apartment house

complex in Queens County, New York, covering some 7 city

blocks, consisting of 270 apartment units located in 45

6-family buildings. Prior to events to be described, 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 “superintendent” (but not a supervisor within the

Act’s definition, since he lacked authority over and had no

subordinates, and possessed no other characteristic of

supervisorship 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 ground (mowing lawns, keeping grass and walk-

ways debris-free, etc.) and general cleanup chores (hallways,

stairways and rails, hall ceilings, windows, doors, mailboxes,

vacuuming 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 around the summer of 1982, Mattie

Tillinger, wife of Respondent partner Seymour Tillinger, was

in overall charge and management of the housing project.

When she (Mrs. Seymour Tillinger) ceased functioning in that

2/ Some painting was occasionally done by one or the other of the foregoing

three employees, on their own time, for extra or separate pay.

JD-412-83

capacity, Respondent partner Eli Gordon commenced over-

seeing the project unt:l 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 bookkeeping, cor-

respondence, and related chores were handled by office

manager/ secretary Helen Lober in an office she shared with

Jerry Tillinger (and Gordon). Respondent partner Seymour

Tillinger has not taken an active part in Respondent’s

operations at the times here involved.

Because of dissatisfaction with the terms and conditions of

their employment (including a cutback in medical 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 utilized occasionally and

sporadically to assist with a chore), a part-time night watch-

man/ guard, and the office manager/sectetary), comprised

the entire workforce at the project. It was stipulated at the

outset of the hearing that these three employees constituted

the only employees in the bargaining unit alleged in the

complaint, a conventional 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 Poccio) of

the Charging Party Union in January, 1983 and, after

discussion 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

B-10

JD-412-83

understood) authorizing the Union to represent them in

collective bargaining. On January 25 or 26 the Union mailed

receipts for these initiation fees to Casal at the project (in the

mistaken belief that he lived there), although Casai lived off

the project premises. That mail, in a window envelope

showing the name of 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 up on the desk of Project Manager Jerry

Tillinger, where it was observed by Casal on January 27 or 28

(Thursday or Friday). The envelope, perhaps 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 February 4 (Friday) payday, two days

after the Union envelope 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 an hiatus from late 1980 to mid-1982 followed by

rehire and continuous employment since then. As testified by

3; Casal could not recollect one way or the other, since, as he testified. he was

considerably unnerved by the incident—/.e., delivery of the envelope bearing the

Union name, address(ed] to him, at the project office, clearly disclosing

connection with the Union.

JD-412-83

these three individuals, whom I credit based upon my close

observation of their testimonial 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 wniting stating any reason or basis for his

discharge, and unemployment insurance benefits 5/ to them

were applied for and paid without objection or protest from

Respondent.

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 Tillinger 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 [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.,

4, Some alleged correspondence from a very few alleged tenants out of the

very large number of tenants, produced by Respondent, details certain alleged

complaints to management. These. however (including nonreceipt 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 seemingiy 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

ascribabie 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 assigned 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 empioyee.

ee ee ee, See ee

B-!2

JD-412-83

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 resignation....” When Casal

explained to Gordon and Tillinger 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. ****if [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 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 [Ill] straighten it out with the men.” When

Casal reiterated, “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

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JD-412-83

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 Aguila 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 [are] not doing well and besides... [you]

don't speak English and we cannot use you for anything else.

[f you spoke English maybe we could try to put you doing

something else.”

Follqwing the discharge of these three employees on

February 4, the Union on February 7 formally requested to

meet and bargain with Respondent (GC Exh. 2), a request

received by Respondent on February 10 but to which

Respondent has at no time responded. On February 8, con-

tinuing until mid-April, the three discharged employees

picketed Respondent’s premises. During the course of this

picketing, replacement employees were observed 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.

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.

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JD-412-83-

It was stipulated at the trial that on June 8, 1983

Respondent offered the three employees here reinstatement,

which they declined.

**e * *

It is evident from the foregoing facts as found that General

Counsel has established a clear prima facie case of inhibitory,

restraintful, 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 and Respondent

learned about it. Respondent’s knowledge is clear not only

from its receipt of the unfortunately misdirected Union

envelope containing the receipts for the three employees’

initiation fees, but also, of course, from Gordon's remarks to

Casal, detailed above, importuning Casal to persuade his

fellows to drop out of the Union, on penalty of being

discharged.

Generai Counsel having established a prima facie case, the

burden shifts to Respondent to establish by a preponderance

of evidence that the discharges in question were not for

reasons violative of the Act. See N.L.R.B. v. Transportation

Management Corp., U.S., 113 LRRM 2857 (June 15, 1983).

It is accordingly necessary to address Respondent’s defenses.

B. Respondent’s “Defenses”

Respondent advances several contentions by way of

defense. Each is readily and simply answered.

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JD-412-83

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 required in the work they did,

and ignorance of English in no way affected their job per-

formance; 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 dis-

close) as to the statements, circumstances and events

surrounding the employees’ discharges on February 4.

Respondent also contends that the employees were dis-

~~. ee ee ee a ne

ee ee ee a ee eee Le eee ee ET

ee ene

B-16

JD-412-83

charged for inefficiency or inability to do the needed work.

This also is belied by their long-term employments, during

which Respondent had expressed no dissatisfaction with

their work. 7/

As for other “defenses” darkly hinted at in Respondent's

opening statement, suffice it to say that they did not emerge

from that darkness at the trial, and that they therefore con-

tinue to be invisible and not deserving of mention, much iess

credit. Perhaps it is fair, however, to regard them as reflective

of the fictive or pretextual nature of the other “reasons”

contrived to attempt t« justify the discharges of under the

circumstances shown.

Finally, it is to be observed that Jerry Tillinger, although

deeply implicated in events that have been described, elected

without explanation not to testify.

*x** * *

Under these circumstances, Respondent having failed by a

preponderance of the evidence to overcome General

Counsel’s prima facie case (Transportation Management,

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

7’ | have already commented on the insignificant. irrelevant, or inconclusive

nature of the few paltry “complaints” of a small number of tenants, many if not

most of which related to matters not within these employees’ duties or

competence. and as to which there was no proof that they were communicated

to these emplovees for their action, nor that they were not attended to by them.

Supra n. 4.

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JD-41 2-83

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 refusing to bargain with Charging Party Union as

the duly authorized collective bargaining representative of an

appropriate bargaining unit of Respondent’s employees,

Respondent has violated and continues to violate Section

8(a)(5) and (1) of the Act.

Upon the foregoing findings and the entire record, | state

the following:

IV. Conclusions of Law

A. Jurisdiction is properly asserted here.

B. By threatening to discharge and by discharging its

employees Carlos Casal, Mario Aguila, and Daniel Santos, at

the times and under the circumstances described and found in

“III,” supra, Respondent has discriminated in regard to the

hire, tenure, and terms and conditions of employment of its

ernployees, and has, further, 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.

C. By failing and refusing to recognize and bargain col-

lectively with Local 32B-32J, Service Employees Interna-

tional Union, AFL-CIO, as the duly designated bargaining

representative of all of Respondent’s employees in the

following appropriate collective bargaining unit, under the

circumstances described and found in “III,” supra,

Respondent has violated Section 8(a) (5) and (1) of the Act: —

B-18

JD-412-83

All building service employees, including porters,

handymen and superintendents employed by

Respondent at its Queens facility, exclusive of all

office clerical employees, guards, and all super-

visors as defined in Section 2(11) of the Act.

D. The aforesaid unfair labor practices and each of them

have affected, are affecting, and unless permanently

restrained and enjoined will continue to affect, commerce

within the meaning of Section 2(6) and (7) of the Act.

V. Remedy

Respondent having been found to have discharged

employees, after threatening to do so, and to have interfered

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 variety, be ordered to

cease and desist from continuing or other such violations and

to make each of the employees whole through payment of

backpay and interest computed as explicated by the Board in

F.W. Woolworth Company, 90 NLRB 289 (1950), Jsis

Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida

Steel Corporation, 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, rein-

statement on June 8, 1983, and that with regard to the

calculation of backpay General Counsel seeks no more for the

three by way of recompense than the backpay due them until

then. Respondent should also, as usual, be required to

expunge any relevant deleterious references to these

employees from its records; to preserve and open its books

JD-412-83

and records to the Board’s agents for computation and

compliance determination purposes; and to post the con-

ventional informational Notice to Employees.

There arises the additional question of whether, as 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 well as at the time of the Union’s

demand for recognition and collective bargaining, the three

employees here constituted the entire, that is to say 100% of,

the 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 questioned by Respondent—indeed, to the

contrary, Respondent insisted that the three employees and

Union members relinquish their Union membership as a

condition 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 (Section 2{3]). Since the three unlawfully dis-

charged 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 bargaining 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 confrontation,

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JD-412-83

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 thereof) was required? Thus, there

was no question in Respondent’s mind of the Union’s status

as the duly designated bargaining representative of a// of the

unit employees at the time the Union sought to bargain on

their behalf. The fact that, on top of its discharge of these

employees (or joining the Union and seeking to bargain

collectively, Respondent later replaced them with a new and

larger crew, does not change this. We have been long and

consistently been instructed by the Supreme Court that mere

turnover—even, unlike here, where wholly legitimate—does

not oust a union as bargaining representative. 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 n. 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

bargaining obligation was perfected, the three employees

here had left of their own accord and had been replaced by

non-Union employees, the existing bargaining obligation

would not thereby have been erased. Gisse/ and other cases

cited supra. It is no different just because the three here

subsequently declined reinstatement, for reasons good and

sufficient to them, such as disinclination to give up other jobs

they had sinc. obtained. An employer cannot be permitted

(as Respondent here attempted to do) to disestablish a

bargaining unit through the simple expedient of discharging

all of its members. Such a result would constitute an

JD-412-83

intolerable affront to the basic purposes of the Act. And since

the effects of Respondent’s actions remain restraintful and

coercive, they continue to require remediation so that

deliberate flouting of core purposes of the Act not be

encouraged by being suffered to go unremedied. 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 situation, resort to

Gissel to support an electionless bargaining order is un-

necessary, for to withhold a bargaining order in this situation

would leave the Section 8(a) (5) violation wholly un-

remedied. 9/ However, even under Gisse/ a bargaining order

would be appropriate under the circumstances shown—/.e.,

unlawful discharge of an entire bargaining unit, lock, stock

and barrel, for the express purpose of avoiding the statutory

bargaining obligation. In Gissel, supra, the Supreme Court

described the conditions where an electionless bargaining

order is appropriate under the Act. The instant case fits

comfortably within the Court’s instructions there. | find that

Respondent’s described unlawful actions in discharging the

three 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 and guarantees,

8) For this reason (in addition to the Section 8{a] [5] violation described

above), it matters not that the three unlawfully discharged employees do not

desire reinstatement. since if no effective remedy is provided Respondent will

have succeeded in its deliberate flouting of the Act.

9; Neither a bargaining demand (or petition) nor a Section 8(a) (5) violation

is a prerequisite fora Gisse/ electionless bargaining order. Gisse/, supra at 610

and 614.

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JD-412-83

that it had and will “have the tendency to undermine majority

strength and impede the election processes” (Gisse/, supra at

614); that it was and continues 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 ensuring 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 614-15); and that there is “insufficient indication that

an election ... would definitely be a more reliable test of the

employees’ desires than the card count taken before the unfair

labor practice occurred” (id. at 616). 10/

An employer who discharges the entire bargaining unit

because its members have designated a union to bargain

collectively for them, is hardly in a position to complain 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. |1/

Respondent’s current tongue-in-cheek protestation against

an electionless (“Gisse/”) bargaining order on the ground that

it would deprive its present employees of the “free choice” of

bargaining representative has a hollow ring, since it was

10; See also Amsterdam Wrecking & Salvage Co., inc., 196 N.L.R.B. 113

(1972), enforced, 472 F.2d 153 (2d Cir. 1973); Medley Distilling Company, 187

N.L.R.B. 84 (1970), enforced, 453 F.2d 374 (6th Cir. 1971): Gibson Products

Company, 185 N.L.R.B. 362 (1970).

11, As has been pointed out, discriminatory discharge “goes to the very heart

of the Act” (4.J/. Arajewski Mfg. Co., 180 N.L.R.B. 1071: 1970) and is the

“surest method of undermining a union’s majority of impeding an election

process” (VLRBv. Sitton Tank Company, 467 F.2d 1371, 1372 [8th Cir. 1972]):

and, accordingly, a bargaining order is upon that basis alone warranted.

JD-412-83

Respondent itself who, by discharging all of its union

employees, attempted to deprive them of that free choice

through an uncoerced and fair election without unlawful

interference on its part. Respondent’s current argument,

purportedly “seek[ing] to vindicate the rights of his

employees” (Brooks v. NLRB, 348 U.S. 96, 103 [1954]; see

also ILGWU [Garwin Corporation] 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 Respondent had not deliberately terminated its

union employees and replaced them with nonunion

employees, thereby deranging the statutory election system

by putting a heavy hand on the election scales. Respondent

has changed the electorate to one of its own design. Its

position is thus at odds with the principles enunciated by the

Supreme Court 14 years ago in Gisse/. Respondent’s

contention 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 empioys any union personnel,

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, upon Gisse/ principles as well as because of

Respondent’s flat-out violation of Section 8(a) (5), a bargain-

ing order is warranted and required here, and should be

issued.

In view of the serious, egregious nature of Respondent’s

violation, thrusting at “the very heart of the Act” 12/,

12, A.J. Krajewski Mfg. Co., 180 N.L.R.B. 1071 (1970).

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JD-412-83

Respondent should also be required to cease and desist from

any violation of the Act. 13/

VI.

Upon the foregoing findings of fact, conclusions of law,

and the entire record in this proceeding, and pursuant to

Section 10(c) of the Act, I hereby issue the following: 14/

ORDER

IT IS HEREBY ORDERED, that Respondent Eli

Gordon, Gerald Tillinger and Seymour Tillinger, a co-

partnership, doing business as Balsam Village Management

Company, and their agents, successors and assigns, shall:—

A. Cease and desist from:

!. 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 discriminating in

regard to the hire or tenure of employment or any term of

condition of employment of any of its employees.

13; NLRB vy. Enwistle Mfg. Co., 120 F.2d 532, 536(4th Cir. 1941): Hick mot

Foods, Inc., 242 N.L.R.B. 1357 (1979).

14; In the event no exceptions are filed as provided in Section 102.46 of the

Rules and Regulations of the National Labor Relations Board. the findings.

conclusions, and recommended Order which follows herein shall. as provided in

Section 102.48 of those Rules and Regulations, be adopted by the Board and

become its findings, conclusions, and Order. and all objections thereto shall be

deemed waived for all purposes.

JD-412-83

2. Interfering with, restraining, or coercing any of its

employees in the exercise of any of the rights guaranteed in

Section 7 of the Act, through discharge, termination, layoff,

furlough, suspension, failure to recall or reinstate or rehire, or

other economic retaliation or threat thereof.

3. 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 organization;

to bargain collectively through representatives of his or her

own choosing; to engage in concerted activities for the

purpose of collective bargaining or other mutual aid or

_ protection; or to refrain from any and all such activities.

B. Take the following affirmative actions necessary to

effectuate the policies of the Act:

|. Make the following employees whole for any loss of

pay (including overtime, holiday, and vacation pay, and

insurance benefits and reimbursements if any), together with

interest, in the manner set forth in “The Remedy” portion of

the decision of which this Order forms a part:

Carlos Casal

Mario Aguila

Daniel Santos.

2. Forthwit.. expunge from the personnel and employ-

ment records of each of said employees all statements or

references that they (or any of them) were terminated or laid

off by Respondent for any work-related fault, deficiency, or

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JD-412-83

reason; refrain from so reporting to any employer,

prospective employer, employment agency, reference seeker,

or credit or character inquiry, or that such action by

Respondent was in any way related 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 pérsonnel actions against them.

3. Preserve and upon ‘request make available to the

Board or its agents, for examination and copying, all payroll

records, wage scale records and notations, social security

payment records, timecards, personnel records and reports,

and also all other records and entries necessary and

appropriate to determine the amounts of backpay and other

sums and benefits due under and the extent of compliance

with the terms of this Order.

4. Upon 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 conditions of

employment, and embody in a signed agreement any under-

standing reached:

All building service employees, including porters,

handymen and superintendents employed by

Respondent at its Queens facility, exclusive of office

JD-412-83

clerical employees, guards and all supervisors as

defined in Section 2(11) of the Act.

5. Post at its premises at 88-15 133d Avenue, Borough

and County of Queens, City and State of New York, copies.of

the Notice attached hereto marked “Appendix.” 15/ Copies

of said Notice, on forms provided by the Board’s Regional

Director for Region 29, shall, after being duly signed by

Respondent’s authorized representative, be posted by

Respondent immediately upon receipt thereof and main-

tained by it for 60 consecutive days thereafter in conspicuous

places, including all places where notices to employees are

customarily posted. Reasonable steps shall be taken to insure

that said Notices are not altered, defaced, or covered by any

other material.

6. Notify said Regional Director, in writing, within 20

days from the date of this Order, what steps Respondent has

taken to comply herewith.

Dated: October 17, 1983

Stanley N. Ohlbaum

Administrative Law Judge

15; In event that the Board’s Order is enforced by a Judgment of a United

States Court of Appeals. the words in the Notice “POSTED BY ORDER OF

THE NATIONAL LABOR RELATIONS BOARD” shall be changed to

“POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES

COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL

LABOR RELATIONS BOARD.”

B-28

JD-412-83

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 evidence and arguments, the National Labor

Relations Board has decided that we have violated the

National Labor Relations Act. We have therefore been

ordered to post this Notice and do what it says.

The National Labor Relations Act gives all employees

these rights:

—To engage, in self organization

—To form, join, or help unions

—To bargain collectively through representatives

of their own choosing

—To act together for collective bargaining or other

mutual aid or protection

—To refrain from any or all of these things.

Accordingly, we assure you that:—

WE WILL NOT violate these rights of yours.

JD-412-83

WE WILL not terminate the employment of, discharge,

lay off, suspend, or refuse to reinstate, rehire or reemploy you,

or threaten to do so, because you seek to bargain collectively

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 organization, 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,

restrain, or coerce you in the exercise of your right to self-

organization; to form, join, or assist any labor organization;

to bargain collectively through representatives of your own

choosing; to engage in concerted protected activities 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 discharge by

us on February 4, 1983, plus interest: —

Carlos Casal

Mario Aguila

Daniel Santos.

WE WILL at once eliminate from our records all

indications 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, employment agency, or

credit or character inquiry, WE WILL NOT use such termi-

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nations or layoffs as a basis for future personnel actions

against said employees; and WE WILL so notify those

employees in writing.

WE WILL, upon request, recognize and bargain

collectively with Local 32B-32J, Service Employees Inter-

national Union, AFL-CIO, as the exclusive bargaining

representative of our employees in the following appropriate

unit, and embody in a signed agreement any understanding

: reached:

All building service employees, including porters,

handymen and superintendents employed by us at

our Queens facility (Balsam Village), exclusive of

office clerical employees, guards and all super-

visors 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

(Employer)

Dated By

(Representative) (Title)

RECEIVED

DEC 19, 1984