Park Inn

1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Malvina Krausman, Sally Perlberg and Leon Perl- berg, copartners doing business as Park Inn Home for Adults, Pinkus Osowsky, individual- ly, doing business as New Park Inn Home for Adults, Marvin Beinhorn, individually, doing business as Park Inn and the successor of Park Inn Home and of New Park Inn Home for Adults, Travelers Maintenance, Inc and Samuel Konig, as the successor of Marvin Beinhorn, doing business as Park Inn' and Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO and Local 143, Office, Service and Allied Workers Union, AFL-CIO, Party in Interest Cases 29-CA- 6645, 29-CA-6645-2, 29-CA-6705, and 29- CA-7540 May 18, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 9, 1983, Administrative Law Judge Donald R Holley issued the attached decision Re- spondents Malvina Krausman, Sally Perlberg, and Leon Perlberg, copartners doing business as Park Inn Home for Adults (Park Inn), Respondent Bein horn, and Respondent Konig jointly filed excep- tions and a supporting brief, and the Charging Party and the General Counsel filed answering briefs 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,2 and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order3 as modified ' The caption appears as corrected s The Respondents have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive 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 re versing the findings We agree with the judge s findings that Respondents Osowsky Bein horn and Konig are alter egos of Respondent Park Inn and are jointly and severally liable for remedying the unfair labor practices found Under the circumstances we find it unnecessary to reach the judge s finding that these Respondents are also successor employers to Respondent Park Inn We agree with the judge s findings that Respondents Travelers Mainte nance Inc and Osowsky were joint employers and that Respondent Osowsky violated Sec 8(a)(2) of the Act by soliciting employees to sign authorization cards for the party in interest Local 143 and by signing a contract with that Union at a time when it did not represent a majority of employees in an appropriate bargaining unit 8 The Charging Party s motion to strike the Respondents brief in sup port of exceptions is denied The complaint alleged, and the judge found, that Respondent Park Inn violated Section 8(a)(5), (3), and (1) by failing since March 11, 1978 (6 months prior to the filing of the charge), to make contribu- tions to the Charging Party's employee benefit funds In finding these violations, the judge reject- ed the Respondents' argument that the allegations were time barred because Park Inn had ceased con tributing to the funds before the 6-month limita- tions period in Section 10(b) and had also notified the Charging Party that it was terminating the par ties' expired contract outside the 10(b) period The judge relied on Farmingdale Iron Works, 249 NLRB 98 (1980), enfd mem 661 F 2d 910 (2d Cir 1981), to find that each failure to make the required payments within the 10(b) period was a separate actionable violation The judge further found that although Park Inn notified Local 144 by letter in December 1976 that it considered the parties' most recent contract, which had expired on October 31, 1976, to be terminated as of the expiration date, the letter did not place the Union on notice of Park Inn's intention to modify its obligation to contrib ute to the funds and the Union therefore could not be found to have waived its right to bargain over Park Inn's unilateral cessation of fund contribu- tions We reject the judge's reasoning Taking the latter point first, we find, unlike the judge, that the Union was on notice before the Section 10(b) date that Park Inn had repudiated its obligation to con- tribute to the funds We note that, as the judge found, Park Inn first became delinquent regarding the funds in 1972 and ceased payments entirely in 1974, nearly 2 years before the parties' contract ex pired Further, we note that, although the parties submitted to arbitration the issue of Park Inn's obli gations to the funds on two occasions and Park Inn's fund delinquencies were an issue in negotia- tions between the parties in 1977-1978, the record offers no clear evidence that Park Inn in fact ever acknowledged a continuing obligation to contribute to the funds In view of the sheer length of time during which Park Inn consistently failed to make payments into the funds, we cannot find that the Union's possible prospective satisfaction through arbitration or even through bargaining of Park Inn's failure to contribute to the funds is sufficient to negate the bald fact, of which the Union was The Charging Party has requested that the Respondents be ordered to reimburse it for litigation expenses We conclude that the defenses that the Respondents has raised are arguably debatable rather than fnvo lous and we find that an award of such expenses is unwarranted Heck s Inc 215 NLRB 765 (1974) Tudee Products 194 NLRB 1234 (1972) modified sub nom Electrical Workers IUE v NLRB 502 F 2d 349 (D C Cir 1974) 293 NLRB No 130 PARK INN HOME FOR ADULTS clearly aware, that Respondent Park Inn had failed and refused, year after year, to make any payments Thus, we do not view Park Inn's December 1976 letter terminating the contract as determinative of whether the Union had notice of the repudiation of a contractual obligation Accordingly, under the circumstances of this case, we find that the Union had clear notice of Park Inn's repudiation of any obligation to contribute to the funds outside the 10(b) period Further, concerning the judge's reliance on Farmingdale, supra, we note that since the judge's decision issued, the Board has considered the appli- cation of Farmingdale to cases like this in which a charge of a unilateral change is filed more than 6 months after expiration of the applicable collective- bargaining agreement initially creating the alleged- ly breached obligation Chemung Contracting Corp, 291 NLRB 773 (1988) In light of Chemung's hold ing that Section 10(b) bars a finding that an em- ployer has violated the Act by failing to make con- tributions after the relevant collective-bargaining agreement expires when the charge is filed more than 6 months after expiration of the contract and the union had notice of the failure outside the 10(b) period, we dismiss these allegations and shall modify the recommended remedy and Order ac- cordingly The judge also found that Park Inn violated Sec- tion 8(a)(5) and (1) of the Act by bargaining in bad faith with the Charging Party, Local 144, on and after August 7, 1978, by unilaterally implementing changes in terms and conditions of employment on August 15, 1978,4 that were inconsistent with its prior offers in negotiations with Local 144, and by constructively discharging its employees on August 15 The judge found, alternatively, that if Park Inn had not discharged its employees on August 15, then they became unfair labor practice strikers on that date We agree with the judge, but only for the reasons stated below, that Park Inn bargained in bad faith with the Union on and after August 7 and unlawfully implemented unilateral changes on August 15 We also find for the reasons stated below, in agreement with the judge's alternative finding, that Park Inn's employees commenced an unfair labor practice strike on August 15 and in so doing did not engage in unprotected activity or lose their status as employees Finally, we find that Park Inn either discharged its employees for engag- ing in protected concerted activities on August 15 or created a situation leading employees reasonably to conclude that they had been discharged, in vio- lation of Section 8(a)(3) and (1) 4 Unless otherwise noted all subsequent dates are in 1978 1083 The credited facts, as more fully set forth in the judge's decision, are as follows In 1970, Park Inn began operation of a home for the aged At all rel- evant times until August 15, 1978, the facility was operated by Malvina Krausman, who leased the space occupied by the Home and owned the per sonality with which the Home was operated Sometime soon after it commenced operations, Park Inn recognized Local 144 as the exclusive representative of a unit of its service and mainte- nance employees, and the parties executed a series of collective bargaining agreements, the most recent of which expired on October 31, 1976 Under these agreements, Park Inn was required to make contributions to certain employee welfare and pension funds In 1972, Park Inn fell behind in its obligations to these funds By 1974, it had ceased completely to make the required payments In 1975, Local 144 received an arbitrator's award for the indebtedness to the funds According to the undisputed testimony of Frank Romano, an attor- ney representing Park Inn, Local 144 failed to reduce this award to judgment within the applica ble limitations period, but he agreed with the Union and the fund representatives to permit the Union's attorneys to file a new grievance for the period of time that the expired award would have covered and, additionally, to expand on that period 5 On October 26, 1976, Local 144 notified Park Inn that it was prepared to negotiate a new agreement By letter dated December 20, 1976, Park Inn notified Local 144 that it was terminating the expired contract The parties met on December 14, 1976, and Local 144 presented contract proposals, which ap- parently were patterned after the then-existing col- lective-bargaining agreement between Local 144 and the Metropolitan New York Nursing Home Association Park Inn rejected the Union's propos als Romano, who was Park Inn's chief spokesman throughout the negotiations, told the Union that its proposals were unrealistic in view of the lower revenues that he claimed homes for the aged gener- ated Romano told Local 144 that he would not re- spond to the proposals until the Union gave up the notion that the nursing home agreement could guide negotiations between the parties No further negotiations occurred until November 11, 1977, when Local 144, then represented by Business Agent Archie Godwin, presented proposals that again were apparently based on the master nursing home contract Romano again objected to using the nursing home agreement as a guide to negotia- 5 An arbitration award covering fund contributions through December 31 1976 was reduced to judgment in 1978 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tions Park Inn presented no proposals, however, Local 144 agreed to prepare new proposals The parties next met in December 1977 Local 144 presented proposals calling for, inter alga, a 30 percent increase in wages over those in the expired agreement and increases in benefit fund payments and other economic items Park Inn responded that it lacked the money to meet the proposed terms, but presented no proposals of its own After this session, Romano telephoned Godwin to discuss Local 144's proposal Romano told Godwin that the proposed wage increase was higher than the increase originally proposed by Local 144 in December 1976, and that the pro- posed trust fund contributions exceeded those in the master nursing home agreement Godwin re plied that he was unaware of Local 144's original proposal and that he would review the proposals and get back to Park Inn No further negotiations occurred until, following a June 21 letter from Local 144, the parties agreed to resume negotiations on July 12 On July 11, Local 144 notified Park Inn and the Federal Medi- ation and Conciliation Service that it intended to strike and picket at Park Inn's premises on July 26 At the July 12 session, Romano told Godwin that he would not negotiate under a strike threat and complained about Local 144's failure to contact him before issuing the strike notice, but presented no proposals on behalf of Park Inn Local 144 Inds cated that it could extend the strike deadline if the parties were bargaining and that it was primarily interested in wages and Park Inn's delinquent trust funds payments Romano replied that Park Inn was losing money and could not even afford the terms of the parties' expired agreement, invited Local 144 to review Park Inn s financial records, and stated that, as an alternative, Park Inn was willing to meet an area standard wage and benefit scale Local 144 did not agree to pursue either alternative even though, according to Romano's testimony, Romano told the union representatives that if they would yield on examining the facility's financial records or adopting an area standard for wages, Park Inn "would be willing to make substantial movement on the indebtedness to the funds " The parties met again on July 20 At this session, Romano again told Local 144 that he would not negotiate under threat of a strike Park Inn made its first proposal, a package offer including, inter alia, a 4 percent wage increase, subject to reopen ing for an increase of up to 10 percent if the state permitted Park Inn to increase the rates it charged its clients, an increase in the work week from 35 to 40 hours, and a payment of $750 per month against Respondent Park Inn's $60,721 outstanding liability for trust funds payments through December 31, 1976, with a period of forgiveness for future contri- butions The proposal denied liability for the period from January 1, 1977, through June 30, 1978 No agreement was reached, and on July 25 the parties met again Local 144 announced that the strike notice had been extended, to take effect August 7 Local 144 then proposed retroactive incremental wage increases totaling $25 over the period be tween October 1, 1976, and March 1, 1978 Park Inn rejected this proposal, but indicated that it might increase its 4-percent wage offer if it could win some economic relief from the landlord of the premises The parties met again on July 31 Park Inn raised its proposed wage increase to 5 percent, with 1 year of retroactivity, and offered to pay the trust funds' delinquencies within 5 years According to Romano's testimony, Park Inn changed its position on prospective trust fund contributions at this meeting Local 144 rejected this proposal and pro- posed a 10 percent wage increase in the first year of the agreement, with a 7 5-percent increase in the second year Alternatively, Local 144 proposed that the parties agree to the terms of the expired agreement regarding all but wages, which would be submitted to interest arbitration Respondent Park Inn rejected these proposals 6 Romano stated that Respondent Park Inn would have to obtain concessions from some source, or it might be forced to surrender the lease and discontinue oper- ations Romano testified that he also agreed to dis cuss the indebtedness to the funds with Park Inn The parties met for the final time on August 7, in the presence of a Federal mediator At the meet ing, Romano announced that Park Inn was submit- ting a final offer and indicated that if the offer were not accepted Park Inn would consider the bargaining at an impasse In contrast to its previous offer in negotiations and the parties tentative agreement on some terms, Respondent Park Inn's offer eliminated any retroactivity for the proposed 5-percent wage increase, provided no uniform al- lowance, eliminated accrual and payment of unused sick leave, and provided for a payout of $750 per month on its trust fund obligations as opposed to payment within 5 years Although the 5 year pay- ment plan apparently was to apply only to contri butions before December 31, 1976, Romano testi feed that at that meeting Park Inn also offered to pay past contributions due and owing after January 1, 1977 In addition, Park Inn's proposal provided 6 The parties did reach tentative agreement on retaining the terms of the expired collective bargaining agreement regarding inter alia longevi ty pay uniform allowance sick leave and holidays PARK INN HOME FOR ADULTS 1085 for future contributions to Local 144's trust funds at the rates established under the Metropolitan New York Nursing Home Association's contract with Local 144, on the condition that Park Inn re ceive a 4-month period of forgiveness The propos- al's terms reiterated Romano's position that this was a package offer and that agreement on any item was contingent on agreement on all items On August 8 Godwin met with the unit employ- ees and informed them of Respondent Park Inn's "final offer " The employees voted to reject the offer and to strike On August 10 the Federal medi ator requested that the parties maintain the status quo and continue bargaining Romano asked Local 144 if the Union's negotiators could offer a new proposal if negotiations continued Local 144 re- sponded that they could not On August 11 Romano notified Local 144 that Park Inn intended to implement the terms of its August 7 offer on August 14 Romano also gave the Union a copy of a notice from Krausman to Local 144 employees, which listed the terms and conditions of employment under which the em- ployees would be required to work and stated that employees failing to conform to its provisions would be subject to "severe disciplinary measures and, if deemed appropriate by management, dis charged " This notice deviated from Respondent Park Inn's August 7 offer in this important respect whereas the August 7 proposal had provided for payout of Park Inn's trust funds' delinquencies and for continued payment into the funds after a 4- month forgiveness period, the notice announced that management had no further obligation with re- spect to contributions to Local 144's benefit funds and would thereafter provide injury or disability coverage to employees as required by law On August 14 Park Inn posted the notice to em ployees that was to become effective the following day After being informed by an employee of the posting, Godwin went to Park Inn's facility at 7 30 a in on August 15 and spoke to Krausman on his arrival She agreed to allow him to meet with the employees and summoned them to the lobby where they met with Godwin After Godwin had conferred with the employees for about 30 minutes, Krausman made an an- nouncement over the loudspeaker giving the em- ployees 15 minutes to return to work or leave the premises Godwin then returned to Krausman's office where he spoke with Romano on the tele- phone Godwin told Romano and Krausman that Local 144 wanted Park Inn to restore the status quo and continue negotiations Romano refused, telling Godwin that Park Inn had lawfully imple- mented its final offer and that the employees would have to return to work or leave the premises Godwin replied that the employees would not work under the posted conditions Krausman then summoned the police, who escorted the employees and Godwin out of the building Once outside, Godwin and the employees commenced picketing of the facility with signs stating that Respondent Park Inn had locked them out Local 144 had given no additional notice specifically announcing that a strike was to take place on August 15 Several significant events occurred concurrent with the negotiations leading up to August 14 Ac cording to testimony credited by the judge, about the time Local 144 contacted Park Inn on June 21 and the parties resumed negotiations in mid July, Krausman contacted Murray Kalik, an attorney who had a contract to purchase the building in which Park Inn was located, subject to the lease held by Krausman Krausman told Kalik that, in his words, she "was having an inordinate amount of trouble and would have to surrender the prem ises " Kalik began to seek a new tenant and located Respondent Osowsky, who signed a lease for the Park Inn premises and its personalty owned by Krausman, on August 3, 4 days before Romano presented Local 144 with Park Inn's "final offer "7 By August 11 Krausman herself had informed Park Inn's night manager, McCabe, that Krausman had surrendered her lease and that a new operator would be taking over the facility Several days before Park Inn posted and implemented its "final offer" on August 14, Respondent Osowsky con tracted with Jack Schulz, president of Travelers Maintenance Inc, a manpower leasing firm, to pro- vide employees to perform unit work commencing August 15 On August 14, the day before the posted conditions of employment took effect, Schulz hired a full complement of new employees to begin work at Park Inn between 7 and 8 am the next day The judge found, based on credited testimony, that Krausman, Kalik, and Osowsky determined that if Park Inn was unable to negotiate a favorable agreement with Local 144, they would rid the fa 7 The judge also found that Krausman s husband was Respondent Osowsky s landlord with respect to two other business ventures at the time the August 3 lease was signed The judge s findings also indicated that Osowsky s entrepreneurial investment in the Home was very small He paid no consideration for the lease and his personal liability under the lease was limited to the rent and any damages caused by his willful and malicious destruction of the property Finally although Osowsky s testi mony reveals that he commenced operating a fully equipped facility on August 15 Kahk testified that he did not own the personal property at Park Inn s premises and his testimony indicated that the lease covered only the real property Kahk Krausman and Osowsky each contend that no discussions were held nor any agreement reached regarding this per sonal property nor regarding the satisfaction of Park Inn s outstanding li abilities Indeed Osowsky testified that he did not discuss his acquisition of Park Inn with either of the Krausmans 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cility of the Union through a scheme centering on Osowsky's assumption of the lease on the Home's premises The judge found further that the lease ex- ecuted by Osowsky on August 3 and the agree ment between Osowsky and Travelers, in combina tion with a regressive final offer put forward while Park Inn continued to negotiate with Local 144 as if Krausman's status as operator remained un changed created a situation in which Local 144 would predictably reject the August 7 offer and provide Park Inn, from its point of view, with two desirable options to wait for the Union to strike and then replace the striking employees or to claim that impasse existed and implement its final offer In their exceptions, the Respondents urge a dif- ferent interpretation of these events Contrary to the judge, in their view Krausman testified credibly that during July she did meet with Kalik, but only to urge him to give her rent concessions in a good- faith effort to arrive at an agreement with Local 144, and that she did not actually decide to cease operations until August 15 The Respondents argue, inter alia, that the record shows that Park Inn bargained in good faith throughout the course of negotiations and that the August 7 offer repre- sented an advance over the July 31 offer, most no- tably in the area of payments of trust fund delin- quencies, as the August 7 offer encompassed pay- ments into the funds due since January 1, 1977 Further, the Respondents urge that Krausman knew nothing about it and was not involved in Kalik's successful efforts to obtain a new tenant and lease the facility's premises, including the per sonal property she herself owned Although the lease signed by Osowsky on August 3 contained no such conditions on its face, the Respondents further contend that both the lease and Osowsky' s agree ment with Travelers to supply employees on August 15 were conditioned on a possible future decision by Krausman to quit her leasehold and re linquish the premises Finally, the Respondents argue that Osowsky commenced operations at the Home only after the employees went on strike on August 15, and that he had no obligation to bar- gain with Local 144 as he did not hire any Park Inn employees but lawfully subcontracted all unit work to Travelers We reject the Respondents' interpretation of the evidence and the testimony as internally inconsist- ent and implausible Thus, we find no fault with the judge's credibility resolutions nor with his find ings of fact In this regard, based on the credited testimony of Schulz, Kalik, and McCabe, as well as on the lease signed by Osowsky and Kalik on August 3, we find, in agreement with the judge, that the purported transfer from Krausman to Osowsky, which the Respondents argue freed Osowsky to hire new employees to operate the fa- cility, was both decided on and set in motion before the August 15 date that the Respondents would have us attach to Krausman's decision There can be no doubt that Krausman was privy to Kalik's successful efforts to locate a new tenant before August 15, given the judge's crediting of Kalik's testimony that he informed Krausman that he had located a new tenant, Osowsky, before August 3 Additionally, McCabe's credited testimo- ny that Krausman informed McCabe on August 11 that Krausman was giving up her lease and that the facility would have a new operator partially cor- roborates Kalik's testimony because it shows that Krausman was aware before August 15 that a new tenant had been found Furthermore, the judge's findings are consistent with Osowsky's prior agree- ment with Travelers to provide employees on August 15 Consistent with our finding that Krausman was aware of the transfer of the facility to Osowsky, we conclude that Park Inn's failure to inform Local 144 of the imminent transfer indicates that the transfer was a scheme to circumvent the de mands of Local 144 rather than a bona fide arm's length transaction We further conclude that Park Inn's failure to inform Local 144 on and after August 7 that Krausman's status as the facility's op erator would change imminently and its explicit statements through counsel that Krausman was still seeking concessions from her landlord effectively and unlawfully rendered the Union unable to nego- tiate at and after the August 7 session and demon- strated that Park Inn's August 7 offer was tendered without the intent to arrive at an agreement Metro- politan Teletronics, 279 NLRB 957, 958 (1986), enfd mem 127 LRRM 2048 (2d Cir 1988) Thus, al though the record contains no basis for concluding that Park Inn bargained in bad faith before July 31, we agree with the judge that it did violate Section 8(a)(5) and (1) by engaging in bad faith bargaining on and after August 7 8 'In reaching his conclusions regarding Park Inns bargaining the judge relied in part on his finding that Respondent Park Inn s August 7 proposals were less palatable than those advanced previously We find it unnecessary to rely on the judge s analysis of the content of Park Inn s proposals or to determine whether the final offer was regressive in concluding that Park Inn advanced its final offer in bad faith In this regard as noted above in our view Krausman s actions during July and early August to relinquish her leasehold in order to construct a scenario whereby she could argue that she was no longer the operator of the facil ity while asserting at the bargaining table that she was seeking conces sions from her landlord provide ample evidence of Park Inn s underlying bad faith in negotiations on and after August 7 We also find it unneces sary to pass on the judge s reliance on the cited passage from NLRB v Reed & Prince Mfg Co 205 F 2d 131 (1st Cir 1953) cert denied 346 US 887 (1953) PARK INN HOME FOR ADULTS We also agree with the judge that the August 14 posting of the notice announcing changed condi tions of employment was an unlawful unilateral change 9 Further, we attach particular significance to this posting In our view, by threatening em ployees with discipline, including discharge, if they refused to work under the posted conditions, Park Inn presented the employees with an "either/or" proposition intended to vitiate the employees' right to strike in protest of Park Inn's unlawful acts or in support of their own economic interests In so doing, Park Inn deliberately presented its employ ees with a "Hobson's Choice," counting on the likelihood that the employees would refuse to work under the unlawfully posted conditions and thus pave their own way to discharge or replacement by the Travelers' employees We note further that Osowsky, Kalik, and Krausman timed the purport ed change of ownership to occur on the day that the notice went into effect, intending thereby to ef- fectively create a "no-win" situation for the em- ployees Thus, under the Respondents' own view that Osowsky was a "new" employer and that he therefore could supplant the unit employees with Travelers' employees as of August 15, the jobs of the employees would have been in jeopardy re- gardless of how the employees reacted to the post- ing This scenario, in effect orchestrated by the Re- spondents' actions, makes it difficult to determine the precise status of the employees as they left Park Inn's premises on August 15 The judge found that the employees were constructively discharged and, therefore, were entitled to reinstatement and backpay Alternatively, he found that they were unfair labor practice strikers whose status as such was protected despite the Union's failure to file a new strike notice under Section 8(g) of the Act We agree with the judge that the employees are entitled to reinstatement and backpay, but for the reasons stated below As an initial matter, while we agree with the judge that Park Inn violated Section 8(a)(5) by its B The judge did not reach the issue of whether the parties bargained to impasse before Park Inn implemented its final offer Thus he did not find that Park Inn violated Sec 8 (a)(5) by implementing an offer without having bargained to impasse as the complaint alleged We note however that Park Inn cannot claim a valid impasse here in light of the climate created by its own unfair labor practices set forth above in which the final stage of bargaining took place Taft Broadcasting Co 163 NLRB 475 (1967) See also Shipbuilders /Bethlehem Steel) v NLRB 320 F 2d 615 621 (3d Cir 1983) and cases cited there Hence Park Inn was obli gated to maintain the status quo and was not privileged at that stage of bargaining to implement even the exact terms of its final offer Moreover we note that with respect to the fringe benefit plans the implemented proposal was substantially and significantly different from Park Inn s final offer Accordingly we find that Respondent Park Inn violated Sec 8(a)(5) and (1) by unilaterally changing terms and conditions of employ ment effective August 15 1087 August 14 posting, we reject the judge's conclusion that the record justifies a finding that Park Inn thereby constructively discharged its employees on August 15 in violation of Section 8(a)(3) and (1) Thus, we find no indication that the employees re signed their employment on that date in response to the posted conditions Although the unlawfully implemented changes in the working conditions clearly motivated the employees to engage in a strike, it does not appear from the record evidence that they intended to resign Rather, it appears that their actions were intended to protest Park Inn's conduct, but not to terminate their employment re- lationship 10 We, however, agree with the judge's alternative conclusion that if Park Inn's employees were not constructively discharged then the employees struck on August 15 and the strike was in response to Park Inn's serious unfair labor practices This conclusion follows logically from the finding that the posting itself was unlawful, as the employees' refusal to work was clearly in response to the post- ing We further find that, despite Local 144' s failure to provide notice of the strike on August 15, these employees did not engage in unprotected activity and did not lose their status as employees We agree with the judge that, under the doctrine of Mastro Plastics Corp v NLRB, 350 U S 270 (1956), as applied in Hospital Employees District 1199E (CHC Corp), 229 NLRB 1010 (1977), and the later case Council's Center for Problems of Living, 289 NLRB 1122 (1988), Local 144 was excused from the notice requirement of Section 8(g) because the strike was triggered by sufficiently serious unfair labor practices In Mastro Plastics, the Supreme Court held an unfair labor practice strike to be pro- tected even though it violated a contractual no- strike clause The Board has construed Mastro Plas- tics as not affording protected status to all unfair labor practice strikes in violation of no-strike clauses, but only to strikes in response to "serious" unfair labor practices by employers Arlan's Depart ment Store, 133 NLRB 802, 807 (1961) As the Board noted in Hospital Employees District 1199E (CHC Corp), supra at fn 3, Congress in en- acting Section 8(g) made clear that a union would not be required to comply with that section's pro- visions in the event of a strike in response to an employer's unfair labor practices "as in Mastro Plastics Corp " (Citation omitted) See S Rep No 93-766 at 4, Coverage of Nonprofit Hospitals 10 In view of our finding that the employees did not intend to resign their positions on August 15 we need not reach the judge s finding that the conditions of employment unilaterally imposed by Park Inn on that date were sufficiently onerous to constitute constructive discharge 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD under the National Labor Relations Act, H R Rep No 93-1051 at 6 The legislative history thus does not indicate clearly the nature of employer unfair labor practices that would excuse a union from complying with Section 8(g) However, because Section 8(g) can be viewed as the equivalent of a statutory no-strike clause for the health care indus- try, Arlan's and its progeny can furnish guidance to the Board and the courts in determining whether particular unfair labor practices have been such as to render a strike in that industry protected, even if the requirements of Section 8(g) have not been met Normally, in other words, if a health care em- ployer's unfair labor practices would be deemed ` serious" under Arlan's, the Board would find a strike in response to those unfair labor practices protected whether or not the union has complied with the 8(g) notice requirements In applying Arlan's, the Board has found a per vasive pattern of bad faith bargaining by an em- ployer to be a sufficiently serious unfair labor prac tice that a strike in response did not lose its pro tected character, even in the face of a no-strike clause Television Wisconsin, 224 NLRB 722, 776 (1976), overruled on other grounds in 275 NLRB 278 (1985) Courts have enforced Board decisions finding strikes to be protected, notwithstanding no strike agreements, when the precipitating events were unilateral changes in terms and conditions of employment Isla Verde Hotel v NLRB, 702 F 2d 268 (1st Cir 1982) (unilateral change in retaliation for union's filing a charge, coupled with employer's refusal to negotiate), NLRB v Northeast Oklahoma City Mfg Co, 631 F 2d 669 (10th Cir 1980) Cf Caterpillar Tractor Co v NLRB, 658 F 2d 1242 (7th Cir 1981), Dow Chemical Co v NLRB, 636 F 2d 1352 (3d Cir 1980), cert denied 454 U S 818 (1981) (strikes found not protected when employ- ers' unilateral changes were based on arguable in- terpretation of management-rights clauses, and dis- putes were susceptible to resolution through griev- ance procedure) On the basis of the foregoing authorities, we find that Park Inn's actions in this case-bargaining in bad faith with the intention of provoking a strike by unlawfully implementing changed (for the worse) conditions and threatening employees with discharge if they did not accept the new condi- tions-were "serious" unfair labor practices within the meaning of Arlan's If anything, those actions were more serious violations of the Act than the employers' unlawful acts in Television Wisconsin, Isla Verde, and Northeast Oklahoma City, supra There can be no doubt that the Respondent acted as it did in gross bad faith, and with the aim of un- dermining and ultimately destroying the bargaining relationship between itself and the Union Accord ingly, we find that those unfair labor practices are the kind Congress had in mind when it analogized to Mastro Plastics in 1974, and that the employees' strike did not lose its protected character merely because the Union did not comply with the re- quirements of Section 8(g) In addition, we find that the particular circum stances of this case compel a conclusion that the employees did not lose their protected status by striking on August 15 Thus, we agree with the judge that the plan executed by Krausman, Kalik, and Osowsky to avoid dealing with Local 144 and to replace the employees represented by Local 144 with cheaper subcontracted labor reached its in tended outcome when the employees struck after Park Inn's new terms of employment went into effect on August 15 As we have found, Park Inn's August 7 proposal and all its subsequent bargaining steps, including its announcement of impasse and its posting and implementation of new conditions of employment, were tainted by bad faith Moreover, this calculated bad-faith bargaining and economic pressure occurred when Respondent Osowsky had already agreed to lease and operate the facility and had contracted for new employees-who had al- ready been hired-to staff it We conclude from these facts that whether the employees struck that day or in 10 days or did not strike at all, they were to be replaced by the Travelers' employees hired to do their jobs, and that by refusing to work under the posted conditions the employees, in effect, sprang the trap set for them by Park Inn In our view, the Act does not privilege any employer including an 8(g) health care institution, to embark on a deliberate plan to provoke employees into a strike, while intending to profit from the strike by using employees, already hired at lower pay, in place of the employees essentially impelled into a work stoppage 11 Thus, in view of all the circum " See Cedarcrest Inc 246 NLRB 870 876 (1979) in which the Board also excused a union from the 8(g) notice requirements See generally United States Ape & Foundry Co 180 NLRB 325 328 (1969) enfd sub nom Molders Local 155 v NLRB 442 F 2d 742 (D C Cir 1971) for its discussion of the potential unlawfulness of provoking employees to strike In making our findings concerning the Respondents plan here we do not suggest that an employer violates Sec 8(a)(5) or provokes a strike merely by secretly arranging for replacement employees in preparation for an anticipated strike Member Johansen does not pass on the applicability of Mastro Plastics supra to this case Given the compelling circumstances of this case how ever Member Johansen agrees with his colleagues that the striking em ployees did not lose their protected status when they engaged in a work stoppage beginning August 15 A comparison of some of the terms and conditions of employment posted on August 14 to those the employees had enjoyed under the ex pired contract illustrates the choice that the employees faced and con firms the predictable effect of the posting on the employees First imple mented proposals lengthened the employees work week from 35 to 40 Continued PARK INN HOME FOR ADULTS stances of this case, including the Union's two pre- vious and legally sufficient strike notices, we find that the Park Inn employees who engaged in an unfair labor practice strike on August 15 did not thereby lose their status as employees 12 It remains for us to determine whether the strik- ers are entitled to reinstatement This issue turns on whether or not Park Inn discharged them after the commencement of the work stoppage 13 In this regard, in determining whether striking employees have been discharged, "the events must be viewed through the striker's eyes and not as the employer would have viewed them " Trident Recycling Corp, 282 NLRB 1255, 1260 (1987) Furthermore, the burden of any ambiguity created by a respondent's actions falls on the respondent Pennypower Shop- ping News, 253 NLRB 85 (1980), enfd 726 F 2d 626 (10th Cir 1984) In this case, we believe that Park Inn either discharged the striking employees or engaged in conduct that caused them reasonably to conclude that, once they failed to return to work under the posted conditions, their employ- ment with Park Inn had been terminated The posting informed employees clearly that if they would not work under the posted conditions they would be subject to severe discipline, and, "if deemed appropriate," discharge A refusal to work under the posted conditions could consist of little else other than a work stoppage, or a strike There- fore, in light of Krausman's ultimatum to the em ployees and Romano's similar ultimatum to Godwin to the effect that if the employees would not work under the posted conditions they must leave the premises, when the employees were es- corted from the building by the police and saw hours while granting a pay increase of 5 percent resulting in a reduction in hourly wage rates Second the posted proposals revoked other terms of employment such as the uniform allowance payment of accrued sick leave (previously paid to employees just before Christmas) payment of $5 for split shift work and payment of a 10-percent differential for night shift work The posting also stated that Park Inn had no obligation to provide its employees with contractual health pension and welfare bene fits beyond those mandated by law We note that in NLRB v California School of Professional Psychology 583 F 2d 1099 (9th Cir 1978) the court denied enforcement to California School of Professional Psychology 227 NLRB 1657 (1977) cited by the judge in Cedarcrest in support of a point not relevant here The court s ruling does not affect the portion of the latter case to which we allude here 12 In finding that the strike was not unprotected we rely not only on those unfair labor practices the full facts and import of which were known to employees but also on those unlawful acts the import of which was not clear to employees as a result of Park Inn s successful conceal ment of relevant facts Cf Gulf Envelope Corp 256 NLRB 320 325-326 (1981) In finding that Park Inn s unfair labor practices triggered the strike under the circumstances of this case Member Cracraft does not distin guish between those unlawful acts that the employees knew to be unfair labor practices and those acts the impact of which Park Inn had success fully concealed from the Union and the employees is This determination is significant because the record does not estab lish the existence of any request for reinstatement on behalf of the stnk ing employees 1089 new employees begin to arrive virtually simulta- neously to perform their jobs, it would have been more than reasonable for them to conclude that Park Inn had indeed discharged them for their re- fusal to work under the unlawfully imposed condi- tions Therefore, we find that Park Inn either dis- charged the employees or caused them reasonably to believe that they had been discharged in viola tion of Section 8(a)(3) and (1) of the Act Accord- ingly, we shall order their reinstatement despite the lack of evidence in the record that a request for re- instatement has been made on their behalf Penny power Shopping News, supra, 253 NLRB at 86 CONCLUSIONS OF LAW I Malvina Krausman, Sally Perlberg, and Leon Perlberg d/b/a Park Inn Home for Adults, Pinkus Osowsky d/b/a New Park Inn Home for Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel Konig d/b/a Park Inn, are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Pinkus Osowsky d/b/a New Park Inn Home for Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel Konig d/b/a Park Inn and each of them, are alter egos of Park Inn Home for Adults 3 All service and maintenance employees em- ployed by the Respondents at 115-02 Ocean Prom enade, New York, New York, excluding all other employees, guards, and supervisors as defined in Section 2(11) of the Act constitute a unit appropri- ate for collective bargaining within the meaning of Section 9(b) of the Act 4 Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO, and Local 143, Office, Service and Allied Workers Union, AFL-CIO, are labor organizations within the meaning of Section 2(5) of the Act 5 Local 144 is now, and has been at all times material to this proceeding, the representative for the purposes of collective bargaining of a unit of Respondent Park Inn's employees appropriate for collective bargaining 6 By advancing its final offer in negotiations for a collective-bargaining agreement with Local 144 in bad faith, and by unilaterally implementing terms and conditions of employment on August 15, 1978, without having bargained to a valid impasse, Re- spondent Park Inn violated Section 8(a)(5) and (1) of the Act 7 By discouraging membership in the above- named Union by terminating or causing its employ- ees reasonably to conclude that their employment had been terminated for engaging in protected con- certed activities and pursuant to a plan to create alter ego entities for the purpose of avoiding the 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD obligation to bargain with Local 144, Respondent Park Inn has violated Section 8 (a)(3) and (1) of the Act 8 By soliciting employees to sign authorization cards for Local 143, Office, Service and Allied Workers Union, AFL-CIO, and by recognizing and maintaining contractual relations with that Union at a time when it did not represent an un- coerced majority of employees in an appropriate bargaining unit, and when it was legally obligated to recognize and bargain with Local 144 as the ex clusive representative of the employees in the unit described above, Respondent Osowsky violated Section 8(a)(2) and (1) of the Act ORDER The National Labor Relations Board orders that the Respondents, Malvina Krausman, Sally Perl berg and Leon Perlberg , copartners d/b/a Park Inn Home for Adults, Pinkus Osowsky, individual- ly d/b/a New Park Inn Home for Adults, Marvin Beinhorn, individually d/b/a Park Inn, and Samuel Konig, d/b/a Park Inn, New York, New York, shall 1 Cease and desist from (a) Failing and refusing to recognize and bargain with Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union , AFL-CIO as the ex- clusive collective-bargaining agent of the employ- ees in the following appropriate unit All service and maintenance employees em- ployed at 115-02 Ocean Promenade , NY, NY, excluding all other employees, guards, and su- pervisors as defined in Section 2(11) of the Act (b) Advancing its final offer in negotiations for a collective-bargaining agreement with Local 144 in bad faith, and unilaterally, and without bargaining to valid impasse with the Union , altering the wages, hours, and other conditions of employment of employees (c) Discouraging membership in the above named Union by terminating employees or causing them reasonably to conclude that their employment has been terminated for engaging in protected con- certed activities and pursuant to a plan to create alter ego entities for the purpose of avoiding the obligation to bargain with Local 144, or by dis- criminating against employees in any other manner in regard to their hire or tenure of employment, or any other terms or conditions of employment (d) Soliciting employees to sign authorization cards for Local 143, Office , Service, and Allied Workers Union, AFL-CIO and recognizing and maintaining contractual relations with that Union, or any other labor organization , that does not rep resent an uncoerced majority of employees in an appropriate bargaining unit, at a time when it is le- gally obligated to recognize and bargain with Local 144 as the exclusive representative of the employees in the unit described above (e) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Recognize and, on request, bargain with Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO as the exclusive collective bargaining agent of the employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement (b) Reimburse employees for all moneys for dues, fees, and initiation fees that were unlawfully deducted from their wages and remitted to Local 143 to the extent that such has not been accom- plished by Travelers Maintenance, Inc (c) Offer the employees who were terminated on August 15, 1978, or whom Respondent Park Inn's conduct placed in the position of reasonably con cluding that their employment had been terminat ed, immediate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, dismissing if necessary any persons hired on August 14, 1978, or thereafter to replace them, and make the employees whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them, with interest 14 (d) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the dis charges will not be used against them in any way (e) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (f) Post at its facility at 115-02 Ocean Prome- nade, New York, New York, copies of the attached notice marked "Appendix "15 Copies of the notice, 14 Interest shall be computed in the manner prescribed in New Horizons for the Retarded 283 NLRB 1173 (1987) ib If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board PARK INN HOME FOR ADULTS 1091 on forms provided by the Regional Director for Region 29, after being signed by the Respondents' authorized representative, shall be posted by the Respondents immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT fail and refuse to recognize and bargain with Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO as the exclusive collective bargaining agent of the em- ployees in the following appropriate unit All service and maintenance employees em- ployed at 115-02 Ocean Promenade, NY, NY, excluding all other employees , guards, and su- pervisors as defined in Section 2(11) of the Act WE WILL NOT advance our final offer in negotia- tions for a collective bargaining agreement with Local 144 in bad faith, and WE WILL NOT unilater ally, and without bargaining to valid impasse with the Union, alter the wages , hours, and other condi- tions of employment of our employees WE WILL NOT discourage membership in the above-named Union by terminating employees or causing them reasonably to conclude that their em- ployment has been terminated for engaging in pro- tected concerted activities and pursuant to a plan to create alter ego entities for the purpose of avoid- ing the obligation to bargain with Local 144, or by discriminating against employees in any other manner in regard to their hire or tenure of employ ment, or any other terms or conditions of employ- ment WE WILL NOT solicit employees to sign authori- zation cards for, and WE WILL NOT recognize and maintain contractual relations with, Local 143, Office, Service, and Allied Workers Union, AFL- CIO, or any other labor organization that does not represent an uncoerced majority of employees in an appropriate bargaining unit, at a time when we are legally obligated to recognize and bargain with Local 144 as the exclusive representative of the employees in the unit described above WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL recognize and, on request, bargain with Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO as the ex- clusive collective-bargaining agent of the employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and if an understanding is reached, embody such under- standing in a signed agreement WE WILL reimburse employees for all moneys for dues, fees, and initiation fees that were unlaw fully deducted from their wages and remitted to Local 143 to the extent that such has not been ac- complished by Travelers Maintenance, Inc WE WILL offer the employees who were termi nated on August 15, 1978, or whom our conduct placed in the position of reasonably concluding that their employment had been terminated, imme- diate and full reinstatement to their former jobs or, if such jobs no longer exist, to substantially equiva- lent positions, dismissing, if necessary, any persons hired on or after August 15, 1978, or thereafter to replace them, and WE WILL make such employees whole for any loss of earnings they may have suf- fered as a result of the discrimination practiced against them, with interest 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL notify each of them that we have re- moved from our files any reference to their dis- charge and that the discharge will not be used against them in any way MALVINA KRAUSMAN, SALLY PERL- BERG AND LEON PERLBERG, COPART NERS D/B/A PARK INN HOME FOR ADULTS, PINKUS OSOWSKY, INDIVID- UALLY D/B/A NEW PARK INN HOME FOR ADULTS, MARVIN BEINHORN, IN- DIVIDUALLY D/B/A PARK INN, AND SAMUEL KONIG, D/B/A PARK INN Lauren Rich Esq, counsel for the General Counsel Frank Romano Esq, of New York, New York, for Re spondents Malvina Krausman, Sally Perlberg and Leon Perlberg, copartners d/b/a Park Inn Home for Adults John H Yauch Jr Esq (Yauch Peterpaul & Clark), of Springfield, New Jersey, for Respondent Marvin Bein horn Benjamin H Segal Esq, of New York, New York for Respondent Pinkus Osowsky Harold R Weinrich Esq and Jo Anne Morley Esq (Jack son Lewis Schnitzler & Krupman), of New York, New York for Respondents Malvina Krausman, Sally Perl berg and Leon Perlberg, copartners d/b/a Park Inn Home for Adults and Respondent Samuel Konig David Lew Esq (Bert & Lew), of New York, New York for Respondent Travelers Maintenance Robert A Cantore Esq and Andrew Schultz Esq (Na deck Waldman Elias & Engelhard P C) of New York, New York, for the Charging Party DECISION STATEMENT OF THE CASE DONALD R HOLLEY, Administrative Law Judge On original charges filed in Cases 29-CA-6645 and 29-CA- 6705, a consolidated complaint was issued on October 30, 1978 1 against Malvina Krausman Sally Perlberg and Leon Perlberg d/b/a Park Inn Home for Adults (Re spondent Park Inn) Pinkus Osowsky d/b/a New Park Inn Home for Adults (Respondent New Park Inn or Osowsky), and Travelers Maintenance Inc (Respondent Travelers), which alleged violation of Section 8(a)(1), (2), (3) and (5) of the National Labor Relations Act In substance the consolidated complaint alleged that Re spondent Park Inn negotiated with Local 144, Hotel, Hospital, Nursing Home and Allied Health Services Union, AFL-CIO (Local 144 or the Union) in bad faith from February 28 1978, forward that on August 14 Park Inn unilaterally changed the existing wages hours and other conditions of employment of bargaining unit employees represented by Local 144, without bargaining to impasse with the Union that on August 15 Park Inn locked out or fired employees represented by Local 144 ' All dates are 1978 unless otherwise indicated because they would not work under the conditions an nounced by Park Inn on August 14, that Respondent New Park Inn, which commenced operations on August 15, is the alter ego and successor to Respondent Park Inn that Respondent Travelers which commenced to supply employees to New Park Inn on August 15, and the latter named Respondent are joint employers of spec ified employees, that Respondent New Park Inn contin ued after August 15 to lock out and failed to reinstate the Park Inn employees who were locked out or fired on August 15, that Respondents New Park Inn and Travel ers unlawfully assisted Local 143, Office, Service and Allied Workers Union, AFL-CIO (Local 143) in August 1978 by soliciting the signatures of New Park Inn em ployees on Local 143 authorization cards and by entering a collective bargaining agreement with Local 143 at a time when it did not represent an uncoerced majority of New Park Inn employees, and that picketing by employ ees, who were locked out or discharged on August 15, was caused or prolonged by the unfair labor practices of Respondents Park Inn, New Park Inn, and Travelers The named Respondents filed timely answers denying they had engaged in the unfair labor practices set forth in the consolidated complaint On September 11, Local 144 filed the original charge in Case 29-CA-6645-2 On November 8, a complaint was issued in that case In substance, that complaint al leged that Respondent Park Inn and Respondent New Park Inn violated Section 8(a)(1) (3) and (5) of the Act by failing since March 11, 1978, to make contributions to the Local 144 Employee Benefit Funds Respondents Park Inn and New Park Inn filed timely answers denying they engaged in the unfair labor practices alleged in the November 8 complaint and on March 5 1979 the Region issued an order consolidating all the above men tioned cases for trial Thereafter, on June 20 1979, the Region amended the consolidated complaint by naming Local 143 as a party in interest On October 10, 1979 Local 144 filed the original charge in Case 29-CA-7540 and on December 31, 1979 the Region issued second order consolidating cases amended consolidated complaint and notice of hearing (the complaint) which consolidated Case 29-CA-7540 with Cases 29-CA-6645, 29-CA-6705, and 29-CA-6645- 2 for trial Summarized, the complaint realleged the mat ters set forth in earlier complaints and additionally al leged that since June 1 1979 Marvin Beinhorn d/b/a Park Inn (Respondent Beinhorn) operated the subject home for the aged as the successor to Respondent Park Inn and Respondent New Park Inn and that Respondent Bemhorn violated Section 8(a)(1), (3) and (5) of the Act since June 1 1979 by continuing to lock out and to refuse to reinstate the employees locked out or dis charged on August 15 1978, and by failing to make con tributions to the Local 144 Employee Benefit Funds Each of the named Respondents denied they had en gaged in the unfair labor practices attributed to them in the complaint 2 2 On April 10 1979 the Region issued an order renumbering certain paragraphs of the complaint and amended the complaint by setting forth jurisdictional allegations relating to Respondent Travelers operations PARK INN HOME FOR ADULTS The trial was commenced in Brooklyn, New York, on June 16 1980 On June 17, a settlement stipulation be tween the General Counsel Respondent Travelers and the Union was reached and approved by me 3 Thereaf ter, Respondent Travelers took no active part in the trial The trial continued on various dates during July and August, and on August 19, 1980, it was recessed sine die, pending compliance by Respondents Park Inn New Park Inn, and Beinhorn with a non Board settle ment agreement On January 13, 1982, counsel for the General Counsel moved to reopen the record and resume the trial for fail ure of the Respondents to comply with the terms of the non Board settlement agreement The teal was resumed on June 1, 1982, and at that time Samuel Konig the present operator of the Park Inn Home for Adults, moved to intervene in the proceeding as a party in inter est Thereafter on July 7, 1982, counsel for the General Counsel served on Respondents Park Inn New Park Inn, Beinhorn and Samuel Konig notice of intention to amend, which signified she intended to amend the com plaint, inter alia to name Samuel Konig as a Respondent and successor to Respondent Beinhorn, and to require that Respondent Konig, as successor to Respondent Beinhorn, remedy the unfair labor practices described in paragraphs 13 through 17, 19, 20, 25, 26, 29(a), 31(a) and 32 of the complaint When the trial resumed on July 12, 1982, over objection, I granted the General Counsel s motion to amend the complaint as indicated immediately above The trial continued on July 13 and 14, 1982, and from September 7-10, 1982, when the record was closed Counsel for the General Counsel and counsel for Re spondents Park Inn and Konig filed posthearing briefs which have been carefully considered On the entire record in the case and from my observation of the wit nesses while they testified I make the following FINDINGS OF FACT I JURISDICTION Respondent Park Inn denied the commerce allegations set forth in paragraphs 2(a) through (e) of the complaint Malvina Krausman, the sole owner of Park Inn Home for Adults since some unstated time in 1976 indicated during her testimony that from 1971 until 1976 she Sally Perlberg and Leon Perlberg operated a home for aged adults at 115-02 Ocean Promenade Queens, New York and that from 1976 until August 15 1978, she operated the facility as a sole proprietor She testified the facility has 181 beds and that during the 12 month period pre ceding August 15 1978, an average of 160 beds were oc cupied by residents who each paid Respondent Park Inn in excess of $300 per month It is undisputed that Re spondent Park Inn employed a number of individuals in various job classifications to care for residents of the home at all times material On the above facts I find that Respondent Park Inn s gross revenue during the 12 month period preceding August 15, 1978 exceeded $100000 and that jurisdiction over Respondent Park Inn should be asserted pursuant to 3SeeGC Exh 2 1093 the discretionary standard for the assertion of jurisdiction over health care facilities announced by the Board in University Nursing Home 168 NLRB 263 (1967)' I fur ther find that Respondent Park Inn is as alleged in the complaint an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act It is undisputed that Pinkus Osowsky operated the home for adults involved in this case from August 15 1978 until approximately June 1, 1979 The complaint al leges and Respondent New Park Inn admits, that during the described period, Respondent New Park Inn s gross revenue exceeded $100 000, and that during the same period it purchased from local suppliers goods, materials and supplies valued at in excess of $50 000 which were in turn received by these suppliers from points located out side the State of New York It is admitted, and I find, that Respondent New Park Inn was at all times material an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act The record reveals that Marvin Beinhorn d/b/a Park Inn operated the home for the aged involved herein from approximately June 1, 1979, until June 1, 1981 The com plaint alleges, and Respondent Beinhorn s answer admits, that its annual gross revenues exceed $500,000, and it an nually purchased from local suppliers goods and materi als valued at in excess of $50 000, which were, in turn, received directly by the suppliers from points located outside the State of New York It is admitted, and I find that at times material Respondent Beinhorn was an em ployer engaged in commerce within the meaning of Sec tion 2(2) (6) and (7) of the Act II STATUS OF LABOR ORGANIZATION It is undisputed, and I find, that Local 144 Hotel Hospital Nursing Home and Allied Health Services Union, AFL-CIO, and Local 143 Office, Service and Allied Workers Union, AFL-CIO (Local 143 and/or Party in Interest) are labor organizations within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Facts 1 Overview of the case When Respondent Park Inn commenced to operate a home for the aged at 115 02 Ocean Promenade in New York City in 1970 it recognized the Union as the collec tive bargaining agent for its service and maintenance em ployees 5 Thereafter, the Union and Park Inn were par 4 While the jurisdictional standard set forth in University Nursing Home supra does not appear to require proof of facts that would establish legal jurisdiction Malvina Krausman testified the facility is heated with natural gas and General Counsel witness Ross A Caplan an engineer with Long Island Lighting Company credibly testified his firm supplied the natural gas utilized by Respondent Park Inn during 1978 and that all the natural gas supplied by Long Island Lighting Company in 1978 came from points located outside the State of New York I find such facts es tablish that the Board has legal jurisdiction over Respondent Park Inn 5 The complaint alleges that the appropriate bargaining unit to be all service and maintenance employees employed at the Ocean promenade Continued 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ties to three successive collective bargaining agreements, the last of which expired by its terms on October 31 1976 The agreements obligated Park Inn to make specs feed contributions to certain trust funds, i e , welfare, pension, dental and educational trust funds, and the fa cility became delinquent in its trust fund contributions as early as 1972 It has failed completely to make the re quired contributions since December 11, 1974 At some point after the most recent agreement expired, the Union obtained an arbitration award for $60,721 12 represent ing delinquencies during the period January 1, 1972 to December 31, 1976 By letter dated December 20 1976 Respondent Park Inn sought to sever its contractual rela tionship with the Union and it has claimed since that time that it is not legally obligated to make further con tributions to the trust funds In the fall of 1976, the parties commenced negotiations for a new agreement Several meetings were held during 1976 and 1977 but no agreement was reached In mid 1978, serious negotiations were conducted for approxi mately 1 month with the Union seeking additional bene fits and Park Inn seeking to reduce existing benefits On August 15 1978, Park Inn implemented a so called last offer and the bargaining unit employees ceased work and commenced to picket the facility When the employees left the premises on August 15, 1978 Malvina Krausman, the owner, vacated the facility and Rabbi Pinkus Osowsky supposedly assumed owner ship and control of the business Osowsky paid noth ng for the business and he staffed the facility with employ ees provided by an independent contractor, Travelers Maintenance Subsequently Travelers recognized Local 143 as the bargaining agent for the housekeeping and maintenance employees working in the home When Osowsky was notified in early May 1979 that the New York State Department of Social Services would not issue him an operating certificate, Marvin Beinhorn sup posedly assumed ownership and control of the facility Beinhorn, who initially utilized the employees working in the facility when he assumed control also paid noth ing for the business In mid 1981 Beinhorn who had failed during his 2 year association with the facility to obtain an operating certificate abandoned the business and control was assumed by Samuel Konig Because Konig paid nothing for the business, he agreed to pay Beinhorn the profit the latter earned while operating the business As indicated above the General Counsel claims that Respondents Park Inn New Park Inn, Betnhorn, and Travelers violated the Act in numerous respects While Konig is not charged with violating the Act the General Counsel has by alleging that he is a successor to Bein horn, sought to compel him to remedy the unfair labor practices committed by others The individual allegations are discussed below adult home exclusive of all other employees guards and all supervisors as defined in Sec 2(11) of the Act It is undisputed and I find the unit described is an appropriate bargaining unit 2 The alleged surface bargaining The contract negotiations involved in this case oc curred between December 14, 1976 and August 7 1978 The parties held only seven negotiating sessions during the period in question, and there were several long hia tuses between sessions Testimony and evidence reveal ing what occurred during the period extending from De cember 14, 1976, to February 28, 1978, will be consid ered only for the purpose of shedding light on the nego tiations that occurred subsequent to the latter date, which is the Section 10(b) date 6 The December 14 1976 session Pursuant to Union Business Agent Fran Dunham s Oc tober 26, 1976 letter, the Union and Respondent Park Inn met on December 14, 1976, to renegotiate the collec tive bargaining agreement which had expired on Octo ber 31, 1976 Dunham represented the Union and Frank Romano, an attorney, represented Respondent Park Inn Prior to the session under discussion, Dunham had supplied Romano with the Union s proposals They are embodied in an exhibit placed in evidence as Respondent Krausman s Exhibit 29 While Romano appeared as a witness in the instant case Dunham did not Romano testified that when he was presented with the above described document he recognized the proposals as terms of the then subsisting collective bargaining agreement between the Metropoli tan New York Nursing Home Association, Inc and Local 144 7 According to Romano Dunham informed him that the Union s aim in negotiations with Respond ent Park Inn was to attempt to negotiate what could be used as a master agreement for homes for the aged in the New York area and the Unions desire was that the wages and benefits received by Park Inn bargaining unit employees would be elevated to the level of the wages and benefits then being enjoyed by blue collar workers pursuant to the master nursing home agreement Ro mano s response was that the nursing home agreement could not realistically be used as a guide to the parties negotiations because homes for the aged did not generate the revenues generated at nursing homes Romano fur ther indicated he did not intend to respond to the Union s proposals until it abandoned the nursing home concept 8 6 ThP original charge in Case 29-CA-6645 was filed on August 30 1978 7 See Respondent Krausman s Exh 31 s Briefly summarized the Union s proposals were To change the minimum wage of unit employees from $150 to $193 per week To retain a 35 hour workweek and a 7 hour day To retain two 15 minute breaks To change from 15 to 18 sick days To provide for 3 weeks vacation after 4 rather than 5 years and in clude a clause providing for 5 weeks vacation after 15 years To change from 12 to 14 holidays To increase the uniform allowance from $2 to $5 per week To increase longevity pay from a maximum of $3 per week after 10 years to $ I more each week after 4 years To change shift differential from 10 to 15 percent Continued PARK INN HOME FOR ADULTS 1095 The November 11, 1977 bargaining session Pursuant to the Union s letter dated October 13, 1977, requesting resumption of negotiations the parties met at the Park Inn on November 11 1977 9 The Union was represented by Willie Godwin the business agent then assigned to service the employees at the facility John Burke, and an employee committee Respondent Park Inn was represented by Attorney Romano, Krausman, and Himber Godwin and Romano gave testimony concerning the session Godwin testified that the Union submitted proposals that were based on the master nursing home contract to Respondent Park Inn at this session He indicated Romano stated that due to the structure and reimburse ment of homes for adults there was no way they could use the nursing home association contract as a guideline in negotiations Finally, he testified he agreed with Romano and the meeting ended when he signified he would prepare and submit new proposals 1° The December 1977 bargaining session While the parties agreed at the close of the November negotiation session to meet later in November, Attorney Romano subsequently pleaded the press of other business would prevent him from participating and requested that negotiations be resumed on a date subsequent to Decem ber 5, 1977 The record fails to reveal the precise date on which the parties met in December At the session under discussion Krausman acted as Respondent Park Inn s principal spokesperson and the Union was represented by Godwin, John Kelley (secre tary treasurer) and an employee committee Godwin gave testimony concerning the meeting To retain bereavement pay at 3 days for siblings and 5 days for imme diate family To change paternity pay from 3 to 5 days To retain the 6 month leave of absence and 10 month maternity leave provisions To change jury duty pay by providing that rather than paying differ ence employer would pay full salary and employee would reimburse home with court check To retain contributions of 8 1/2 percent of gross to a welfare fund I percent to educational and dental funds and 3 1/2 percent to pension fund To institute the grievance procedure set forth in the matter nursing home agreement To provide for 3 days paid marriage leave To provide for 50 cents per week transporation allowance To provide for $2 per day meal allowance if home did not provide meal To furnish lockers and rest area for employees s Subsequent to December 14 1976 no further negotiation sessions were held until November 11 1977 During the hiatus attorney Romano continued to represent Respondent Park Inn in a trust fund delinquency matter and it is undisputed that no one affiliated with the Union men tioned resumption of negotiations to him until September 19 1977 Simi larly no formal communications requesting further contract negotiations were sent by the Union to Respondent Park Inn until October 13 1977 Although Business Agent Dunham was replaced by Willie Gordy as busi ness agent for Park Inn employees at a time that Godwin placed as May 1977 in a pretrial affidavit and Godwin claims he repeatedly asked Mal vina Krausman to resume negotiations during visits to Park Inn in 1976 and 1977 Godwin s propensity to confuse dates during his appearance as a witness coupled with Krausman s denial that he requested that negotia tions be resumed cause me to decline to credit Godwin s assertions 10 The record fails to adequately reveal which proposals were submit ted on the date in question Godwin indicated that he presented Krausman with the proposals embodied in exhibits placed in the record as Respondent s Krausman s Exhibit 4 and General Counsels Exhibit 38 at the December session He testi fled Krausman s response was she did not have any money and would have to talk to Attorney Romano The proposals set forth in the exhibits in question are identical They are Duration 2 year contract Hours 35 hours per week, 7 hours per day-5 consecutive days per week All work in excess of 7 hours per day or 35 hours per week to be paid at the rate of time and a half Wages 30 percent increase Cost of Living $2 per point in excess of 5 points Breaks Two 15 minute breaks per shift, 1 hour for lunch Uniform Allowance $4 per week Weekends Every other weekend off Meal Allowance $2 per shift if not provided by the home Vacation 1 week after 6 months 2 weeks after 1 year, 3 weeks after 3 years, 4 weeks after 6 years Sick Leave 18 days per year All unused sick leave to be paid I week before Christmas or upon termination of employment for any reason Holidays 18 days per year All work performed on a holiday to be paid double time Paid Leaves Bereavement-7 days for spouse and child 5 days for immediate family Paternity-5 days Marriage-5 days Jury Duty-no loss of pay Shift Diff 10 percent for afternoon and evening shifts Longevity After 3 years-$2 After 5 years-$4 After 8 years-$6 Welfare 10 percent of gross payroll Pension 2 percent of gross payroll Dental 2 percent of gross payroll Educational 2 percent of gross payroll While Attorney Romano did not attend the December 1977 bargaining session he testified without contradic tion that after he received a copy of the proposals the Union gave to Krausman at the bargaining session under discussion,"' he discussed the proposals with Godwin on the telephone Romano testified he told Godwin it ap peared to him that the Union was still requesting nursing home benefits, that the demand for 10 percent of a gross for welfare even exceeded the 8 1/2 percent figure in the expired nursing home contract, and that the proposed 30 percent wage increase was higher than that one original ly requested by Dunham Godwin replied he was un aware of a Dunham proposal, that he would review the proposals and get back to Romano i l The document received by Romano was placed in the record as R Krausman s Exh 35 Inspection of the exhibit reveals at least part of the proposal was prepared by the Union for presentation to the nursing home 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Romano testified without contradiction that he heard nothing further from Godwin or the Union until the latter notified Krausman by letter dated June 21, 1978, that it desired to resume negotiations 12 The July 12, 1978 bargaining session By letter dated July 11 1978 the Union gave notice to Respondent Park Inn and the state and Federal Media tion Services that it intended to strike and picket at the Park Inn on July 26, 1978 13 Pursuant to arrangements made after Respondent Park Inns receipt of the Union s June 21, 1978 letter, the next negotiation session was held at the Union s offices on July 12 1978 Godwin, Kelley and an employee group represented the Union Romano and Krausman repre sented the Park Inn Romano stated at the outset of the July 12 session that he would not negotiate under a strike threat In addition he complained because he had not been contacted by Godwin or Kelley before a strike notice had been sent After Kelley indicated that the strike deadline could be extended if the parties were bargaining the Union mdi cated its demands remained the same, that they were pri marily interested in wages and the delinquencies to the trust funds Romano said that Park Inn had lost money, could not even afford the old contract, and could not afford the contract proposed by the Union At some point, Romano invited the union negotiators to review Park Inn s financial records or as an alternative, invited the Union to conduct a survey of the wages and benefits paid by other homes for the aged in the area Romano indicated Respondent Park Inn would meet an area standard wage and benefit scale While Kelley had indi cated at the beginning of the session that the Union was not interested in retroactivity Romano recalled he wanted retroactivity on all economic items by the end of the session 14 The Union evidenced no interest in look ing at Park Inn s books or conducting a survey to ascer tarn the average wage and benefits paid by other homes to their employees No agreement was reached during the session The July 20 1978 bargaining session The parties met on July 20 1978 at the Unions of faces Respondent Park Inn was represented by Attorney Romano and Krausman John Kelley, Frank McKinney David Pope (representative from the Funds) and an em ployee committee represented the Union After stating he would not negotiate under a threat of a strike Romano made counterproposals to the Union s demands His notes made during the session were re ceived in evidence and they reflect Park Inn s position at the time 15 Park Inn proposed inter alia 16 1 Term- Romano proposed 3 year term extend ing from 11/1/76 to 10/31/79 The Union indicated it wanted a 2 year term and agreement was reached 2 Hours-Park Inn proposed 40 hour week 8 hour day Rotating weekend with split days No overtime for the sixth day if caused by rotating weekend, time and a half for seventh consecutive day or in excess of 8 hours per day 3 Wages-4 percent base increase When and if rates increase, reopener for increase up to 10 per cent 4 Cost of Living-Union s proposal rejected 5 Uniforms-Park Inn to supply uniforms No al lowance 7 Meal Allowance-Agree to Union s demand 8 Vacation-Union s proposal rejected Vacation schedule in expired contract proposed 9 Sick Leave-Union s proposal rejected Sched ule in expired contract proposed but no accrual of unused sick leave 10 Holidays-Union s proposal rejected Contin ue existing schedule 11 Paid Leaves (a) Bereavement-Agree to 7 days for spouse and child Reject 5 days for immediate family Propose 3 days limited to parents and siblings (b) Paternity-Reject 5 days and offer 3 days (c) Marriage-Agree to 5 days one time during contract (d) Jury Duty-Agree to proposal 12 Shift Differential-Rejects proposal and wants to eliminate all differential pay Mgmt will consider elimination of split shift 13 Longevity-Reject proposal and continue ex isting schedule 14 Severance-Reject Offer none 15 Sanitary Conditions-Agree to proposal 16 Transportation-Reject proposal and makes no offer 17 Funds (a) Arbitration award-$60721-pay out at $750 00 per month until fully paid (b) Period 1/1/77 6/30/78-No liability (c) Increased contributions-Mgmt rejects proposals and wants forgiveness for period of time competitive with other facilities 12 Godwin testified he repeatedly sought to get Krausman to resume negotiations during visits to the home subsequent to the December 1977 meeting but he failed to provide specifics While I am inclined to credit his assertion that he spoke with Krausman concerning the need to contra ue negotiations I am unwilling to find that he made requests which were ignored subsequent to February 28 1878 (the 10(b) date) in the absence of specific testimony 13 R Krausman s Exh 12 14 Godwin testified the Union never asked for retroactivity on any thing other than wages and fund contributions I find Romano erroneous ly concluded Kelley was requesting retroactivity on all economic items The July 25, 1978 bargaining session On July 25 1978, the parties met at the Unions of fices Attorney Romano and Krausman represented Park Inn and the Union was represented by Kelley, Godwin, S Abhiram, and several employees 15 See R Krausman s Exh 37 16 Romano indicated he was making a package offer and if all was not agreed to nothing was agreed on PARK INN HOME FOR ADULTS 1097 The Union announced that the strike notice was ex tended to take effect August 7, 1978 It proposed a $25 raise spread as follows October 1, 1976-$4 March 1 1977-$4 August 1 1977-$9 and March 1 1978-$8 Respondent Park Inn did not accept the Union s wage proposal Romano indicated to the union negotiators that Park Inn might increase its wage offer beyond 4 percent if they could gain some monetary concessions from their landlord The July 31, 1978 bargaining session On July 31, 1978, the parties met at the Union s of faces Respondent Park Inn was represented by Attorney Romano and the facility s accountant, Joseph Berg The Union was represented by Kelley, Godwin, an employee committee and at one point its president, Peter Otley Park Inn offered a 5 percent wage increase, with 1 year of retroactivity and offered to pay out the moneys owned for trust fund delinquencies in 5 years The Union rejected the proposals and proposed a 10 percent across the board increase the first year a 7 1/2 percent wage increase the second year, or that the parties agree to the terms of the expired contract on all but wages and submit wages to interest arbitration Park Inn rejected the Unions proposals The parties agreed to the expired contract provisions on longevity pay, uniform allowance, sick days, and holidays The Union rejected the 40 hour week proposal At the conclusion of the meeting, Romano indicated Park Inn would have to have conces sions from the landlord or it would have to surrender its lease and discontinue operations The August 7, 1978 meeting The parties met at the Union s offices on August 7 1978 Federal Mediator Irwin Gerard attended the ses sion The Union was represented by Kelley, Godwin Sam Abhiram and several employees Romano repre sented Park Inn Romano announced at the meeting that he intended to make a final offer on behalf of Park Inn and indicated that if the Union did not accept it he would consider the bargaining at an impasse The final offer was subsequent ly typed by Ottley s secretary It was placed in the record as General Counsels Exhibit 33 The body of the letter provides Dear Mr Kelley At your request and confirmation of manage ment s proposals made during today s contract ne gotiations which was held at the union office in the presence of you Mr Godwin your negotiating committee and Mr Irwin Gerard Commissioner, Federal Mediation and Conciliation Service the fol lowing constitutes managements final offer with the understanding that the union s rejection of same would result in an impasse 1 Term The term of this contract shall be for two years November 1, 1976 and expiring October 31, 1978 2 Hours There shall be a 40 hour week and 8 hour day (exclusive meals) Management agrees to the implementation of rotating week ends with split days off If required to accommodate rotating week ends work performed on the sixth consecutive day shall be without over time In any event there shall be overtime at the rate of time and one half for work performed on the seventh consecutive day and/or in excess of 8 hours per day 3 Wages There shall be a 5% across the board increase effective upon the date of execution of a contract In other words, there shall be no retroac tivity effective with respect to wage increases 4 Cost of Living The union s proposal is rejected 5 Breaks and Meals The union s proposal is ac cepted i e there shall be two fifteen minute breaks per shift and one hour for lunch 6 Uniform Allowance The union s proposal is re jected Management will supply uniforms, but each employee is to maintain such uniform at their sole cost and expense 7 Weekends Again management agrees to imple ment rotating week ends with split days off No overtime for work performed on the 6th consecu tive day and time and one half for work performed on the 7th consecutive day 8 Meal Allowance The unions proposal is ac cepted, i e management shall pay each employee $2 per shift if one meal is not provided to each em ployee by and at the facility 9 Vacation The union s proposal is rejected and management offers to continue the existing vacation schedule as set forth in writing in Memorandum of Agreement dated August 5, 1976 and expired on October 31 1976 10 Sick Leave The union s proposal is rejected and management offers to continue the existing sick leave benefits as contained in the aforesaid August 5th agreement with the exception that there be no accrual of unused sick leave 11 Holidays The union s proposal is rejected and management offers to continue the existing holiday benefits as set forth in the aforesaid August 5th agreement with the understanding that double time for work performed on a holiday shall be at the rate of one days holiday pay plus one days straight time 12 Paid Leaves (a) Bereavement Management agrees to 7 days leave for the death of an employ ee s spouse and/or child Management rejects the union s proposal of 5 days for immediate family and instead proposes 3 days limited to the death of parent brother or sister (b) Paternity-Management rejects the union s proposal and, instead offers 3 days leave (c) Marriage-Management agrees to the union s proposal of 5 days paid leave on the con dition that it is one time during the life of this contract (d) Jury duty-Management agrees to the union s proposal that there be no loss of pay 13 Shift Differential Management rejects the union s proposal and, instead proposes that all dif ferential pay including split shift be eliminated 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 Longevity Management rejects the union s proposal and offers to continue the existing longevi ty schedule as set forth in the aforesaid August 5th agreement 15 Severance Management rejects the union s proposal 16 Sanitary Conditions Management accepts the union's proposal, a locker for each employee and the implementation of a lounge area 17 Transportation Management rejects the union s proposal 18 Funds There are two areas of negotiations in volving contributions to the various funds i e union s claim for retroactivity in the approximate amount of $114 000 i e the union's demand for pro spective increase contributions With respect to the union s claim for retroactivity and without prejudice to managements contention that there is no indebtedness to the funds for the period January 1, 1977 to the present management offers a pay out plan of $750 per month until fully paid With respect to the increase contributions to the funds, management agrees to be bound by those rates applicable to the terms of the Metropolitan New York Nursing Home Association on the condi tion that this facility receives a four month conces sion of forgiveness of contributions to all funds As I have indicated to you on several occasions during the course of negotiations there can be no agreement on any one item unless there is agree ment on all items However I reiterate that if the above proposal is unacceptable by the union, man agement will declare an impasse and conduct itself accordingly Finally, as I have stated on numerous occasions management again wishes to indicate that by rea sons of economic conditions management may sur render its lease on the premises and make applica tions to the appropriate Government Agencies to be removed from the operating licenses Very truly yours Frank A Romano The Union rejected Respondent Park Inn s final offer Implementation of last offer By mailgrams dated August 10, 1978, Federal Media tor Gerard requested that the parties maintain the status quo and meet again Attorney Romano telephoned Union Negotiator Kelley after he received Gerard s mailgram to see if the Union was prepared to offer anything new if the parties responded to the mediators request Romano testified without contradiction that Kelley told him no On August 11 1978, Romano notified both the Federal mediator and the Union that Respondent Park Inn in tended to put the terms and conditions of its last offer into effect on August 14 1978 In the letter sent to the Union, Romano enclosed a copy of a notice which Re spondent Park Inn intended to post at the facility The notice provides 17 To All Local 144 Employees From Malvina Krausman, Administrator Effective Monday, August 14 1978, the follow ing terms and conditions of employment shall be in stituted 1 Hours There shall be a 40 hour week and 8 hour day 2 Wages There shall be a 5% across the board increase effective Monday, August 14, 1978 There shall be no retroactivity with respect to this wage increase 3 Cost of Living There shall be no cost of living increase 4 Breaks and Meals There shall be two 15 minute breaks per shift and one hour for lunch 5 Uniform Allowance Management shall hereafter supply uniforms when it is deemed necessary and desirable, but each employee shall maintain their present and/or future uniforms at their sole cost and expense 6 Weekends If requested by a majority of the employees, management shall implement rotating weekends with split days off There shall be no overtime for work performed on the 6th consecu tive day, but time and one half shall be paid for work performed on the 7th consecutive day 7 Overtime Overtime at the rate of time and one half shall be paid for work performed in excess of 8 hours per day off or for work performed on the 7th consecutive day 8 Meal Allowance Management shall pay each employee $2 00 per shift if one meal is not provided to each employee by and at the facility 9 Vacation The following vacation schedule shall be continued a All employees who complete six months of substantially continuous employment shall upon the completion of such six months receive one week vacation with pay b All employees who have completed the second six months of substantially continuous em ployment shall receive an additional one week of vacation with pay per year c All employees who have completed one year, but less than five years of substantially con tinuous employment shall receive two weeks va cation with pay per year d All employees who have completed five years, but less than six years of substantially con tinuous employment shall receive three weeks va cation with pay per year e Effective January 1, 1976 all employees who have completed six years or more of substantially continuous employment shall receive four weeks vacation with pay per year " See Respodnent Krausman Exh 17 and 18 G C Exh 34 PARK INN HOME FOR ADULTS 10 Sick Leave Each employee shall be entitled to receive 15 sick days per annum , accruing at the rate of one and one quarter days per month There shall be no accrual of unused sick pay which heretofore was paid to each employee two weeks before Christmas of each year 11 Holidays Each employee shall receive a total of 12 holidays and personal days with pay, as fol lows New Years Day, Decoration Day, Labor Day, Chnstmas Day, Lincoln's Birthday, Washing ton's Birthday, Independence Day, Thanksgiving Day, Martin Luther King 's Birthday, 2 personal days, and employees birthday Work performed on any of the above holidays or personal days shall be paid at the rate of one days holiday pay plus one days straight time 12 Paid Leaves (a) Bereavement-Each employ ee shall receive 7 days paid leave for the death of such employee's spouse and/or child Each employ ee shall receive 3 days paid leave for the death of a parent, brother or sister b Paternity-Each employee shall receive 3 days paid leave c Marnage-Each employee shall receive 5 days paid leave on the condition that it is one time d Jury Duty-Employees called for Jury Duty shall be paid the difference between their regular pay and the amount they receive for Jury Duty Pay 13 Shift Differential and Split Shift Differential All differential pay of any kind and nature whatso ever shall be eliminated This shall in no way effect the present requirement that an employee perform services on a split shift basis 14 Longevity All employees who have complet ed four years of substantially continuous employ ment, but less than eight years, shall receive $100 per week per year additional on the anniversary date of their employment All employees who have completed eight years of substantially continuous employment but less than ten years shall receive $2 00 per week per year additional on the anniversa ry date of their employment All employees who have completed ten years or more of substantially continuous employment shall receive a $3 00 per week per year on the anniversary date of their em ployment 15 Severance Pay There shall be no severance pay 16 Sanitary Conditions As soon as conveniently possible, management shall provide a locker for each employee together with the use of a lounge or sitting area 17 Transportation Allowance There shall be no transportation allowance 18 Pension Welfare Dental and Educational Funds Management shall have no further obligation with respect to contributions to the funds and shall provide coverage for injury or disability as required by law 1099 Any employee who does not conform with the above terms and conditions of employment upon the effective date (Monday, August 14, 1978), shall be subject to severe disciplinary measures and, if deemed appropriate by management, discharged On August 8, 1978, Godwin met with Respondent Park Inn's employees at the facility and they voted to strike On August 14, Respondent Park Inn posted the above described notice, indicating the terms and condi tions of employment set forth therein would become of fective August 15, 1978 One of the employees who read the notice called Godwin, who indicated he would visit the facility on the next day Godwin arrived at the Park Inn at approximately 7 30 a in on August 15 18 After saying hello to several em ployees, he met with Krausman in her office for about 15 minutes Dunng that period, Krausman informed the em ployees over the loudspeaker system that they were to report to the lobby When the employees who were then on duty reported to the lobby, Godwin informed them the paper posted by Krausman was a proposal that had been turned down by the Union After the employees had been in the lobby for over half an hour, Krausman told them over the loudspeaker that if they did not return to work in 15 minutes they should leave the prem ises Godwin then went to Krausman s office where he conversed with Attorney Romano Godwin told Romano and Krausman the Union wanted Park Inn to rescind the notice, maintain the status quo and return to the bargaining table Romano indicated management had lawfully implemented its last offer and informed Godwin the employees would have to go to work or leave the building Godwin indicated the employees would not work under the posted conditions At approximately 9 a in, Park Inn management summoned the police, and the employees in the lobby, together with Godwin, were escorted out of the building After contacting his supers ors at the Union Godwin and the employees com menced picketing with signs that stated they had been locked out by Respondent Park Inn 19 3 The circumstances surrounding Osowsky s acquisition of Park Inn In early 1978, Sea Wave Realty Corp, the stock of which is wholly owned by an attorney named Murray Kalik contracted to purchase the building complex lo cated at 115-02 Ocean Promenade in New York City from Maygold Realty Co Kalik testified he had repre sented Krausman for a number of years prior to 1978, 18 Godwin employee Yvonne Bishop and Krausman each sought to describe what occurred on the morning of August 15 While I credit Bishop s testimony in its entirety Godwin and Krausman each sought to tailor their testimony to meet the needs of their case Thus I credit Bish op s claim that Godwin arrived at the Park Inn at 7 30 a in rather than 8 30 or 9 am as Godwin claims and I credit Bishops assertion that Krausman announced that there would be an employee meeting in the lobby some 15 20 minutes after Godwin arrived rather than Krausman s denial that the Union was permitted to meet with employees 18 Employee Bishop testified she continued to picket at the premises until January 1980 She credibly testified she observed Krausman enter the premises regularly during August and once or twice during Septem ber 1978 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD but did not indicate what kind of representation he had provided On August 3, 1978, the property in question was deeded to Sea Wave by Maygold subject to an out standing leasehold interest in that portion of the building complex occupied by Respondent Park Inn Krausman owned the leasehold interest During July 1978, Krausman testified she met with Kalik on two occasions in an attempt to gain rental con cessions which, would permit her to meet the Union s bargaining demands Kalik refused to grant Krausman any rental concession He testified that during the last meeting Krausman informed him she could not meet the Union s demands and would have to surrender her lease on the Park Inn premises 20 According to Kalik, when Krausman informed him she was going to surrender her lease at some point in July, he cast about for a new tenant who would be inter ested in leasing the Park Inn premises He claims that Rabbi Osowsky was recommended to him by someone other than Krausman, and that Osowsky executed a lease placed in the record as General Counsels Exhibit 7 on August 3, 1978, the same day Sea Wave acquired the property The lease provided, inter alia that the leased premises were to be used as a proprietary home for adults , that the term of the lease would be 20 years commencing August 15, 1978, that the yearly rental would be $217,000 to be paid in monthly installments that the lease was conditioned on the issuance by the New York Department of Social Services of a license for the operation of a proprietary home for adults at these premises, and that the lessee would not be personally liable for any claims other than for the rent limited solely to the period of time during which lessee retains physical possession of the premises and for any willful and malicious destruction by lessee of lessor s property At the time Osowsky executed the above described lease, he and Guttman were partners in the operation of two homes for the aged located in Belle Harbor, New York City Malvina Krausman s husband was their land lord During his testimony Osowsky claimed that he did not discuss his acquisition of the Park Inn with either of the Krausmans before or after he signed the August 3 lease While admitting he paid nothing for the Park Inn business, he denied he reached any agreement with Krausman regarding satisfaction of Respondent Park Inn s outstanding liabilities, collection of its receivables, or payment for furnishings and equipment then being used to provide care for the residents of the home 21 Interestingly, Kalik testified that he informed Kraus man that he was leasing the Park Inn portion of the building complex under discussion to Osowsky before Osowsky actually signed the lease While Krausman denied Kahk s assertion I credit Kalik 22 The record reveals that after Osowsky leased the Park Inn premises he contacted Jack Schultz, the president of Travelers Maintenance, Inc , to ascertain whether Trav elers would be interested in doing business at Park Inn Schultz testified that he thereafter visited the home and agreed to commence to furnish cooks, porters waiters, and dishwashers Osowsky instructed him to have such employees report to the Park Inn between 7 and 8 a in on August 15 1978 Subsequently, Osowsky and Travel ers executed an agreement dated August 15, 1978 which was placed in the record as General Counsels Exhibit 6 The agreement provided, inter alia, that from August 15, 1978 until August 14, 1979, Travelers would furnish por ters waiters, dishwashers, and switchboard operators to Park Inn at a cost of $3 per hour per person, with an additional 35 percent to cover overhead, taxes, work men s compensation, and profit The agreement also pro vided All the above personnel will report to, be super vised by and take instructions from you or your desig nee While the above described agreement between Travel ers and Osowsky was not actually signed until August 15, Schultz credibly testified that prior to that date he hired approximately 14 employees who were supposed start to work at Park Inn on August 15 23 He further in dicated that he arrived at the facility between 7 and 8 a in on August 15 and that only 5 of the 14 persons he had hired for the job appeared Although Schultz was asked by employees who were picketing the premises to stay out of the building, he entered and the five Travel ers employees performed 5 1/2 hours work at the facili ty that day Subsequent to August 15, 1978 the so called New Park Inn was operated much the same as it had been op erated prior to August 15 as the same residents remained there and they were cared for with the same facilities and equipment which were in the home when Krausman departed The main difference in the operation was that Travelers carried the home s personnel on its payroll on a cost plus basis while persons regularly employed in the home supervised the employees Patricia McCabe the night manager of the facility tes tified that prior to August 15 Shirley Himber managed the home and Rosalyn Press was the office manager When Osowsky took over, he assumed responsibility for ordering the food and paying the bills He dispensed with the services of Himber and made McCabe and Press comanagers of the facility and a short time there after hired one Steven Greenberg who assisted in the day to day supervision of employees who worked in the kitchen Rabbi Leoni Orlan who had been in charge of 20 Krausman claimed she did not tell Kalik she was going to surrender her lease until August 15 1978 The chronology of events in late July and early August which are discussed infra causes me to credit Kalik 21 Krausman also denied the existence of any oral or written agree ment I do not credit either witness and infer that an agreement or under standing necessarily existed as one simply does not cease to operate an ongoing without making permission for settlement of such business mat ters Such a conclusion is bolstered by Kahk s indication that Sea Wave did not purchase the equipment in the home it merely obtained fee own ership of the real property through the August 3 deed 22 Kahk s testimony was indirectly corroborated to some extent by the testimony of Patricia McCabe Respondent Park Inn s night manager prior to August 15 1978 as McCabe testified Krausman informed her on Friday August 11 1978 that she was surrendering her lease because she could not meet the Union s demand and that starting Monday (August 15) Osowsky would be her boss Krausman denied McCabe s assertion but I credit McCabe who was a disinterested witness 23 Schultz testified he finalized his deal with Osowsky over the phone on August 10 or 12 PARK INN HOME FOR ADULTS dietary for Krausman and had supervised the Kosher, re marred in charge of dietary after August 15 While Travelers president, Schultz and his assistant Gladstone Green assisted in the staffing and supervision of the home for several weeks after August 15, the above named supervisors who worked at the home full time thereafter hired the employees needed to operate the facility and provided their supervision Through the testimony of Union Business Agent Godwin and former employee Yvonne Bishop, General Counsel sought to show that Krausman remained active in the operation of the home after August 15 Their testi mony was conflicting as Bishop testified she observed Krausman at the home frequently during the last 2 weeks of August and on two occasions during September, while Godwin testified he participated in picketing until Febru ary 1979, and that he saw Krausman at the home almost every day during that period Krausman denied she per formed any work at the home after August 15 24 I credit Bishop s testimony as she was a disinterested witness but do not credit Godwin's uncorroborated claim that Krausman continued to go to the home on a daily basis for months after August 15 4 The union situation during Osowsky s tenure The record reveals that prior to the time that it agreed to furnish employees for Respondent New Park Inn, Travelers had dealt with Local 143 at other locations Schultz, Travelers president, testified that after his firm commenced performance of its contract with Osowsky, Travelers sought to end the picketing at the facility by offering employment to various unidentified persons picketing at the facility and by contacting Local 144 to ascertain what it wanted to stop the picketing Such contact led to a meeting between Travelers and Local 144 at the former s offices on August 24 At that time, Kelley and Russo from Local 144 advised Schultz and his partner Goldman that the Union would stop picketing if Travelers would sign a contract The propos als made by the Union were placed in the record as Gen eral Counsels Exhibit 9 Schultz testified Travelers re jected the proposals because they were too expensive In addition to engaging in the limited dealings with the striking employees and Local 144 as described above Schultz testified that on August 22 Local 143 sent him the 10 authorization cards placed in the record as Gener al Counsels Exhibits 10A through J and demanded rec ognition as the bargaining representative of the employ ees working at New Park Inn Schultz indicated that without making any attempt to verify the authenticity of the cards presented Travelers signed a contract with Local 143 on August 24 1978 25 Travelers' payroll records for the week ending August 25, 1978 were placed in the record as General Counsel s Exhibit 7(b) They reveal that there were then 22 em ployees working in the facility Zemeha Hogeson one of the employees then employed, credibly testified that 24 Both Osowsky and Beinhorn operated by using Krausman s operat ing certificates and Krausman was shown to have signed required state reports as the operator in May 1980 See G C Exh 49 "'See G C Exh 11 1101 Schultz assistant Gladstone Green, handed her and other employees Local 143 authorization cards on August 19 1978, and informed them they had to sign them to work there 26 As observed by counsel for the General Counsel one of the persons who signed a card presented by Local 143 to Travelers-Cruz Nolasco- was not employed by Travelers at the New Park Inn fa cility during the payroll period ending August 25, 1978 Consequently, it is clear, and I find, that on August 24, 1978, Local 143 represented, at best, only 9 of the 22 em ployees then working at Respondent New Park Inn 5 The circumstances surrounding Beinhorn s acquisition of the home On May 21 or 22, 1979, Osowsky received notification from the New York State Department of Social Services that his application for an operating certificate at New Park Inn was denied 27 Osowsky testified that immedi ately after he received the above described correspond ence he notified Attorney Kalik he was surrendering his lease on the facility and disassociating himself from the operation During the time that Osowsky operated Respondent New Park Inn Marvin Beinhorn was employed at Bou levard Hospital He testified that in the spring of 1979 he became interested in operating a home for the aged and various people steered him to Attorney Kalik whom he eventually contacted to express his interest in ventur ing into a facility Bemhorn indicated Kalik thereafter contacted him in May 1979, to inform him a facility may soon become available depending on a license problem Subsequently, on May 22 1979, Kalik contacted Bein horn to inform him Osowsky was surrendering his lease on the New Park Inn property and they met to discuss the situation According to Beinhorn, when he met with Kalik, the latter told him that when he took over the New Park Inn the accounts receivable due at the time would be forwarded to Osowsky and Beinhorn would not be responsible for the moneys owned by Osowsky- that Kalik would take care of it With respect to the equipment Beinhorn indicated Kalik informed him he would have no interest in the equipment then at the fa cility but any new equipment purchased would belong to him Beinhorn testified he paid nothing for the buss ness and had no discussions with Osowsky before he as sumed control of the operation He claims Kalik assured him he could operate under Krausman s license Bein horn s agreement with Kalik was formalized when he ex ecuted a letter agreement dated May 22 1979 which was sent to him for acceptance, in lieu of executing a lease 28 26 Hogeson s pretrial affidavit makes reference to her becoming a member of Local 143 30 days after she was employed at New Park Inn The affidavit ws taken on August 31 1978 and it is clearly inaccurate The witness was quite straightforward and I credit her testimony given at the trial 29 See G C Exh 40 which indicates Osowsky was denied an operat mg certificate because he had operated New Park Inn Home for Adults without the Departments written approval and/or a valid operating cer tificate 28 See G C Exh 2 The letter indicates inter alia that the terms of the Osowsky lease would be binding on Beinhorn and that he was to send a Continued 1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD When Travelers learned that Osowsky was no longer connected with the Park Inn facility it notified its em ployees working in the facility by memorandum dated June 8, 1979, that effective June 15, 1979, it would no longer be responsible for their payroll It is undisputed that Beinhorn retained the employees working in the fa cility when he assumed control of the operation and merely put them on his payroll At the time of the trans fer of operations, which Beinhorn places as occurring on June 1, 1979 Steven Greenberg was the then administra tor at the home He remained employed in that capacity While Beinhorn hired several new supervisory employ ees during the 2 year period that he was to operate the facility, the nature of the operation and the equipment used to care for the aged residents did not change mate rially dunng his tenure at the home 29 6 The circumstances surrounding Konig s acquisition of the home Bemhorn testified he notified Kalik in late 1980 that he wanted out of the Park Inn operation At the time, he claims he suggested to Kalik that Samuel Konig, who had been employed at the home as the office manager since August 1979, might be interested in taking over the facility About the same time, Konig applied for an oper ating certificate He received such a certificate on May 11, 1981, and assumed control of the facility on June 1, 1981 30 Konig indicated dunng his testimony that he made no immediate changes in the employee complement when he took over, and the record reveals there was no hiatus in the operation of the home at that time 31 As of June 1 1981 Ann Millard was the administrator of the facili ty She had replaced Steven Greenberg during Bein horn s tenure and she was retained by Konig Konig, like Osowsky and Beinhorn paid nothing for the business when he acquired it He and Beinhorn entered an oral agreement whereby Konig was to apply outstanding re ceivables to Beinhorn s accounts payable and subsequent ly pay Beinhorn accrued profits 32 B The Issues The issues framed by the pleadings are 1 Did Respondent Park Inn violate Section 8(a)(5) of the Act by a Failing to bargain with the Union in good faith from February 28, 1978, until August 7 1978 b Unlawfully implementing its last offer on August 15 1978 c Failing since March 11 1978 to make contributions to the Union s trust funds copy of such lease together with the letter of acceptance to the New York Department of Socical Services 29 The most siginificant change instituted by Beinhorn was use of some different vendors 30 Koing signed a new lease with Sea Wave at the time 31 Konig testified no announcement of this change of ownership was made to employees 32 Beinhorn testified he took $2000 out of the business while operating it and that Konig subsequently paid him $7000 epresenting his profit after Konig collected receivables and satisfied his accounts payable 2 Did Respondent Park Inn violate Section 8(a)(3) of the Act by locking out and/or constructively discharg ing employees on August 15, 1978? 3 Whether Respondent New Park Inn is the alter ego or successor to Respondent Park Inn 4 Whether Respondent New Park Inn violated Sec tion 8(a)(1) and (3) of the Act by continuing to lock out and failing to reinstate the employees who left the facth ty and commenced to picket on August 15 1978 5 Whether Respondent New Park Inn violated Sec tion 8(a)(1) and (5) of the Act by failing since August 15 1978, to make contributions to the Union s trust funds 6 Whether Respondent New Park Inn violated Sec tion 8(a)(1) and (2) of the Act by soliciting employees to sign authorization cards for Local 143 and by thereafter signing a contract with Local 143 at a time when it did not represent an uncoerced majority of the employees in an appropriate bargaining unit 7 Whether Respondent Beinhorn is the successor to Respondent Park Inn and New Park Inn? 8 Whether Respondent Beinhorn has violated Section 8(a)(1) and (3) by continuing to lock out and/or failing to reinstate the employees who left the facility on August 15, 1978 and have engaged in picketing at the fa cility since that time 9 Whether Respondent Beinhorn violated Section 8(a)(5) of the Act by failing to make contributions to the Unions trust funds during the period June 1, 1979 to June 1 1981 10 Whether Respondent Konig is the successor to Re spondent Betnhorn and is thus responsible for remedying unfair labor practices committed by Respondents Park Inn New Park Inn, and Beinhorn C Analysis and Conclusions 1 The bargaining allegation Section 8(a)(5) of the Act establishes a duty to enter into discussion with an open and fair mind and a sincere purpose to find a basis of agreement NLRB v Herman Sausage Co, 275 F 2d 229 231 (5th Cir 1960) As the Supreme Court stated in NLRB v Insurance Agents 361 U S 477 485 (1960) Collective bargaining then is not simply an occa sion for purely formal meetings between manage ment and labor while each maintains an attitude of take it or leave it it presupposes a desire to reach ultimate agreement to enter into a collective bar gaining contract This obligation does not compel either party to agree to a proposal or make a concession NLRB v American Na tional Insurance Co 343 U S 395 (1952) specifically it does not compel agreement on particular contractual terms, no matter how strongly desired by a union NLRB v H K Porter, 397 U S 99 (1970) However the Board may and does examine the contents of the pro posals put forth for if the Board is not to be blinded by empty talk and by the mere surface motions of collec tive bargaining, it must take some cognizance of the rea sonableness of the position taken by an employer in PARK INN HOME FOR ADULTS 1103 course of bargaining negotiations' NLRB v Reed & Prince Mfg Co, 205 F 2d 131, 134 (1st Cir 1953), cert denied 346 U S 887 (1953) The standard for assessing whether a particular course of bargaining meets the test of good faith was stated as follows in M System Inc, 129 NLRB 527 547 (1960) Good faith or the want of it is concerned essen tially with a state of mind There is no shortcut to a determination of whether an employer has bar gained with the requisite good faith the statute com mands That determination must be based upon rea sonable inference drawn from the totality of con duct evidencing the state of mind with which the employer entered into and participated in the bar gaining process The employers state of mind is to be gleaned not only from his conduct at the bar gaining table, but also from his conduct away from it-for example, conduct reflecting a rejection of the principle of collective bargaining or an underly ing purpose to bypass or undermine the Union manifests the absence of a genuine desire to com pose differences and to reach agreement in the manner the Act commands All aspects of the Re spondent s bargaining and related conduct must be considered in unity not as separate fragments each to be assessed in isolation In her brief, counsel for the General Counsel contends that Respondent Park Inn engaged in surface bargaining with the Union during the period extending from Febru ary 28 to August 7, 1978 In addition she argues that it violated the Act by implementing its last offer in an un lawful manner I agree to the extent indicated below My review of the actions of the parties during the period extending from February 28 through July 31 causes me to conclude that Respondent Park Inn ap peared to be earnestly attempting to reach agreement with the Union up to that point As indicated, supra the union negotiators had indicated early in the 1978 negotia tions that their major concerns were wages and payment of the trust fund delinquencies In its first proposal Re spondent Park Inn offered a 4 percent wage increase with retroactivity open and it offered to pay the fund delinquencies at $750 per month until the debt was satis feed (7 1/2 year payout) Thereafter on July 31 Re spondent Park Inn made its offers more palatable by of fenng a 5 percent wage increase with 1 year of retroac tivity and it bettered its fund offer by proposing to pay the delinquency in 5 years Significantly, at or about the time the Union rejected Respondent Park Inn s July 31 proposals, Krausman who had been told by Attorney Kalik that he would grant her no rental concessions, told Kalik she would have to surrender her lease because she could not reach agreement with the Union By some un explained means Kalik then located Rabbi Osowsky and immediately leased him the Park Inn premises for a 20 year term commencing August 15, 1978 Osowsky then contacted Travelers and arranged to have the work, then being performed at the home, performed by Travelers from August 15 forward It was in that setting that Re spondent Park Inn appeared at negotiations on August 7 and reduced its wage offer by offering 5 percent with no retroactivity, such raise to take effect on the signing of a contract Similarly, it then reverted to its proposal to pay the fund delinquencies at $750 per month until the obli gation was satisfied In other respects, as set forth supra, it continued to propose terms less advantageous than that in the expired contract, or the same terms found in that contract In my view Respondent Park Inn s actions in late July and early August reveal it was not attempting, as of August 7, to reach agreement with the Union As mdi cated, supra, Respondent Park Inn made its best offer to the Union on July 31 About the same time, I am con vinced, for reasons set forth more fully, infra, that Krausman had decided she was not going to be able to get the Union to agree to a contract she could live with and she Attorney Kalik and Rabbi Osowsky decided that if Respondent Park Inn could not get the Union to agree to terms that would permit the facility to operate at a profit they would, through a sham paper transaction engineered by Kalik, get rid of the Union and if neces sary, operate the home by using Travelers employees To implement their plan, Kalik caused Osowsky to exe cute a lease on August 3 Significantly, that lease trans ferred the entire Park Inn operation (realty and personal property) to Osowsky effective August 15 As indicated, supra, Osowsky immediately obtained Travelers com mitment to staff the home on the latter date with em ployees that would cost (Osowsky) $3 per hour plus an additional 35 percent to cover employee related expenses and profit Thereafter attorney Ramono appeared at ne gotiations on August 7 and advanced proposals that, except for an offer to pay certain trust fund moneys for 1977 and 1978 were less palatable than the proposals made on July 31 Predictably the Union rejected the proposals At that point, Respondent Park Inn could do nothing but let the Union strike as it had indicated it would, or it could claim an impasse existed and unilater ally implement its last offer The record reveals it chose to implement its last offer with one very important ex ception At the August 7 session it had offered to pay the percentages then set forth in the master nursing home agreement for the various trust funds with a 4 month period of forgiveness However when implement ing its last offer on August 14 to be effective on August 15 it advised its employees inter alia Management shall have no further obligation with respect to contributions to the funds and shall pro vide coverage for injury or disability as required by law Patently Respondent Park Inn s actions with respect to its employees coverage under the Union s welfare pension, dental, and educational plans was not consistent with the last offer it had made to the Union Consequent ly notwithstanding the existence or lack of existence of a bargaining impasse, Respondent Park Inn violated Sec tion 8(a)(5) by announcing its employees would no longer be covered by such plans In my view as indicat ed infra, this action, coupled with the other unilateral changes instituted by Respondent Park Inn on August 15 amounted to an indication that Respondent Park Inn 1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD expected its employees to work under what was tanta mount to nonunion conditions from August 15 forward Was it mere coincidence that Respondent Park Inn im plemented the changes on August 15, the date Osowsky, utilizing Travelers employees, was scheduled to take over the operation? I think not I am compelled to con elude that Respondent Park Inn decided shortly before the business was leased to Osowsky that effective August 15 the facility was one way or another, to be operated under nonunion conditions For the reasons stated, I find that by preparing to accomplish such aim by offering less on August 7 than it had offered on July 31 Respondent Park Inn failed to bargain with the Union in good faith from August 7 forward By engaging in such conduct and by unilaterally implementing changes that were in consistent with its prior offers to the Union, I find that Respondent Park Inn violated Section 8(a)(5) of the Act as alleged 2 The trust fund issue The complaint alleges that Respondent Park Inn vio lated Section 8(a)(5) from March 11, 1978, forward by failing to make contributions to the Local 144 Employee Benefit Funds As found supra Respondent Park Inn first became de linquent in its contributions to the trust funds named in the contract between the parties in 1972, and it has not made any contributions since December 11, 1974 By letter dated December 20, 1976, it notified the Union that it considered its most recent contract to be terminat ed as of the expiration date Since that time, it has claimed it has no obligation to make payments to the funds The General Counsel contends that the date on which Respondent Park Inn first unilaterally altered its employ ees' renumeration by failing to remit moneys to the funds is immaterial as the violation is a continuing one and the Respondent Park Inn s failure to remit moneys to the funds each month constitutes separate and distinct viola tion of the Act Respondent has pleaded and contends that Section 10(b) of the Act precludes a finding of vio lation as the Union has been aware that contributions were last made on December 11 1974 Section 10(b) of the Act states in relevant part that Whenever it is charged that any person has en gaged in or is engaging in any unfair labor practice the Board shall have power to issue a complaint stating the charges and con taining a notice of hearing before the Board Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board [Emphasis added ] In Farmington Iron Works 249 NLRB 98 (1980) the Board was confronted with a situation in which the em ployer violated a collective bargaining agreement well outside the Section 10(b) period by making no contribu tions to contractual fringe benefits funds and the union was well aware of such as a result of monthly reports from the funds trustees While concluding that Section 10(b) precluded any remedy for the failure to make pay ments outside the 6 month period preceding the charge the Board further concluded that an unfair labor practice finding was not time barred in its entirety, stating at 99 The Board previously has considered the applica tion of Section 10(b) to the unilateral discontinu ance, in the face of a bargaining obligation, of bene fits which formerly were granted on a periodic basis Thus the Board has held that each denial of a merit increase to employees whose evaluations pre viously would have entitled them to such an in crease constituted a separate and distinct violation of the Act which could be remedied upon the filing of a charge within 6 months after the denial of that particular increase The Board further has held that the unilateral decision to discontinue making benefit fund contributions like the failure to make periodic wage increases, constitutes a violation of Section 8(a)(5) of the Act Accordingly we conclude that each failure to make the contractually required monthly benefit fund payments constituted a sepa rate and distinct violation of Respondents bargain ing obligation and therefore, that any benefit fund payment [within the Section 10(b) period] is subject to the Board s remedial powers [Emphasis added ] Noting that almost 4 years had elapsed since Respond ent Park Inn had ceased contributing to the funds and almost 2 years had elapsed since expiration of the con tract, Respondent Park Inn contends in its brief that by its acquiescence with knowledge over a period of several years, the Union has waived any right to bargain over the Employers unilateral cessation of fund contributions [Br 98] In support of its waiver argument, it cites Stone Boat Yard, 264 NLRB 981 (1982) Sir James Inc 183 NLRB 256 259 (1990) enfd 446 F 2d 570 (9th Cir 1971) and A V Corp 209 NLRB 451-455 (1974) I find Respondent Park Inn s contention that the Union was placed on notice of the homes intention to cease making fund contributions and its failure to demand bargaining constitutes a waiver of its right to re ceive such contributions to be without merit Stone Boat Yard supra Sir James Inc supra and A V Corp supra, all enunciate the proposition that on contract expiration an employer must continue to apply contract terms that govern employer employee relations unless the employer gives timely notice of an intention to modify a condition of employment and the union fails to timely request bar gaining In Stone Boat Yard, supra, the notice given by the employer indicated its desire to make substantial changes in the contract and the Board found such noti fication was deficient as the union was not given a writ ten or detailed proposal of the intended changes in the contract Here the only notice given by Respondent Park Inn of its intention to modify its obligation to make contributions to the Union s trust funds was its Decem her 20, 1976 letter, which merely indicated it was termi nating the 1976 contract effective October 31 1976 Pa tently Respondent Park Inn did not by merely inform ing the Union it was terminating a contract that had al ready expired, place the Union on notice of an intention PARK INN HOME FOR ADULTS to modify its obligation to make contributions to the trust funds In sum, I find that the record fails to reveal that the Union acquiesced in Respondent Park Inn s unilateral modification of its obligation to make contributions to the Union s trust funds, and I further find that it violated Section 8(a)(1), (3), and (5) of the Act as alleged by fail ing since March 11, 1978, to make the contributions re quired by the expired 1976 contract 3 The lockout and/or constructive discharge issue The General Counsel contends that as the police es corted bargaining unit employees out of the Park Inn on August 15 they were locked out In the alternative she claims they were constructively discharged As noted supia I have credited employee Bishop s ac count of events at the facility on the morning of August 15 According to her the employees remained in the lobby of the facility for an extended period of time and they refused to return to work or leave the facility within a reasonable time after Krausman advised them to make a choice In the circumstances, I find that by re questing that the police escort the employees from the building after they refused to perform their regular duties or leave voluntarily, Respondent Park Inn did not lock its employees out on August 15 In the Crystal Princeton Refining Co, 222 NLRB 1068, 1069 (1976), a constructive discharge case, the Board stated There are two elements which must be proven to establish a constructive discharge First, the bur dens imposed upon the employees must cause, and be intended to cause a change in his working con ditions so difficult or unpleasant as to force him to resign Second it must be shown that those burdens were imposed because of the employees union ac tivities With respect to the second element-union activities of the employees-the Board stated in Superior Sprinkler, 227 NLRB 204, 210 (1976) [The employer] unlawfully refused to bargain with the Union and thus offered its employees the choice of accepting the employers unlawful repudi ation of its statutory bargaining obligations and working under unlawfully imposed conditions of employment or quitting their employment Thus the employees continued employment would be conditioned upon their abandonment of rights guar anteed them under the Act, that is, the right to bar gain collectively through representatives of their own choosing Forcing employees to make such a choice, namely, to work under illegally imposed conditions or to quit their employment discourages union membership almost as effectively as actual discharge Accordingly, I find that the Com pany constructively discharged and thereby violated Section 8(a)(1) and (3) of the Act As found supra Respondent Park Inn notified its em ployees on August 14 that effective August 15 inter alia 1105 (1) They would work 40 hours per week and 8 hours per day instead of 35 hours per week and 7 hours per day (2) they would receive a 5 percent increase in their weekly salary,33 (3) they would not be paid for accrued sick time in the future (4) they would no longer receive a differential (10 percent) for shift differential and (5) they would no longer be covered by the Union s welfare fund educational and dental funds, or pension fund 34 In sum by altering the wages, hours and working conditions of its employees on August 15, Respondent Park Inn increased their workday and workweek cut their hourly pay and, in effect, reduced their pay by an additional amount exceeding 14 percent by depriving them of participation in the Union s welfare, educational, dental and pension funds In my view such actions re quired, in effect that Park Inn s employees work under what was tantamount to nonunion conditions and they imposed such an unpleasant burden upon employees that they were justified in resigning their employment As the changes were unlawfully implemented, I find, as alleged, that by offering its employees the choice of working under the conditions posted on August 14, or subjecting themselves to severe disciplinary measures including discharge, Respondent Park Inn constructively dis charged its bargaining unit employees on August 15, 1978, in violation of Section 8(a)(1) and (3) as alleged Assuming arguendo, Respondent Park Inn s employ ees were not constructively discharged on August 15, I would find that they became unfair labor practice strik ers on that date as it is clear they refused to work be cause of the unlawful unilateral changes in their wages, hours and working conditions which were implemented on that date The Respondents claim that no such finding should be made because the Union caused the employees to strike without first giving the 10 day notice of inten tion to strike required by Section 8(g) of the Act thus enabling Respondent Park Inn to terminate them for en gaging in unprotected activity I find the defense to be without ment In the first place, the record fails to reveal that Respondent Park Inn ever notified any of its em ployees that it was terminating them because they had engaged in unprotected activity Moreover as contended by counsel for the General Counsel, the Board indicated in Hospital (CHC Corp) 229 NLRB 1010 fn 3 (1977), that [T]he public interest demands that employees of health care institutions be accorded the same type of treatment under the law as other employees in our society and that the 8(g) notice requirement not be utilized to deprive employees of their statu 83 The vast majority of the bargaining unit employees were paid $150 per week or approximately $4 28 per hour before August 15 Working a 40-hour week with a 5 percent increase in their weekly salary they would under the change have earned approximately $4 per hour 34 Such contributions aggregated 14 percent of Respondent Park Inn s gross payroll under the expired contract On August 7 1978 Respondent Park Inn agreed to pay the funds the percentages of gross set forth in the Metropolitan New York Nursing Home Association contract with the Union While the record fails to identify the amount of those percentages it reflects that they were higher than those set forth in the expired con tract 1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tory rights It is clear, therefore that a labor orgam zation will not be required to serve a 10 day notice or to wait until the expiration of the 10 day notice when the employer has committed unfair labor practices as in Mastro Plastics Corp v NLRB, 350 US 270 (1956) Here, the Union notified Krausman, Federal Mediation and the New York State Mediation Board on July 11 and 25 that it intended to strike at Park Inn Home for Adults on July 26 and August 7, respectively Thereaf ter, the record reveals that the Union postponed its con templated strike to participate in further negotiations Rather than participate in such negotiations by bargain ing with the Union in good faith, Respondent engaged in bad faith bargaining and it then effectuated the unlawful unilateral changes previously discussed In the circum stances described, I find that the Union, having placed Respondent Park Inn on notice of its intention to strike on two occasions if agreement on the terms of a new collective bargaining agreement was not reached, com plied with the spirit, if not the letter, of Section 8(g) Moreover as it is clear that Respondent Park Inn s com mission of serious unfair labor practices caused the work stoppage under discussion, I find the Union was not re quired to issue a third strike notice and wait an addition al 10 days before it was legally entitled to strike 4 The status of Respondents New Park Inn, Beinhorn, and Konig The General Counsel contends that Respondent New Park Inn (Osowsky) is the alter ego of Respondent Park Inn, and that Respondents Beinhorn and Konig are sue cessor employers within the meaning of Perma Vinyl Corp, 164 NLRB 968 (1967) enfd sub nom United States Pipe & Foundry Co v NLRB 398 F 2d 544 (5th Cir 1968) and Golden State Bottling Co v NLRB 414 U S 168 (1973) The legal principles to be applied in determining whether two factually separate employees are in fact alter egos are well settled Although each case must turn on its own facts the Board has generally found alter ego status where the two enterprises have substantially iden tical management, business purpose operation equip ment, customers, and supervision as well as ownership 35 Here it cannot be seriously disputed that the so called enterprises in question have had substantially identical business purpose equipment and customers as the facile ty has been operated as a home for the aged without hiatus, the elderly residents in the facility when Osowsky Beinhorn and Konig became the operators re mained there, and it is clear that, with exception of the addition of a few items, the furniture and equipment in the home when Malvina Krausman was the operator is still there Management, supervision operation, and own ership of the home is claimed to have been different under the various operators and those subjects are ad dressed below 36 Denzil S Alkire 259 NLRB 1323 1324 (1982) Crawford Door Sales Co 226 NLRB 1144 (1976) Ownership While Respondent New Park Inn (Osowsky) Bein horn, and Konig admit they acquired control of the fa cnty without investing any moneys in the business, they claim they became the owners of the business as a result of arms length transactions with Attorney Kahk, and that they have had no business dealings of any nature with Krausman-the owner of all the equipment, furni ture, and supplies in the facility For the reasons stated, infra, I do not accept their claim As indicated supra, Attorney Kahk purchased the real property that houses the Park Inn on August 3 At that time, Malvina Krausman owned the 181 beds in the facil ity and the remaining items of personal property, includ mg, inter aha, the furniture, the kitchen equipment, and the supplies that were on hand Despite the fact that the realty and the personalty were owned as indicated, on August 3 Kalik, after meeting with Krausman, leased the premises as well as the items of personalty owned by Krausman to Osowsky When Osowsky vacated the premises in late May or early June 1979, Kalik repeated the process with Beinhorn, and about 2 years later again repeated the process with Konig Krausman a most re luctant and evasive witness, claims she was unaware of the fact that Attorney Kalik engaged in the described transactions I find her testimony to be incredible She impressed me as being an intelligent person, and I simply do not believe she would permit strangers to take control of her business, her furniture, her equipment, and her supplies without consenting to the arrangement and ob taming appropriate payment or recompense During the trial the General Counsel repeatedly sought to cause Krausman and Rabbi Osowsky in par ticular to respond to subpoenas which requested the fi nancial records maintained at the facility Even though Krausman was ordered after subpoena enforcement pro ceedings to produce the financial records she refused claiming the facility had been robbed shortly after August 15, 1978, and certain unidentified records had been stolen This testimony was not corroborated in any respect and I do not credit it In addition, while admit tang she may have some records at her personal rest dence at times during the trial Krausman failed despite the General Counsels repeated requests that she produce what she had to come forth with any records Similarly, the General Counsel sought to cause Rabbi Osowsky to produce subpoenaed financial records kept in the ordi nary course of business at the home He produced noth ing except the lease between him and Kalik claiming all other records were at the facility then being operated by Beinhorn, and stating the records were not in his custody and control While Beinhorn and Konig willingly pro duced payroll records and furnished certain information concerning purchases from vendors and like matters nei ther produced the general ledgers maintained at the facil ity In sum the record in this case reveals that Krausman has owned the furniture and equipment utilized in the fa cility during the entire course of this proceeding As Kalik leased such personalty to Osowsky Beinhorn and Konig to enable them to operate the facility, I infer that PARK INN HOME FOR ADULTS Krausman was consulted before Kalik engaged in such actions, and I infer that she consented to each arrange ment Since Krausman and Osowsky refused to produce the financial records, which would have revealed the extent of Krausman s financial participation in the oper ation of the facility during Osowsky s tenure, an adverse inference that she participated financially in the oper ation of the facility is warranted In short, I find, for the reasons set forth, that Respondent Park Inn (Krausman), in effect, fully capitalized the operations of Respondent New Park Inn (Osowsky), Beinhorn, and Konig by per mitting them to use her furniture, equipment and other items of personal property in the facility during their re spective tenures at the facility Management It is true, as maintained by the Respondents, that there is no direct evidence in the record that would show that Malvina Krausman was extensively involved in the active management of the facility after August 15, 1978 I feel it is fitting, however, to scrutinize the events sur rounding her departure from the facility on the date mentioned and the events which occurred later if an ac curate conclusion with respect to management of the fa cility from August 15 forward is to be reached As indicated, supra, Attorney Kalik had represented Krausman for a number of years before her July-August bargaining difficulties were encountered She claims that in late July she approached Kalik seeking rental conces sions and when he told her he could give her none that ended the matter and she simply informed him she would have to surrender her lease on the premises if she was unable to reach agreement with the Union What happened next? On the Kalik end, the next thing that happened was that Kalik, through unexplained means, happened to locate Rabbi Osowsky who was then en gaged in the operation of two homes for the aged owned by Krausman s husband, and Osowsky agreed to lease the premises housing the facility if Krausman surren dered her lease As indicated supra although Attorney Kalik admitted he discussed the Osowsky lease arrange ment with Krausman before Osowsky signed the lease and Krausman's night supervisor, McCabe credibly testa feed that Krausman told her on August 11 that Osowsky would be her new boss as of August 15, Krausman false ly testified she was unaware of the fact that Osowsky was going to become the new operator of the facility until he appeared at the facility on August 15 Why did she disavow knowledge of the Osowsky Kalik lease ar rangement? In my view, the answer is provided in part, by the actions of both Respondent Park Inn and Osowsky during the first 2 weeks of August During that period, as indicated supra Respondent Park Inn bar gained in bad faith with the Union and unlawfully imple mented a so called last offer in such a manner as to con structively discharge its bargaining unit employees During the same period, Osowsky arranged to have the employees of an independent contractor report to the fa cility on August 15 to perform the work of bargaining unit employees In my view it was no coincidence that both Osowsky and Krausman implemented their plans in such a way as to bring their actions to a conclusion on 1107 August 15 I conclude that both individuals were acting in accordance with a scheme designed to rid the facility of the Union and its union employees so they could be replaced by the cheaper labor offered by Respondent Travelers In addition to the fact that Krausman appears to have participated in the management of Respondent New Park Inn by causing Osowsky to commence operation of the facility with the employees of an independent contractor, the record reveals that she participated in the manage ment of the supposedly new entity in several other ways Thus, Attorney Kalik and Osowsky both admitted during their testimony that Osowsky operated the facility by utilizing Krausman s operating certificate Interesting ly, Krausman and Beinhorn repeatedly refused to produce the operating certificates under which the facili ty was operated from August 15, 1978, forward An in ference that they were not produced because production would work to the Respondents detriment is warranted I infer that they were not produced because Krausman held herself out to be the licensed operator of the facility from August 15, 1978, until Konig obtained an operating certificate in the spring of 1981 36 Finally, although Krausman and Osowsky refused to produce records kept by the home during Osowsky s tenure, the General Counsel was able to obtain a copy of the 1978 financial report for the facility, which was filed with the New York Department of Social Services The report was filed by Krausman in her capacity as the operator of the facility As Krausman and Osowsky refused to produce the annual financial reports filed by the facility during the time Osowsky and Beinhorn were designated to be the owners and/or operators of the facility I infer they refused to produce them because Krausman prepared and submitted them as the licensed operator of the facility In sum, I find that while Osowsky provided top man agement of the facility on a day to day basis, and Bein horn and Konig performed essentially the same function during their tenures Krausman by assisting in the initial labor policy to be followed by the entities which alleged ly succeeded Respondent Park Inn by permitting the fa cility to operate under her operator's certificates, and by preparing and submitting the required annual financial reports to the New York Department of Social Services participated significantly in the management of the facili ty while Osowsky and Beinhorn were associated with the home Operation The Respondents claim that the operation of the old and the new entities was different because the new enti ties did not utilize any of the employees formerly used by Respondent Park Inn Having found that Respondent Park Inn unlawfully discharged its bargaining unit em ployees to permit Osowsky to operate the facility with cheaper labor, I attach little significance to the fact that under Osowsky the facility was initially operated by uti se In this connection I note that Kalik assured Beinhorn when he became the operator of the facility that he could use Krausman s operat mg certificate 1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lizing employees other than those used by Respondent Park Inn Moreover, I note that the record reveals that both the old and the new entities utilized the same classi fication of employees, i e , aides, maids, operators, por ters, dishwashers, waitresses, and cooks Patently, as employees in the same job classifications were utilized by both the old and the new entities in volved in this proceeding, the operations were substan tially identical Supervision As noted, supra, when Osowsky became the operator of the facility on August 15, he retained former Re spondent Park Inn Supervisors McCabe and Press, and, with exception of the first 2 weeks of Osowsky s tenure at the facility, the named individuals accomplished the day to day supervision of employees Similarly, when Beinhorn subsequently replaced Osowsky, he retained the supervisors then employed by Osowsky and when Konig replaced Beinhorn the supervisors then in the home remained in the same capacity It is clear, and I find, that the supervision of the old and the new entities was substantially identical In sum I conclude that by engaging in a number of sham paper transactions , which were accomplished by Attorney Kalik, Malvina Krausman d/b/a Respondent Park Inn has since August 1978 placed what are actually a series of managers in her facility, which she has owned at all times In my view, the entities operated by Osowsky, Beinhorn and Konig as well are nothing more than the disguised continuance of Park Inn Home for Adults As a result I will recommend that each of the named Respondents be held jointly and severally liable for remedying the unfair labor practices of Respondent Park Inn 5 The alleged 8(a)(2) conduct As noted supra the General Counsel and Respondent Travelers executed a formal settlement stipulation ap proved by me at the commencment of the trial of this matter I approved the stipulation as I concluded it pro vided adequate remedy for the unfair labor practices Re spondent Travelers allegedly committed Having charged both Respondent Travelers and Respondent New Park Inn engaged with conduct that violates Section 8(a)(1) and (2) of the Act the General Counsel seeks a finding that Respondent New Park Inn violated the Act by exe cuting a contract with Local 143 at a time when it did not represent an uncoerced majority of the employees employed in an appropriate bargaining unit at the facili ty The facts offered by the General Counsel to prove the alleged Section 8(a)(2) violation are fully set forth, supra They reveal that at a time when 22 nonsupervisory em ployees were employed by the facility Schultz of Re spondent Travelers executed a contract with Local 143 which had proffered only 10 authorization cards Such undisputed facts further reveal that Schultz assistant so licited the employees signatures on the cards by inform ing them that they had to sign to work there and that one employee for whom a card was submitted by Local 38 See G C Exh 6 143 was not on the facility's payroll at the time the con tract was executed Patently, the facts summarized above reveal that Re spondent Travelers violated Section 8(a)(2) by soliciting its employees to sign authorization cards and by entering a contract with Local 143 at a time when it did not rep resent an uncoerced majority of the employees in an ap propriate bargaining unit Respondent New Park Inn claims it cannot be found to have violated Section 8(a)(2) as alleged as Respondent Travelers, rather than Re spondent New Park Inn was the Employer of the em ployees involved The General Counsel contends that Respondent New Park Inn and Respondent Travelers were joint employers, and a finding that Respondent New Park Inn violated Section 8(a)(2) is warranted In agreement with the General Counsel, I conclude that Respondents Travelers and New Park Inn were clearly joint employers during Osowsky s tenure at the facility It is undisputed that from approximately Septem ber 1, 1978, forward, the employees were carried on Travelers payroll, but the hiring firing and day to day supervision of such employees was accomplished by Osowsky and his staff 37 Having determined that the en titres under discussion were joint employers I turn to an examination of those record facts which, in my opinion reveal that while Osowsky took no active part in deal ings with Local 144 and 143, he and/or Respondent New Park Inn should be held liable for the action taken by Schultz and Travelers The record reveals that prior to the time that Travel ers committed itself to supply employees to Osowsky for the purpose of staffing the Park Inn Osowsky had used Travelers services elsewhere It further reveals that Travelers had recognized Local 143 as the bargaining agent of its employees working at other locations With respect to the Park Inn situation, Schultz testified he had the authority to conduct dealings with the Unions insofar as those employees were concerned-that he was being paid by Osowsky to handle matters of that nature While Osowsky neither admitted nor denied that such was the case when he appeared as a witness, it is apparent that the two named individuals discussed unionization at the facility when they were reaching agreement on the terms of their relationship as their agreement states (in relevant part) 38 As agreed the above does not include any fringe benefits It is further agreed that should it be neces sary to pay fringe benefits such as pension, health and welfare sick leave holidays or any other bene fits, the costs of such benefits will be added to the cost of $3 00 per hour, plus the 25% and 10% listed above Significantly, in his dealings with Local 144 and Local 143 it is apparent that Schultz actions were consistent with the limitation placed on him by the above quoted language contained in his agreement with Osowsky He rejected entering into a contract with Local 144 because 37 See Hamburg Industries 193 NLRB 67 (1971) PARK INN HOME FOR ADULTS 1109 they wanted too much, but he signed with Local 143 as he could do so and abide by his agreement with Osowsky Finally, inspection of the collective bargaining agreement executed by Travelers and Local 143 on August 24 1978, reveals that it contained a union securi ty clause, a checkoff clause, a probationary period clause, a holiday clause, a vacation clause, and conferred other benefits on the employees which could be exer cised only if Respondent New Park Inn accepted the contract and abided by its provisions 39 I assume, in the absence of evidence to the contrary, that Respondent New Park Inn participated fully in the administration of the collective bargaining agreement under discussion In sum, I find the facts described warrant an inference that Osowsky was fully aware of the fact that Travelers intended to and did execute a collective bargaining agreement with Local 143 on behalf of the facility I fur ther find that an inference is warranted that Respondent Park Inn ratified Travelers' actions by accepting and abiding by the contract under discussion subsequent to August 24 As Respondent Park Inns alter ego, Re spondent New Park Inn was obligated during the time period in question to recognize and bargain with Local 144 and to refrain from dealing with any other labor or ganization Accordingly, I find, as alleged, that by recog nizing Local 143 as the bargaining agent of employees employed in the facility during Osowsky s tenure, Re spondent New Park Inn violated Section 8(a)(2) of the Act as alleged 6 New Park Inn and Beinhorn's alleged refusal to reinstate employees and New Park Inn s failure to make fund contributions The complaint alleges that Osowsky and Beinhorn vio lated Section 8(a)(1) and (3) by refusing to reinstate the employees who were discharged or locked out on August 15 and, additionally, that they violated Section 8(a)(5) by failing to make contributions to Local 144 s Benefit Funds after August 15, 1978 Having found that Respondents New Park Inn and Beinhorn were nothing more than alter egos of Respond ent Park Inn, I further find that the named entities were legally obligated from August 15 1978 forward to rein state the employees discharged on August 15 and they were legally obligated to make contributions to the Union s trust funds By failing to fulfill such obligations they violated Section 8(a)(1) (3) and (5) as alleged 7 Conclusion While I have concluded that Respondents New Park Inn (Osowsky) Beinhorn and Konig should be treated as alter egos of Respondent Park Inn, it should be noted that Osowsky Beinhorn and Konig assumed control of the Park Inn Home for Adults under conditions, that if they were deemed to be bona fide owners of the bust ness charged them with notice of the unfair labor prac tices committed by Respondent Park Inn and the em ploying enterprise remained substantially the same during the tenure of each 39 See G C Exh 11 With respect to Osowsky, the record reveals that the original charge in Case 29-CA-6645 was filed on August 30 1978 I have found however, that in late July or early August 1978, Osowsky, Kalik, and Krausman became participants in a scheme to oust the Union and the bargaining unit employees to enable the facility to operate with cheap labor supplied by Travelers More over, I note that on the very day Osowsky commenced to act as the operator of the facility, Respondent Park Inn s bargaining unit employees were picketing at the fa cility with signs that claimed they had been locked out In the circumstances, I find that Osowsky took posses sion of the facility with knowledge of the unfair labor practices committed by Respondent Park Inn As noted, supra, I have found that the entities operated by Re spondents Park Inn and New Park Inn had substantially identical ownership, management, equipment, supervi sion, customers, and business purpose 40 In short, I find that Respondent New Park Inn was a successor employ er and should be required to remedy the unfair labor practices committed by Respondent Park Inn even if my conclusion that it is also the latter s alter ego is not ac cepted Turning to Beinhorn and Konig, I note that the record reveals that the complaint was issued in Cases 29-CA- 6645 and 29-CA-6705 on October 30 1978, alleging that Respondents Park Inn, New Park Inn, and Travelers had engaged in unfair labor practices, and that thereafter as additional charges were filed amendments to the original complaint and eventually a second amended complaint were issued Moreover, Local 144 s picketing of the fa cility was shown to have been continued until some time after Beinhorn took over operation of the facility 41 Noting that neither Beinhorn nor Konig denied knowl edge of the fact that charges and/or complaints against their predecessors were outstanding at the time they commenced their tenure at the facility, I find they knew or should have known when they became the operator of the Park Inn Home for Adults that such charges and complaints were pending In addition to the fact that the record reveals that Beinhorn and Konig were aware of or should have been aware of, the charges and complaints which asserted that Respondent Park Inn, New Park Inn, and Travelers had engaged in unfair labor practices the record justifies a conclusion that the employing enterprise remained es sentially the same during their tenure at the facility Thus when Beinhorn became the operator of the facili ty, there was no hiatus in the operation the same rest dents who were there when Osowsky was the operator remained the employees and supervisors utilized by Osowsky were retained without break in service by Beinhorn, and ownership of the realty and personalty re marred in Kalik and Krausman, respectively Similarly when Konig officially became the operator, the sole 40 While Respondent New Park Inn operated the facility with employ ees supplied by Travelers the bargaining unit employees remained em ployees of the facility as they were constructively discharged and/or unfair labor practice strikes 41 The record reveals picketing was still being conducted when Koing was hired by Beinhorn 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD change in the employing enterprise was the substitution of Konig for Beinhorn Konig retained all the employees and supervisors then employed at the facility, operated with the same business purpose without hiatus, and own ership of the facility remained the same as it has been throughout the course of this litigation In sum, assuming, arguendo, that Osowsky, Beinhorn, and Konig are not deemed to be alter egos of Respond ent Park Inn, I conclude, for the reasons stated, they are successor employers within the meaning of Perma Vinyl Corp, supra, and Golden State Bottling Co v NLRB, supra, and should thus be required to remedy the unfair labor practices found here CONCLUSIONS OF LAW 1 Malvina Krausman d/b/a Park Inn Home for Adults, Pinkus Osowsky d/b/a New Park Inn Home for Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel Konig d/b/a Park Inn Home for Adults are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Pinkus Osowsky d/b/a New Park Inn Home for Adults, Marvin Beinhorn d/b/a Park Inn, and Samuel Konig d/b/a Park Inn Home for Adults, and each of them, are alter egos and successors of Malvina Krausman d/b/a Park Inn Home for Adults 3 Local 144, Hotel, Hospital, Nursing Home Allied Health Services Union, AFL-CIO, and Local 143, Office, Service and Allied Workers Union, AFL-CIO are labor organizations within the meaning of Section 2(5) of the Act 4 All service and maintenance employees employed by the Respondents at 115 02 Ocean Promenade, New York New York, excluding all other employees guards and supervisors as defined in Section 2(11) of the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act 5 At all times material Local 144 has been and is now the representative for the purpose of collective bargain ing of the employees in the unit described above within the meaning of Section 9(a) of the Act 7 By engaging in the conduct found to be unlawful in section III of this decision, the Respondents violated Section 8(a)(1), (2) (3), and (5) of the Act 8 The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act THE REMEDY tion 8(a)(1) (2) (3), and (5) of the Act I find it neces sary to order that the Respondents cease and desist therefrom and take certain action designed to effectuate the policies of the Act Having found that the Respondents have refused to bargain collectively with the Union as the exclusive rep resentative of the employees in the appropriate unit de scribed above, I shall order the Respondents, including Samuel Konig, d/b/a Park Inn Home for Adults, to rec ognize and, on request, bargain with the Union as the ex clusive representative of the employees in the appropri ate unit, and, if an understanding is reached, embody such understanding in a signed agreement I will recommend that Respondents be required to offer the employees who were discharged on August 15, 1978, immediate and full reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for the discnminatees, and to make whole all employees for any loss of earnings they may have suf fered as a result of the discrimination against them by paying them backpay computed on a quarterly basis with interest as prescribed in F W Woolworth Co, 90 NLRB 289 (1950), and Florida Steel Corp, 231 NLRB 651 (1977),42 from August 15, 1978, until the date a proper offer of reinstatement is made to each of them I will further recommend that the Respondents be re quired to reimburse the Union s welfare, dental, pension, and educational trust funds by paying them moneys un lawfully withheld from them from March 11, 1978, for ward Recognizing that Travelers Maintenance Inc executed a settlement stipulation in which it agreed to reimburse employees for dues fees, and initiation fees unlawfully deducted from their pay and remitted to Local 143 at a time when that labor organization was not lawfully enti tled to recognition as the bargaining agent of employees employed at the facility I will recommend that the Re spondents shall be held jointly liable with Travelers Maintenance Inc for reimbursing employees for moneys that were unlawfully deducted from their wages Because of the character and scope of the unfair labor practices found I find a broad cease and desist Order is necessary In addition, the Respondents will be ordered to post an appropriate notice encompassing all violations committed [Recommended Order omitted from publication ] Having found that Respondents have engaged in, and is engaging in unfair labor practices in violation of Sec 42 See generally Isis Plumbing Co 138 NLRB 716 (1962)