# Petition for Writ of Certiorari — Gordon v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2451%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 479 U.S. 931 ## Text 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 OY Ce eee ee eee Li. eee ee! a | eee en. eo ee aw gata BL Sal RPA IE RY siCe MRLs ewe 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 “te Tease ee ee ee 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 B-13 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. B-14 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. B-15 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. B-17 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, B-20 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. B-22 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). B-24 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 B-26 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- B-30 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2451%3A1. Public record. Not legal advice.