Asociacion De Condomines Del Condominio Villas Del Mar

334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Asociacion de Condomines del Condominio Villas del Mar and Union de Tronquistas de Puerto Rico, Local 901, IBTCW & H of A. Case 24-CA- 5260 18 August 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 27 June 1986 Administrative Law Judge Thomas E. Bracken issued the attached decision. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answer- ing brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. CHAIRMAN DOTSON, concurring. Contrary to my colleagues, I would not assert jurisdiction over the Respondent that is engaged in the management of a condominium complex, for the reasons set forth in the dissent in Imperial House Condominium, 279 NLRB 1225 (1986). Ac- cordingly, I would dismiss the complaint. ' The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 We note that the General Counsel's exceptions here are limited to the judge's dismissal of the allegation concerning Sec 8( a)(1) and (3) of the Act and his failure to recommend a remedy therefor Simao J. Avila, Esq., for the General Counsel. Jose E. de la Cruz-Skerrett, Esq, of San Juan, Puerto Rico, and Awilda M. Morales-Fortuno, of Santurce, Puerto Rico, for the Respondent. Miguel A. Torres, of Santurce, Puerto Rico, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS E. BRACKEN, Administrative Law Judge. This case was tried at Hato Rey, Puerto Rico, on 3, 4, and 5 March 1986 pursuant to a complaint issued on 23 December 1985 i The complaint, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, is based on a charge filed by the Union on I November 1985 (amended at the hearing).2 The Re- spondent in its answer denies having violated the Act as alleged. On the entire record, including my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respond- ent, I make the following FINDINGS OF FACT I JURISDICTION The Respondent, a nonprofit association organized under the laws of the Commonwealth of Puerto Rico, is engaged in the administration, maintenance, and related services for certain condominium buildings known as Villas del Mar, East and West, located in San Juan, Puerto Rico (the Condominium). During the year ending 31 July, a representative period of its annual operations, Respondent received at the condominium insurance, util- ities, supplies, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were purchased and received from other enterprises in Puerto Rico, each of which other en- terprises had received such goods and materials in inter- state commerce directly from points located outside the Commonwealth. During the same period set forth above, Respondent, in the course of its service and maintenance operations, derived gross revenues therefrom in excess of $500,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. It is a large local union having 3500 to 4000 members. It has 5 full-time paid i All dates are in 1985 unless otherwise stated 2 At the opening of the hearing, on Monday, 3 March 1986, the Gener- al Counsel moved to amend the complaint by adding a new subpars 7(d), (e), and (0 This amendment alleged that on 9 October the Union had requested Respondent to supply it with financial information, including financial statements on which Respondent based its claim of inability to continue employing the unit employees The amendment further alleged that the information was necessary for the Union's performance of its duties and that since 9 October the Respondent has refused to furnish the Union with the requested information (G C Exh 1K) Respondent's counsel, Skerrett, strongly opposed the motion to amend as of this late date, because the first knowledge he had of it was on the previous Friday afternoon, when the General Counsel had read it to him over the tele- phone, and the first time he had seen it was that Monday morning Coun- sel for Respondent further argued that he met with the General Counsel more than seven or eight times since the complaint was issued, and this issue of failing to furnish financial information had never been raised The General Counsel stated that this was correct, but as soon as he knew about the allegation, he had telephoned Skerrett's office, and was only able to reach the attorney after 5 p in on Friday I reserved my ruling until the following morning when I granted the General Counsel's motion to amend the complaint Respondent's counsel agreed to go ahead with the hearing 285 NLRB No. 60 CONDOMINIO VILLAS DEL MAR 335 union officials and 12 office clerical and accounting em- ployees. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues in this proceeding are: 1. Whether Respondent violated Section 8(a)(1) and (5) of the Act by deciding to subcontract its service and maintenance work to an ouilside contractor , without having afforded the Union the opportunity to negotiate and bargain over its decision to so subcontract , as well as the effects of such subcontracting on the bargaining unit. 2. Whether Respondent violated Section 8 (a)(1) and (5) of the Act by failing to provide financial information requested by the Union. 3. Whether Respondent violated Section 8 (a)(1) and (3) of the Act by discriminatorily discharging the entire complement of the bargaining unit's employees as a con- sequence of its decision to subcontract its service and maintenance work. B. Background In 1975 the Union was designated as the collective- bargaining representative of a unit of employees of the Respondent.3 A collective-bargaining agreement was thereafter negotiated commencing 1 November 1975, and was in effect for a term of 3 years. The final article of this agreement provided as follows: Article XXXIX-DURATION This agreement will be in effect during the term of three (3) years starting from November 1, 1975. Its effectiveness [sic].term, as of that date will be automatically renewed annually unless one party notifies the other in writing, at least sixty days prior to the expiration date of the effectiveness of same, its desire to terminate, amend, or modify the collec- tive bargaining agreement, In the event a notice of modification is given, as above stated, negotiation;; for the new agreement must start as soon as possible after such notice, but never later than thirty (30) days before the expira- tion date of the present agreement or any extension of same. Thereafter, the collective-bargaining agreement was continuously extended by written stipulations agreed on by the parties. In December 1982, the parties executed a stipulation extending the original agreement for 2 years, the termination date being 31 October 1984 . It also pro- vided for an increase in the hourly rate of pay and an increase in the contributions to be paid to the medical plan for each employee. (G.C. Exh. 3(b).) On 9 January 1985, the parties entered into another stipulation agreeing to extend the previous collective-bargaining agreement for a period of 1 year with the exception of several mon- etary increases to the employees.4 (G.C. Exh. 3(d).) The date of expiration for this last stipulation was set forth as 30 October 1985.5 A contract clause pertinent to this case is article XXX, which, was contained in the original bargaining agree- ment, and remained unchanged throughout the 10-year period of bargaining relationship. This provision provid- ed as follows: ARTICLE XXX-SUBCONTRACTING In order to maintain the employment and employ- ment opportunities for the workers covered by this collective work contract, the Company agrees that no work or service currently performed or assigned in the future to the collective work unit, shall be subcontracted, transferred'', leased, assigned, or com- missioned in whole or in part to any other enter- prise, person or non-union employee. In 1985, the Respondent had a 14-person board of di- rectors (board), all of whom were owners of units in the Condominio Villas del Mar. The officers of the board consisted of President Osvaldo Suarez Pulido, Vice President Carmen Lockheimer, Treasurer Aissa Irizarry, and Carmen Mercado, secretary. The board employed three salaried employees, consisting of an administrator, a secretary for the administrator, and a maintenance su- pervisor. The supervisor of maintenance for the first 7- 1/2 months of 1985 was Salvador Nigaglioni, who had commenced working for the Respondent in August 1983. Nigaglioni was the sole supervisor for the Respondent's 7 to 10 maintenance employees. On a daily basis he as- signed and directed the employees to whatever janitorial or maintenance work that in his judgment he deemed necessary. He also dealt with plumbers, electricians, and other outside services. Unlike the employees in the bar- gaining unit who were paid on an hourly basis, Nigag- lioni was paid a weekly salary and he was not a member of the Union. I find that Nigaglioni was a supervisor within the meaning of Section 2(11) of the Act, as he was in direct charge of the maintenance service and jani- torial employees of the Respondent and responsibly as- signed and directed these employees in their work, and used independent judgment in making such assignments. Holiday Inn of Dunkirk, 211 NLRB 461 (1974); Ballou Brick Co., 277 NLRB 41 ( 1985). C. The Events of May, June, and July 1985 In May, the Union appointed Miguel A. Torres to be the business representative for the unit employees of the Respondent. Torres had over 15 years' experience as a union agent, and had organized the service and mainte- nance employees of the Respondent in 1975, after which he was assigned to represent employees of other employ- 3 The unit admitted to be appropriate by Respondent in its answer is All service and maintenance employees employed by Respondent at its condominium in Isla Verde , Puerto Rico, but excluding all cleri- cal and office employees, guards and supervisors, as defined by the Act. 4 The hourly rate of pay was increased, the amount of the contribution to the medical plan was increased, and a contribution to a vacation center was established 5 No explanation was set forth why the termination date was changed from the 31st of the month to the 30th as in prior contracts , and I attach no significance to it 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ers. At the time of the hearing, Torres was the represent- ative of employees working for about 70 employers. The secretary-treasurer and chief officer of the Union was Jose E. Cadiz Ayala (Cadiz). By letter dated 31 May, Torres wrote to Chairman of the Board Pulido, advising that he had visited Respond- ent's workers and that because of some layoffs there were too few employees to do the work. Torres further wrote that this condition endangered the workers' health, and he requested a meeting as soon as possible to resolve this matter. Not having received a reply from Pulido, Torres wrote a tracer letter on 18 June, asking for a reply. By letter dated 11 July, Pulido acknowl- edged the receipt of Torres' 18 June letter, and advised that the board of directors had agreed to appoint a com- mittee to meet with him, and in the near future they would advise him of the date and hour. Subsequent to the receipt of this letter, Torres ar- ranged a meeting with Maintenance Supervisor Nigag- lioni at the lounge of the condominium. Torres and Ni- gaglioni met on 2 July, and the business agent presented several grievances on behalf of the employees. These grievances are succinctly set forth in a speed letter that the maintenance supervisor sent to the board of directors on the evening of the same day. (G.C. Exh. 18(b).) The message of Nigaglioni was as follows: On a visit by Mr. Miguel Torres, Union de Tron- quistas Representative, he brought up the following demands that, according to the Union, must be im- mediately corrected or ceased: 1-UNIFORMS FOR UNIONIZED EM. PLOYEES. That each unionized employee be immediately provided with 4 uniforms, and paid for the actual value of the other 4 uniforms, in- depted (sic) to each unionize [sic] employee. 2-That Mr. Juan A. Berrios be reinstated to his position of Handy-Man; Mr. Berrios was ap- pointed by the Union as Alternate Delegate of this shop. 3-That the three (3) vacant positions be im- mediately filled. 4-That while these vacant positions are not filled, in accordance with the actual collective bargaining agreement between the union and the Asociacion de Condomines de C.V.M., the use of temporary employees be discontinued. The union is awaiting Urgent answers to these points brought to our attention. Four days after the business agent's meeting with the maintenance supervisor, Pulido wrote Torres, stating that he found it "very odd'-that Torres had met with Nigag- lioni, who had no authority from the president or the board to hold this meeting. (G.C. Exh. 9(b).) Pulido then added that the requests made to Nigaglioni were there- fore not official. The board president concluded his letter by repeating that the director's next meeting was sched- uled for the second week of August, at which time a committee would be appointed that would contact Torres "in regard to the matter." A copy of this letter was sent to, and received by, Ni- gaglioni on 31 July. Nigaglioni testified that he was very angry about the contents of the letter because Pulido had not informed the board of directors that he had in fact authorized Nigaglioni to meet with Torres. The supervi- sor then met with Pulido on 1 August and advised the president that he was resigning. Pulido' sought to placate Nigaglioni and asked him to remain during the balance of his term of presidency. Nigaglioni further testified that the president told him: [T]hat everything was that the Board of Directors of Villas del Mar what they wanted to win was time because at the end of October or the beginning of November, they were going to get rid of the union and the employees. Nigaglioni was not placated and left the employ of the Respondent on 16 August. Pulido did not testify, and I credit the supervisor's testimony.6 On 2 August Torres responded to Pulido's letter, and stated that the parties' collective-bargaining agreement contains a grievance procedure that requires that when a complaint arises it must first be discussed with the imme- diate supervisor, and that Nigaglioni was the immediate supervisor. The letter also requested that the Respondent change its attitude "of delaying the process of collective bargaining," and that the Respondent meet with him as soon, as possible. (G.C. Exh. 10(b).) D. The Decision to Subcontract In February the board of directors had become con- cerned about the costs of its maintenance department, and the need of major repairs for major components, such as its elevators and cooling towers. The board was interested in cutting its labor costs and using the money saved thereby to pay for some of the major repairs needed in the condominium. In March several outside maintenance contractors were contacted and asked to submit a proposal in which the contractor would handle and perform all mainte- nance services, including workers, cleaning materials, su- pervision, payroll, and vacation. Premier Maintenance, Inc. was contacted on 15 March and submitted a pro- posed six-page contract on that date. There was no fur- ther contact between Premier Maintenance and Respond- ent for the next 6 months. About 1 August, Jose E. de la Cruz-Skerrett was re- tained as counsel for Respondent.? On the evening of 28 6 Nigaghoni also testified about two other occasions when a member of the board of directors also told him that the Respondent wanted to get rid of the Union. In mid-June, Puhdo authorized Nigaglioni to get price quotations for uniforms for the employees. The supervisor secured a quo- tation and then placed it on Pulido's desk On seeing this, Treasurer Iri- zarry told Nigaghom "that that quotation was not necessary because soon they would not have employees for the uniforms." The second incident also occurred in mid-June at the Condominium . Irizarry complained to Nigagliom that an employee had refused to do personal work in her con- dominium When Nigaglioni informed her that she knew that employees were not supposed to do such work, she told him "that we had to get rid of the Union and those employees." Irizarry did not testify, and I credit Nigagliom's uncontradicted testimony T Skerrett had commenced practicing law in Puerto Rico in 1974. He testified that he was not a labor lawyer CONDOMINIO VILLAS DEL MAR August Skerrett met at the condominium with six of the seven members of Respondent's committee.8 Also present were various other persons, two of whom were experienced labor law attorneys, who were there to give legal advise on the Union and the parties' collective-bar- gaining agreement. Over a 4-hour period there was much discussion on maintenance problems and whether the Respondent could get rid of the Union and its contract in a proper and legal way. The labor law attorneys, Calderon and Rivera, participated in the discussion as did Skerrett. So also did two administrators of other condominiums, who had past experience with union employees. At the end of the meeting, the board of directors instructed Skerrett to send a letter to the Union informing it that the collec- tive-bargaining agreement would be terminated on its ex- piraton date of 30 October. By letter dated 29 August, Skerrett wrote to the Union by certified mail, with return-receipt requested, as fol- lows: Gentlemen: You are hereby notified that pursuant and in keeping with clause 39 of the Collective Bargaining Agreement between your union and Condominio Villas del Mar, same will not be renewed and will be considered terminated on October 30, 1985. Condominio Villas del Mar is going through an acute maintenance crisis of its physical plant and needs to distribute its income to start improvements which cannot be postponed in the common areas of the building. The visible deterioration of its struc- ture and mechanical parts, such as elevators, require immediate attention. On the other hand, the Condominium requires the services of an Administrator, since the members of the Board of Directors cannot continue devoting their free time, free of charge, to duties pertinent to supervision. An analysis has demonstrated that a private main- tenance company can render the service now per- formed by unionized personnel at a cost substantial- ly lower than the present one, which would then make available funds to be used for improvements and administration as mentioned above. At least one of the maintenance companies con- sulted has stated that they would expect to receive and consider applications, for employment from the personnel which will be dismissed on October 30, 1985 because of the termination of the collective bargaining agreement. We assure you that this decision had been care- fully weighed by the Board of Directors of Condo- minio Villas del Mar, an entity which comprises only property owners of this building and whose operation does not entail profit making or gain of any sort. On 26 September Torres replied to Respondent's noti- fication letter as follows: 9 Pulido was not present. 337 Dear Atty. de la Cruz: Making reference to your letter dated August 29, 1985, where you notify us your client's- Condominio Villas del Mar, desire to regard as terminated the collective bargaining agreement in effect between the parties, we hereby notify you that neither the Union nor the workers are interested in regarding said agreement terminated , therefore within a few days we will submit the new demands in order to start the negotiation. Having nothing further to'refer to, I remain Skerrett admitted that he received this letter a few days after its 26 September date of mail. E. Credibility The testimony contained a few sharp evidentiary con- flicts, and I have resolved such conflicts when they appear in the record. From my observation of the de- meanor of the witnesses, as well as consideration of the record, I have not found Torres or Cadiz to be credible witnesses. Torres particularly was an evasive, vague, in- consistent, unconvincing witness. An example is his testi- mony when asked whether he notified the Respondent of the Union's intent to modify the bargaining agreement during the 60-day notice period: A. Yes we communicated. Q. How? A. That automatically comes in writing. First of all is not the officials, the union representatives who do this. That is done by the central offices of the union automatically. Q. Do you have that document with you? A. No, I don't have it here. Q. Have you ever seen that document? A. I think so. Q. But you don't have it with you? A. No, I don't. Q. Did you provide that document to the Gener- al Counsel? A. I know that I sent him a letter of expiration but I don't know. Q. You sent it? A. Yes. Q. To General Counsel? A. Yes.9 Q. Could you tell us what is the date of that letter? A. And aside from ... . MR. DE LA CRUZ: No, I would like to instruct the witness to stay in answering the question from pronouncing more, it looks like the witness is start- ing to answer other thing. I want to know if you have that document with you, Mr. Torres? A. August 30. Q. Where is that document? A. I don't know, I don't have it. 9 The General Counsel never claimed to have received such a docu- ment- 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Q. You don't have it. A. Not here. Q. Have the Condominio in any way given you any knowledge that they have received such docu- ment? A. I am not the one who sends it. Carmen Rodriquez, the union delegate and an employee of the Respondent , was a very sincere, honest witness and I credit her testimony. I also credit Nigaglioni's tes- timony. While he was an excitable witness, and openly expressed a strong dislike for Respondent's treasurer, he answered all questions quickly, without hesitation, and without contradiction. As to Respondent's witnesses, I have found them to be credible. Skerrett and Lockheimer impressed me with their forthright, candid, unemotional testimony, and I credit their testimony. Bishop's testimony was unchal- lenged, and accountant Castillo's was largely irrelevant. F. The Events of October Torres testified that following his letter of 26 Septem- ber he had a communication from Skerrett to hold a meeting with the board of directors "so that I could present the grievances that the employees had." Skerrett testified that on the morning of 7 October he received a telephone call from Torres, in which the union agent ad- vised him that he could not attend a meeting that evening with the board of directors . The two parties then agreed that the meeting would take place on 9 Oc- tober.to On the afternoon of 9 October, Torres and Union Del- egate Rodriquez, met with the board of directors and At- torney Skerrett. When Torres was asked what was dis- cussed at the meeting , he replied as follows: A. We discussed the other cases that I had pre- sented to Mr. Nigaglioni ... . Q. Those are the cases that you had presented to Mr. Nigaglioni on July the 26th, 1985? A. That is correct. Q. And were those the same cases that you were trying to communicate with Mr. Suarez Pulido since May 31st, 1985? A. That is correct. Q. And what response, if any, was given to you by the Board members or agents of Respondent? A. Aside from that we also spoke there about the collective bargaining agreement. Q. And what was said, if you recall? A. That the collective bargaining agreement was not going to be renewed again, and I mentioned there if it was economic matters, that they give us a statement because we were in the best disposition to negotiate a new agreement. However if they're attitude was that of firing the employees, that we would see each other on the 10 This testimony of Torres and Skerrett was uncontradicted and I credit it The record does not disclose by whom or how the 7 October date had been arranged street, and I was referring to the picket line, that we would mount a picket line. Q. Was any answer given to your request? A. No. Mr. Skerrett gathered everything that I presented to him and told me that he would answer me later. Union Delegate Rodriquez was also called by the General Counsel to testify as to the events at the 9 Octo- ber meeting. When asked what she recalled happening at the meeting she replied: As far as I remember from the meeting, when we met there in the lounge, that Mr. Mickey Torres and the Attorney were there, Mr. Mickey Torres proposed something to the lawyers regarding our uniforms and regarding Mr. Rafael Rivera, an em- ployee which they had fired. Q. What was it about the uniforms? A. Well that they had not bought uniforms for us in over two years. She further testified that after Torres and Skerrett fin- ished discussing the questions of uniforms and coworker Rafael Rivera, that Skerrett told Torres "that the union and the work of the employees was going to end as of October 31." She did not recall if Torres made any reply, and the meeting then ended. Carmen Lockheimerit testified that Torres just spoke about the grievances, and did not make an offer that the Union was willing to accept the same conditions of the current collective-bargaining agreement. Lockheimer fur- ther testified that Torres was told that he had to present his demands for the bargaining agreement, but he kept on talking about the grievances. However, he finally did say that he was going to send in all of his demands. Ac- cording to Lockheimer, the board of directors wanted to receive the Union's demands so as to make a comparison between the costs under union conditions and the costs under a subcontractor. Skerrett testified that the purpose of the meeting was to resolve grievances that the Union had filed for its members. However, before the discussion commenced about the grievances, he admitted that "Torres told us collective bargaining agreement." Torres offered no ex- planation of why the Union's demands had not been pre- viously submitted. The grievances previously submitted by Torres were then discussed, with special emphasis on the employees complaints that there were too few em- ployees to do the work required, and that the employees wanted uniforms. After Torres and the union delegate left the meeting, there was a short discussion on the grievances presented by the union official, and Skerrett was instructed to forward the board's reply. I do not credit Torres' testimony that he mentioned that if the collective-bargaining agreement was not going to be renewed because of economic matters, the Re- spondent should give the Union a statement, because the Union was in the best disposition to negotiate a new 11 Lockheimer was the vice president of the board in 1985, and was the president at the time of the hearing CONDOMINIO VILLAS DEL MAR agreement. I base this on Torres' demeanor and the con- tradictions contained in his testimony as set forth in sec- tion III , H, 2, below I credit Skerrett's and Lockheimer's testimony that grievances were discussed at length in the meeting and that Torres was told he had to submit his bargaining de- mands, and that he stated he was about to submit them for the Union. I also credit Lockheimer's testimony that Torres never said that the Union was willing to accept the same collective-bargaining agreement. On 15 October the union office received a letter from Skerrett in which the attorney stated that he was report- ing to Torres the decision of the Board as to each com- plaint he had registered at the 9 October meeting. (G.C. Exh. 13(b).) Six grievances were listed Item 1 concerned uniforms,- and the Respondent denied that it had the duty to supply them. Item 2, captioned "Work by Non-Union- ized Personnel," item 3, "Utilization of Probationary Employees"; item 4, "Increase in Personnel"; item 5, "Claim of Rafael Rivera"; and item 6, "Seniority" were all denied as having no merit It is to be noted that in three different paragraphs Re- spondent's letter set forth that the parties' collective-bar- gaining agreement was to expire on 30 October 1985. The final paragraph of the letter read as follows: I must also inform you, that hereinafter and until the date on which this agreement concludes, which will be next October 30, 1985, the differences and complaints must be communicated in the first place, to Mrs Dinorah Rosa, Interim Administrator. Torres testified that after he received Skerrett's letter, about 17 or 18 October, he made about four or five tele- phone calls to Skerrett "none of which were answered." Because his calls were not being answered, "around" 20 April, he discussed this problem with the Union's chief official, Cadiz. Cadiz testified that he then telephoned Skerrett's office in Torres' presence, was not able to reach the attorney, so he left a message for the attorney to call him. Torres also testified that Cadiz had later told him that he had called Skerrett about three more times, but had never received an answer. Cadiz testified that he made three phone calls to Skerrett's office in the first week of October, specifying between 1 and 9 October, and was never able to reach Respondent's attorney. Cadiz admitted that he did not know that the parties' collective-bargaining agreement terminated on 30 Octo- ber Skerrett testified that in the month of October his office only received telephone calls from Torres on 7, 25, 28, and 31 October. 12 The first call dealt with 12 Skerrett testified that his office used a wire-bound telephone mes- sage book that contains a white copy and a carbon copy for each in- bound call When a call comes in, if the attorney called is present and he takes the call, no entry is made in the book by the secretary If the attor- ney is not present , the secretary makes appropriate entries in this book, and when the attorney comes into the office, he is given the white copy to return the call, and the carbon copy remains permanently bound in the message book Skerrett wanted this book admitted into evidence to show that there were no calls recorded from Torres that were unanswered I sustained the General Counsel's objection to its admission because Sker- rett had not made the record The secretary who made entries in the tele- 339 Torres' request to change the meeting date to 9 October. On the 25 October call, Skerrett was on a small island camping with his family and unable to take any calls. The Monday, 28 October, calls were received by his sec- retary, but not answered by Skerrett because he was with a client preparing a malpractice case On the fol- lowing day, 29 October, Skerrett returned Torres' call, but he was not able to reach the union agent . On 31 Oc- tober Skerrett was in a restaurant having lunch when his office transferred Torres' call over to the restaurant. The lawyer and union agent then had a discussion , which is set forth below. I do not credit Torres' or Cadiz' testimony as to the calls they claim to have made to Skerrett, as I regard their answers as contrived. Torres testified that his calls occurred from 17 or 18 October to 20 October, and that Cadiz' started on 20 October Cadiz contradicted this tes- timony by stating that he made his calls to Skerrett's office between I and 8 October. It is to be noted that Torres was able to reach Skerrett on the telephone on 7 October when he wanted to change his meeting date with the Respondent to 9 October. I credit Skerrett's tes- timony that his office received calls from Torres' office on 7, 25, 28, and 31 October. I also credit Skerrett' s testi- mony that he returned Torres' call of 28 October on the following day, 29 October, and that he had a telephone conversation with Torres on 31 October. G. Implementation of the Decision to Subcontract As set forth in section III,D, above, in March the Re- spondent's board of directors had solicited proposals from several contractors to perform all the maintenance work of the Condominium, which, if effectuated, would require the termination of the employees represented by Local 901. On 17 October the executive committee of the board of directors13 met with acting Administrator Dinorah Rosa. As set forth in their minutes (G.C Exh. 5(b)) the meeting was called to discuss the proposals submitted by four companies concerning the maintenance work of the condominium. After studying the various proposals the executive committee accepted the proposal of Premier Maintenance. Its bid of $7120 per month was the lowest bid and its proposal included furnishing employees, main- tenance products, equipment, exterminating service, su- pervisor, insurance, and taxes. 14 On 18 October Bishop, the owner of Premier Mainte- nance, met with the board of directors. At this meeting Bishop was informed that his company was the success- ful bidder. The proposal submitted by him in March, after being signed, became the contract between the par- phone message book was not called to authenticate it as a record kept in the ordinary course of business 1' President Pulido, Vice President Lockheimer , Treasurer Irizarry, and Secretary Mercado 14 The Respondent contends that its savings in a year would exceed $30,000 by subcontracting the work rather than having its own employ- ees perform the work The General Counsel stipulated that it was cheap- er for the Respondent to use the outside contractor , and that there would be a saving of money , but did not stipulate that the amount would be $30,000 a year 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ties, and was to become effective on 1 November, on a month-to-month basis. In preparation for the changeover, Board President Pulido sent out a bulletin (G.C. Exh. 14(b))15 to all resi- dents of the condominium that read as follows: We wish to inform you that effective October 31, 1985 our union employees will cease their duties as maintenance personnel. From November 1, 1985 maintenance will be performed by a company. We are expecting a picket line organized by our person- nel The Board of Directors is taking all necessary measures to bring things back to normal within a reasonable time. WE URGE YOUR COOPERATION. On 31 October the maintenance employees of Re- spondent were discharged.16 On 1 November Premier Maintenance commenced providing the maintenance services to the condominium with a work force of 12 part-time employees and 1 full-time supervisor. The former employees of the Respondent were offered jobs of 20 hours a week by Premier Maintenance, but all de- clined the offer. Torres was out of town on the day of discharge, but arrived at the condominium about 4 p.m. on Friday, 1 November, where he met with his members. According to Torres, these employees informed him that they had not been paid for their vacations. Torres testified that he then went into the office of the condominium where he talked about the employees' pay problem to the secretary of the administrator, Boada, and another lady, whose name he did not know, but did know her to be a member of the board. They contacted Skerrett, and Torres talked to him. When asked what was said he replied: A. I explained the situation and I believe that I also mentioned to him, now that I remember, that I told him that if it was a matter of economy, we could also stipulate that in the agreement, I remem- ber that I told him that also. I know that I told those words, but I don't re- member if it was to him or the lady from the Board that was there, but I'm very sure that I did state them. When asked again if he spoke with Skerrett, he replied yes, and when asked what did Skerrett say, he answered: "That he would pay the employees on Saturday, that they should be there around 10:00 o'clock, that he would have the checks ready " Skerrett did come to the condominium on Saturday, 2 November, and distributed the checks. Torres did not appear. The last telephone call Skerrett had from Torres prior to the hearing was 5 November. The employees were picking up letters of discharge at the condominium on that date so that they could present such letters when '6 Torres received a copy of this bulletin from a union member, but the record does not disclose his date of receipt 16 Juan A Bernos, Matea Collazo, Mercedes Fuentes, Victor Hernan- dez, Juan de Leon, Victor Ramos, and Carmen Rodriquez they filed for unemployment compensation. Someone wanted the employees to sign a receipt for the letter, which they refused to do. The conversation ended when Skerrett advised the office employee that receipts were not necessary. There were no further conversations be- tween Torres and Skerrett prior to the hearing. According to Skerrett, neither he nor the board of di- rectors ever received at any time a verbal request, or a written request, from the Union to sit down and negoti- ate with the Union on the subject of subcontracting. H. Conclusions 1. As to bargaining over subcontracting The General Counsel contends that Respondent's deci- sion to subcontract the janitorial work turned on labor costs and was therefore a subject of mandatory bargain- ing. Second, the General Counsel contends that after the Union received the notice from the Respondent that it would not renew the parties' collective-bargaining agree- ment, it did request the Employer to bargain on several occasions, and negotiate about the Respondent's decision to subcontract its service and maintenance work, but Re- spondent ignored its requests and thereby violated Sec- tion 8(a)(5) and (1) of the Act. Respondent, in its brief, admits that its decision to sub- contract was based on labor costs. Respondent's letter to the Union on 29 August amply points this out. Skerrett stated therein in so many words that Respondent intend- ed to subcontract the maintenance services to a private company because its analysis of costs had shown "that a private maintenance company can render the service now performed by unionized personnel at a cost substan- tially lower than the present one." In agreement with the General Counsel and Respond- ent, I find that Respondent's decision to subcontract service and maintenance work to an outside contractor turned on labor costs, and was therefore a subject of mandatory bargaining Otis Elevator Co., 269 NLRB 891 (1984). Respondent further contends that the Union waived its right to bargain over the Employer's decision to subcon- tract, because the Union had ample notice from Re- spondent that it planned to subcontract this work upon the termination of the parties' collective-bargaining agreement, and the Union never requested the Employer to bargain with it about this subject Respondent further contends that while the Union, by Torres' letter of 26 September, stated that it would forward its demands, and that at the 9 October meeting Torres again stated he would forward its demands, the Union never followed through and never presented any demands to bargain about any subject that would be covered by a collective- bargaining agreement, and never asked to meet and confer specifically about subcontracting The narrow issue that follows is whether the Union made a timely request to the Respondent to bargain over its decision to subcontract the service and maintenance work. On the basis of the entire record, I agree with Re- spondent's contentions, and find that the Union did not. CONDOMINIO VILLAS DEL MAR The record is unchallenged that pursuant to the terms of the parties' collective-bargaining agreement, the Union received a 60-day notice from the Respondent. In this letter the Employer informed the Union that the Re- spondent was not going to renew its collective-bargain- ing agreement on 30 October, but was in fact going to terminate it. After a lapse of over 3 weeks, the Union, by Torres, finally responded to the Employer's letter in a very brief and terse letter. In this seven-line letter Torres advised that neither the Union nor the employees were interested in terminating the agreement, so "therefore within a few days we will submit the new demands in order to start the negotiation " However, no demands were submitted in a few days, or in few weeks, or any time thereafter either orally or in writing, by the Union to the Respondent, and no re- quest for negotiations was ever made by the Union. When the parties met on 9 October, the record is clear that the meeting was completely dominated by the old grievances submitted by Torres in his letter of 31 May and traced by him on 18 June and 2 August. Torres' tes- timony affirmed this, as when he was questioned about what was discussed at the meeting, he immediately re- plied that they discussed the "cases" that he had com- plained of in his letters of 31 May and 26 July. It is true that Torres testified at the 9 October meeting when he was told that the collective-bargaining agree- ment was not going to be renewed, he "mentioned that if it was economic matters, that they give us a statement because we were in the best disposition to negotiate a new agreement." As set forth above, delegate Rodriguez did not recall such a request, and I do not credit Torres' testimony. My additional reason for discrediting Torres' alleged statement is more fully set forth in section III,H,2, below. It is also noteworthy that Skerrett's postmeeting letter received by the Union on 15 October, and by Torres on 17 or 18 October, again pointed out that the Respondent would not renew the parties' bargaining agreement, just as it had done 6 weeks previously in the attorney's letter of 28 August. Also, in the same October letter, Skerrett informed Torres that any "difference or complaints" he had up to 30 October should be communicated to the in- terim administrator, Rosa. Assuming, arguendo, that Torres in the last 2 weeks of October had telephoned Skerrett's office three or four times without being able to reach him, certainly he could have contacted its authorized agent, Administrator Rosa. Rosa was available at the condominiums' office through- out each working day, yet Torres never attempted to visit or telephone the administrator, and give notice that the Union was requesting that the Respondent bargain with it before any work was subcontracted. Furthermore, the Union, or Torres, never sent a letter, telegram, or any other kind of communication to Pulido, the president of Respondent's board of directors, or to any other officer or member of the board, to demand that the parties bargain over subcontracting, or its effect Torres' excuse about why he took no such action, was that Skerrett had told him at the 9 October meeting that everything related to negotiations had to go through Skerrett. This is unworthy of belief. In the union agent's 341 earlier testimony when he described the conversation at the 9 October meeting, he never mentioned that he had been told to deal only with Skerrett about negotia- tions. i' Torres did admit that Skerrett's letter received by the Union on 15 October did state that until 30 Octo- ber 1985, he was to take up "differences and complaints" with interim Administrator Dinorah Rosa. However, Torres contended that he did not think Rosa had the power to deal with any matters relating to negotiations. This argument falls on its own weight, as it was not nec- essary that he negotiate with her because all he had to do was leave a written or oral request with this author- ized agent, that the Union wanted to bargain with her employer over its plan to subcontract. Torres could also have notified the president, vice president, treasurer, or secretary of the board of directors, that the Union wanted to meet and negotiate over the subcontracting issue. All four officers were specified in the complaint as agents of the Respondent, and such agency was admitted by Respondent in its answer. Clearly, notice to any one of these authorized agents by Torres would have been notice to the Respondent that the Union was requesting negotiations about subcontracting. The complaint also alleges that the Respondent failed to negotiate and bargain over the effects of subcontract- ing. The record is completely bare as to any evidence that the Union requested Respondent to bargain over the effects of subcontracting. In addition, Torres' actions on 1 November show that he did not request bargaining over the effects of the subcontracting, even when he learned that work had, in fact, been subcontracted and the employees had been terminated on the previous day. By his own testimony, he talked to the administrator's secretary, and then to Skerrett on the telephone, only about securing the employees' vacation pay that was due under the now-expired bargaining agreement. On the entire record, I find that the Union did have timely and proper notice of the Respondent's decision to subcontract its service maintenance work, and that it failed to request bargaining over such decision, and that in failing to request bargaining, it waived its right to bar- gain about such subcontracting. I further find that the Union never requested bargaining over the effects of its decision Accordingly, I conclude that the Respondent's conduct did not constitute unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. Haw- thorn Mellody, 275 NLRB 339 (1985); U.S. Lingerie Corp., 170 NLRB 750 (1968). 2. As to providing financial information The General Counsel correctly states in her brief that Section 8(a)(5) of the Act requires an employer to fur- nish requested financial information, when the employer claims an inability to grant an increase in wages. Howev- er, Respondent stated at the hearing that it was not claiming it did not have the money to pay the wages of " In Torres' affidavit given on 13 December, Torres stated that at the 9 October meeting he asked the board of directors with whom he would deal in negotiations, and that Skerrett replied that they would let him know Torres concluded that paragraph by stating, "They never an- swered my question " 342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its employees, but by subcontracting it could realize a yearly saving of money that would be used to recondi- tion its physical plant. Under the facts of this case it is not necessary to resolve the thorny issue of whether Re- spondent had a duty to supply financial information to the Union, as I find that the Union never requested such financial information The charge filed by Torres with the Regional Office on 1 November (G.C. Exh. 1(a)) contains no allegation whatsoever that the Union requested the Respondent to furnish it with financial information or financial state- ments. The General Counsel first learned of such an alle- gation on 28 February 1986, the Friday before the trial date. On that date, Torres came to him and advised that at the 9 October meeting he had in fact requested Re- spondent to furnish the Union with financial information regarding its economic condition, including financial statements on which the Respondent based its claim of inability to continue employing the unit employees. As set forth in section III,F, above, Torres testified at the hearing that after he was told at the 9 October meet- ing that the bargaining agreement was not going to be renewed, "I mentioned there that if it was an economic matter, that they give us a statement because we were in the best disposition to negotiate a new agreement." On cross-examination, Respondent counsel had Torres read an excerpt from the affidavit he had given to an NLRB agent on 13 December during its investigation of the Union's charges. It read as follows: They never spoke to me about the economic prob- lems there at Condominio Villa del Mar Had they spoken to me about the problem we would have made an agreement to continue with the same agreement for three (3) more years But no one talked to me about the problem. When asked to explain the difference in his statement of 13 December and his testimony of 3 March, Torres was argumentative and inconsistent When asked if he thought his memory would be better on 13 December or 28 February 1986 about what occurred on 9 October, he replied, "On both dates." I credit Torres' affidavit of 13 December over his testimony of 3 March 1986, and find that he did not request the Respondent to furnish the Union with financial information. I shall recommend therefore that this allegation of the amended complaint be dismissed. Alvin J. Bart & Co., 236 NLRB 242 (1978), enf denied on other grounds 598 F.2d 1267 (2d Cir. 1979); Steelworkers Local 15167 (Memphis Folding Stairs), 258 NLRB 484 (1981) 3. As to discrimination The General Counsel charges Respondent with dis- crimination under Section 8(a)(3) and (1) of the Act by its discharge of the seven maintenance employees, alleg- ing that such discharges were made to get rid of the Union. In applying the teachings of Wright Line, 251 NLRB 1083 (1980),18 I find that the General Counsel ' Enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) has sustained her burden of establishing a prima facie case by the fact that the seven discharged employees who belonged to the Union motivated Respondent's de- cision to discharge them. It is true that the Respondent and the Union had good relations for the 10-year history of their bargaining rela- tionship. Lockheimer, who had served on the board of directors of 7 years, while owning a condominium for 10 years, testified that the parties had a "very nice relation." She could only recall one picket line, which had oc- curred many years before 1985, and it had lasted about 1 or 2 days. This testimony was uncontradicted and is credited. However, the record is clear that Respondent wanted to get rid of its union employees for a long period of time. It first considered having a subcontractor perform its work in February. This was followed up by securing bids from outside contractors in mid-March. In June the treasurer, Irizarry, told Supervisor Nigaglioni that it was not necessary to have quotations for uniforms because soon there would be no employees to wear uni- forms. In early August, Pulido informed Nigaglioni that at the end of October Respondent was going to get rid of the Union and the employees. At a meeting in late August, the Respondent decided that it would terminate its agreement with the Union, and on 17 October it con- tracted the condominium' s maintenance work to Premi- um Management. The inevitable result of this was that its employees were no longer needed and they were termi- nated on 31 October. However, I further find that Respondent has success- fully rebutted the General Counsel's prima facie case by showing that the employees were discharged for bona fide economic reasons. The testimony that Respondent's physical plant needed many major overhauls was uncon- tradicted. While the record does not show how much money would have been saved by subcontracting the work, the General Counsel stipulated that it would have been cheaper to have had the work done by an outside contractor. The Respondent notified the Union of its intention to subcontract the work and terminate its union employees 60 days prior to the effective date of such action. This gave the Union ample time to negotiate and bargain with the Respondent and try to change its decision. During this period of time, the Union made no attempt to bring the Respondent to the bargaining table, but slept on its right to do so. Possibly, if negotiations had been held, the Union might have agreed to enough cuts in wages or other benefits to have caused the Respondent to decide against subcontracting out the work, and to keep using the unit employees under a less costly collective-bargain- ing agreement . However, by its failure to request bar- gaining, no give and take could take place, and the Union forfeited its right to try to convince the Respond- ent not to subcontract the service and maintenance work. Accordingly, I find that the General Counsel has not sustained his burden of proof that the unit employees were discharged because they joined and assisted the Union, as I have concluded above that they were dis- charged for bona fide economic reasons. I will, there- CONDOMINIO VILLAS DEL MAR 343 fore, recommend that the complaint be dismissed in its entirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 901 is a labor organization withing the mean- ing of Section 2(5) of the Act. 3. The General Counsel has failed to prove (a) that the Respondent refused to bargain collectively with the rep- resentatives of its employees about the subcontracting of work or the effects of such subcontracting ; (b) that the Respondent failed to furnish it with financial information; and (c) that the Respondent discharged its employees be- cause they joined and assisted the Union, and in order to discourage employees from engaging in union activities for the purpose of collective bargaining or mutual aid and protection. 4. The Respondent had not engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edY° ORDER The complaint is dismissed in its entirety. 20 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses