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NLRB - National Labor Relations Board |
Planned
Building Services, Inc. and Local
32B-32J, Service Employees International Union1
and United Workers of America, Party in Interest
United Workers of America and Local
32B-32J, Service Employees International Union.
Cases 2–CA–31245, 2–CA–31259, 2–CA–31268, 2–CA–31580 and
2–CB–17041
July 31, 2006
DECISION AND
ORDER
By
Chairman Battista and Members Liebman, Schaumber, Kirsanow, and Walsh
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This case presents two significant issues under the National Labor Relations Act: (1) the appropriate analytical framework to be applied in determining whether an alleged successor employer has unlawfully refused to hire its predecessor’s employees to avoid a bargaining obligation; and (2) the appropriate make-whole remedy when a successor employer discriminatorily denies employment to its predecessor’s employees and violates its duty to bargain by unilaterally setting initial terms and conditions of employment. The judge found that the
Respondent violated Section 8(a)(3) and (1) by refusing to hire the
employees of its predecessor to avoid an obligation, as a successor
employer, to recognize and bargain with the The judge also concluded that
the Respondent violated Section 8(a)(5) and (1) by refusing to recognize
and bargain with the Our decision also affirms the judge’s findings that the Respondent unlawfully solicited union authorization cards and unlawfully interrogated a job applicant. Finally, we agree with the judge that a broad order, coupled with a corporatewide cease-and-desist order and notice posting, is appropriate. i.
the appropriate analytical framework Initially, we address the issue
of whether A. Factual Background The Respondent provides cleaning
and maintenance services for residential and commercial buildings at
various locations in At the time the Respondent was awarded the contracts at 19 Rector, 32-42 Broadway, and 39 Broadway, each building had an incumbent work force employed by various cleaning contractors.3 These employees were represented by Local 32B-32J, Service Employees International Union (Local 32B-32J). The building at 71 Broadway, which had recently been converted from commercial to residential use, had been vacant for over a year and therefore had no incumbent work force. The Respondent chose not to employ most of its predecessor’s work force at any of the buildings, but rather to staff each building primarily with transferees from its other worksites.4 The Respondent’s principal owner, Michael Francis, admitted that one reason he decided not to hire most of the incumbent employees was that he knew that if he hired a sufficient number of the employees, he would be obligated to recognize Local 32B-32J as their bargaining representative. Although the Respondent hired a few of the predecessors’ employees, they did not constitute a majority at any one building. Vice President Joanne Stratakos, who was responsible for overseeing the startup of new accounts, met with the predecessors’ employees at 19 Rector, 32-42 Broadway, and 39 Broadway at the time the Respondent began servicing the buildings. Stratakos informed employees that there were no jobs available in their respective buildings, but that she would interview those who might be interested in positions at other buildings serviced by the Respondent. Prior to their meeting with Stratakos, employees at 19 Rector filled out application packets that had been distributed to them by Regional Supervisor Gilbert Sanchez. Stratakos told the employees that they had been given the packets by mistake and there were no jobs available in that building. The application forms were then torn up in front of employees, with the exception of the payroll information sheets, which were retained by Stratakos. Most of the employees left without interviewing. At 32-42 Broadway, approximately 18 of the predecessor’s employees submitted applications and interviewed with Stratakos. Most of the employees indicated that they would be willing to accept a job with the Respondent despite its lower wages. Stratakos informed employees that they would be contacted if openings occurred. After the interviews, Stratakos took the completed applications back to the Respondent’s main office rather than leaving them with Sanchez, who was directly in charge of hiring for the various buildings in downtown New York serviced by the Respondent. Although the Respondent subsequently filled a number of positions at 32-42 Broadway and other buildings, none of the former employees who had filled out applications were offered positions. The predecessor’s employees at 39 Broadway also submitted applications and indicated during their interviews with Stratakos that they would be willing to accept any job the Respondent offered. Stratakos promised to place the employees on a preferential hiring list and to contact them when positions became available. Neither the preferential hiring list nor the employees’ applications were provided to Sanchez for use in filling subsequent positions. Although Sanchez was aware of the hiring list, he did not ask for it or use it in filling available positions.5 The judge found that the Respondent’s refusal to hire its predecessors’ employees at 19 Rector, 32-42 Broadway, and 39 Broadway was motivated by its desire to avoid a successorship obligation to recognize and bargain with Local 32B-32J. The Respondent offered a number of reasons as to why it did not hire the employees; however, the judge found these reasons to be pretextual.6 Accordingly, the judge found that the Respondent violated Section 8(a)(3) and (1) by refusing to hire the employees. The judge further found that the Respondent violated Section 8(a)(5) and (1) by refusing to recognize and bargain with Local 32B-32J.7 B. Legal Background In Wright Line, supra, the Board set forth the standard to be applied to unfair labor practice allegations that turn on employer motivation. To establish a violation under Wright Line, the General Counsel has the burden to prove that an employer’s actions were the result of its animus toward union or protected activity. Once the General Counsel has met this burden, the Board will find a violation unless the employer proves that it would have taken the same action even in the absence of the protected activity. In Prior to Because the hearing in this
proceeding was held before Given the mixed treatment of the question in our post-FES precedent, we have decided to clarify the applicable standard in successorship-avoidance cases. Our decision today will resolve any conflict in our precedent and will establish a clear standard to be applied in cases in which a refusal to hire occurs in a successorship context.9 C. Analysis In The Board did not specifically
address in First, in successorship cases, the predecessor’s employees presumptively meet the successor’s qualifications for hire. Because a successor’s business is generally a continuation of its predecessor’s business, it follows that the predecessor’s employees, if hired by the successor, ordinarily would continue to perform essentially the same type of work as they did for the predecessor. Therefore, it serves no purpose to require the General Counsel to demonstrate, in each successorship case, that the employees have relevant experience or training for essentially the same jobs in the successor’s work force that they performed in the predecessor’s work force. Second, because a successor employer must fill vacant positions in starting up its business, it is similarly of little use to require the General Counsel to demonstrate that the employer was hiring or had concrete plans to hire. Thus, we find that these
additional elements that the Board added to the General Counsel’s
initial burden in Consistent with Wright
Line, our decision today provides the appropriate analysis for a
refusal-to-hire allegation arising in a context not considered by the
Board when it developed the Prior to [S]ubstantial evidence of union animus; lack of a convincing rationale for refusal to hire the predecessor’s employees; inconsistent hiring practices or overt acts or conduct evidencing a discriminatory motive; and evidence supporting a reasonable inference that the new owner conducted its staffing in a manner precluding the predecessor’s employees from being hired as a majority of the new owner’s overall work force to avoid the Board’s successorship doctrine.11 We find that these factors remain relevant in establishing a refusal-to-hire violation in the successorship context. Once the General Counsel has shown that the employer failed to hire employees of its predecessor and was motivated by antiunion animus, the burden then shifts to the employer to prove that it would not have hired the predecessor’s employees even in the absence of its unlawful motive. In establishing its Wright Line defense, the employer is free to show, for example, that it did not hire particular employees because they were not qualified for the available jobs, and that it would not have hired them for that reason even in the absence of the unlawful considerations. Similarly, the employer is free to show that it had fewer unit jobs than there were unit employees of the predecessor. D. Application to the Case at Bar The Respondent argues that the
General Counsel has failed to meet the burden set forth in ii.
the unilateral setting of initial terms In general, a successor employer has the right to set the initial terms and conditions of employment.13 There is an exception where the successor employer “plans to retain all” of the predecessor’s employees.14 Further, under Love’s Barbecue,15 an employer who discriminatorily refuses to hire the employees of the predecessor may not unilaterally set the initial terms and conditions. Although it cannot be said with certainty whether the successor would have retained all of the predecessor employees if it had not engaged in discrimination, the Board resolves the uncertainty against the wrongdoer and finds that, but for the discriminatory motive, the successor employer would have employed the predecessor employees in its unit positions.16 Here, the Respondent hired some of the predecessor’s employees. Further, the judge found, consistent with extant Board precedent, that but for the discrimination, the Respondent would have filled all of its unit positions with employees of the predecessor.17 Thus, the Respondent did not have the right to unilaterally set the initial terms and conditions of employment. Consequently, that unilateral action was unlawful under Section 8(a)(5).18 iii.
the appropriate remedy for the respondent’s discriminatory refusal to
hire the predecessors’ employees and for its unilateral implementation
of terms and conditions of employment Where a successor employer has
violated Section 8(a)(3) by unlawfully refusing to hire employees of the
predecessor and has violated Section 8(a)(5) by unlawfully implementing
initial terms and conditions of employment without bargaining with the
union, the Board’s traditional remedy requires the successor to
“restore as nearly as possible the situation that would have prevailed
but for the unfair labor practices.”
State Distributing (1) offer reinstatement to the discriminatees; and (2) make the discriminatees whole for their losses. To remedy the 8(a)(5) violation, the successor must: (1) at the union’s request, restore the terms and conditions of employment established by the predecessor, rescinding the unilateral changes made by the successor; (2) recognize and bargain with the union; and (3) make its employees whole for their losses. See State Distributing Co., 282 NLRB at 1048, citing Love’s Barbecue Restaurant No. 62, 245 NLRB 78, 82 (1979), enfd. in part 640 F.2d 1094 (9th Cir. 1981). With respect to the make-whole aspects of the remedy, that arising from the 8(a)(3) violation runs to the discriminatees, i.e., those who were not hired, while that arising from the 8(a)(5) violation runs to those who were hired. For both the discriminatees and for the successor’s employees, the make-whole remedy, including backpay and benefits, is measured with reference to the predecessor’s terms and conditions of employment. It extends from the date of the successor’s unlawful refusal to bargain until the successor, consistent with the Board’s order, reaches a new agreement with the union or bargains to a lawful impasse. As we will explain, we have decided to refine the Board’s traditional make-whole remedy in cases like this one to strike a better balance between two principles that guide the Board’s remedial discretion: placing the burden of uncertainty on the wrongdoer and avoiding a remedy that is, in fact, punitive. There is a substantial issue as to how long the backpay should run at the predecessor’s rate. The make-whole aspects of the Board’s traditional remedy rest on an uncertainty rationale. It is difficult to know what would have occurred if the successor had fulfilled its duty to bargain instead of unilaterally imposing terms and conditions of employment. In doubt are both what terms would have been reached through good-faith bargaining (whether by agreement or as the result of a bargaining impasse, allowing unilateral implementation) and when such terms would have been established.20 The Board long has recognized that as a direct result of the successor’s misconduct, we are “faced with a less-than-perfect set of remedial choices” in this situation: The remedy the Board has chosen has the drawback of retroactively imposing on the [successor] terms and conditions of employment that had been set by the contract negotiated by its predecessor, but it has the advantage of giving some recompense to the victims of the discrimination and preventing the [successor] from enjoying a financial position that is quite possibly more advantageous than the one it would occupy had it behaved lawfully. State
Distributing The majority of the Federal appellate courts that have reviewed this remedy have approved it as within the Board’s discretion.21 Other courts of appeals, however, have rejected the remedy as punitive to the extent that it orders restoration of the predecessor’s employment terms for longer than a reasonable bargaining period. They believe that the Board should take into account the likelihood that the employer and union “would either have negotiated a new wage rate or reached impasse” after a reasonable period of bargaining. Capital Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1011 (D.C. Cir. 1998); see also Kallman v. NLRB, 640 F.2d 1094, 1103 (9th Cir. 1981); Armco, Inc. v. NLRB, 832 F.2d 357 (6th Cir. 1988). The Act does not authorize the
Board to impose punitive measures. NLRB
v. Strong, 393 The Board’s traditional make-whole remedy categorically resolves the uncertainty against the successor: the Board has rejected any effort to determine, as a factual matter, what would have happened had the successor bargained in good faith. The State Distributing Board concluded that this determination was “virtually impossible to calculate” and necessarily “involve[d] imposing contractual terms based on this Agency’s conjecture without an adequate factual basis.” 282 NLRB at 1049. But the Board, on at least one occasion, has been able to make such a determination, complying with a court’s remand. See Armco, Inc., 298 NLRB 416 (1990). There, the Board placed the burden of proof on
[the successor] to establish that it would not have agreed to the monetary
provisions of the predecessor employer’s collective-bargaining agreement
. . ., the date on which it would have bargained to agreement, and the
terms of the agreement that would have been negotiated, or to establish
the date on which it would have bargained to good-faith impasse and
implemented its own monetary proposals.
[ We believe that the approach followed in Armco preserves the core of the Board’s traditional make-whole remedy, while at the same time helping to ensure that the Board’s remedy does not, in fact, amount to a penalty, as applied in a particular case. Thus, although genuine uncertainty in successorship-avoidance cases will continue to be resolved against the successor as the wrongdoer, where the successor can provide the Board with an adequate factual basis for resolving the uncertainty created by its misconduct, it should be permitted to do so. Placing the burden of proof on the successor is both equitable (the successor is the wrongdoer) and practical (the successor has superior access to the relevant evidence).23 Accordingly, we will issue an order consistent with our traditional remedy in cases like this one. But we will then permit the Respondent, in a compliance proceeding, to present evidence establishing that it would not have agreed to the monetary provisions of the predecessor employer’s collective-bargaining agreement, and further establishing either the date on which it would have bargained to agreement and the terms of the agreement that would have been negotiated, or the date on which it would have bargained to good-faith impasse and implemented its own monetary proposals.24 If the Respondent carries its burden of proof on these points, the measure of the Respondent’s make-whole obligation may be adjusted accordingly.25 iv.
the solicitation of union authorization The Respondent began servicing 71 Broadway on September 2, 1997, staffing the building partly with transferees from its other sites and partly with new employees. Within the first week, Supervisor Sanchez gave four employees authorization cards for the United Workers of America (UWA) and instructed them to sign. Three of these were new employees who were given cards on the day they were hired. The fourth employee, who had been working for the Respondent for approximately a month as a temporary employee at another site, was given the card upon his transfer to 71 Broadway. There is no evidence that the employees had previously been members of UWA, and UWA was not recognized as the bargaining representative for employees at 71 Broadway at the time the employees were instructed to sign the cards. The Respondent recognized UWA as the employees’ representative less than 3 weeks after it began servicing the building. The judge found that Sanchez acted unlawfully by instructing employees to sign the authorization cards. We agree. An employer may not assist a union in its organizational efforts by requiring an employee to sign a union authorization card. See, e.g., Fountainview Care Center, 317 NLRB 1286, 1290–1291 (1995), enfd. mem. 88 F.3d 1278 (D.C. Cir. 1996); Famous Castings Corp., 301 NLRB 404, 407 (1991); Denver Lamb Co., 269 NLRB 508, 510–511 (1984). Thus, we affirm the judge’s finding of the violation. v.
the interrogation of julio mosquera Julio Mosquera was employed as a concierge by the Respondent’s predecessor at 39 Broadway. Mosquera also possessed a fire safety director’s license. On or about June 13, 1998, Mosquera was offered a job by the son of Owner Michael Francis at the same salary and benefits paid by the predecessor. Although Mosquera accepted the job, the final terms of his hire were not settled at that time. The Respondent began servicing 39 Broadway on June 24, 1998. On June 25, Stratakos interviewed the predecessor’s employees, including Mosquera. Stratakos told Mosquera that she was aware of his conversation with Francis but she had to treat him like everyone else, and she required him to fill out an application. She then asked him if he intended to work if the employees went on strike. Mosquera’s initial response was that he would fill out the application. Stratakos repeated the question, and Mosquera stated that he would “stay inside and work.” Once Mosquera indicated that he would be willing to cross a picket line, Stratakos gave him an application to fill out and discussed the terms of his employment. We agree with the judge, for the reasons set forth in his decision, that Mosquera’s status at the time Stratakos questioned him about whether he would cross a picket line was that of a job applicant. We further agree with the judge that, under these circumstances, Stratakos’ questioning of Mosquera was coercive and thus violated Section 8(a)(1). See generally Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The Respondent argues that Mosquera had already been hired at the time of the interview and that, given his status as an employee, the questioning was lawful because it was in anticipation of a strike. We disagree. It is clear that from the outset of the interview Stratakos conveyed to Mosquera the impression that he was no different from the other applicants. Indeed, Stratakos refused to permit Mosquera to fill out an application and did not discuss the terms of his employment until after he assured her he would cross a picket line in the event of a strike. We conclude that, in these circumstances, Mosquera would reasonably believe that his employment was contingent upon his answer to Stratakos’ question, and that Stratakos violated the Act as alleged. vi.
the broad and corporatewide order We agree with the judge, for the reasons set forth in his decision, that a broad order is appropriate in this case. We also agree that a corporatewide cease-and-desist order and notice posting is appropriate. This is the third in a series of cases in which the Board has found that the Respondent has violated Section 8(a)(2) and (1) by unlawfully soliciting union cards. See PBS II, 330 NLRB at 791; PBS I, 318 NLRB at 1049.26 Further, the Respondent violated Section 8(a)(5), (3), and (1) at three different work sites in a period of less than 7 months by refusing to hire its predecessors’ employees to avoid a successorship bargaining obligation. Where, as here, there is a clear pattern or practice of unlawful conduct by the Employer, the Board may find it appropriate to issue a corporatewide order and notice posting. See, e.g., Beverly Health & Rehabilitation Services, 346 NLRB No. 111, slip op. at 12 (2006); Miller Group, 310 NLRB 1235 fn. 4 (1993), enfd. 30 F.3d 1487 (3d Cir. 1994). We find that absent a corporatewide remedy, the Respondent remains likely to commit unlawful actions at other facilities against other employees. Accordingly, we will issue a single, corporatewide remedial order addressing all of the violations found. We will also require the posting of two versions of the notice to employees, one to be posted at each of the facilities involved in this proceeding and at all of the Respondent’s offices that oversee these facilities, and the other to be posted at each of the other facilities serviced by the Respondent and at the Respondent’s other offices (if any) that oversee such facilities. Beverly Health & Rehabilitation Services, supra. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below, and orders that A. Respondent Planned Building
Services, Inc. (PBS), 1. Cease and desist from (a) Coercively interrogating applicants for employment concerning their sympathies on behalf of Local 32B-32J, Service Employees International Union (Local 32B-32J), or interrogating them as to whether they would cross a picket line established and maintained by Local 32B-32J. (b) Directing, ordering, or instructing its employees to sign authorization cards or dues authorization forms for the United Workers of America (UWA). (c) Deducting dues for UWA from the salaries of employees who have not authorized such deductions. (d) Refusing to recognize and bargain with Local 32B-32J as the exclusive collective-bargaining representative of its employees in the following separate appropriate units: (1) All service employees
employed by Respondent PBS at (2) All service employees
employed by Respondent PBS at 32-34 Broadway, (3) All service employees
employed by Respondent PBS at 39 Broadway, (e) Unilaterally changing wages, hours, and other terms and conditions of employment of the employees in the above-described units without first giving notice to and bargaining with Local 32B-32J about such changes. (f) Recognizing and bargaining with the UWA as the exclusive collective-bargaining representative of its employees who are employed at 19 Rector Street, 32-42 Broadway, 39 Broadway, and 71 Broadway, New York, New York, unless and until UWA has been certified by the National Labor Relations Board as the exclusive collective-bargaining representative of those employees. (g) Giving effect to or enforcing the collective-bargaining agreements that it executed with UWA with respect to any of the four locations described above, or to any extension, renewal, or modification of these agreements; provided, however, that nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase, or other improved benefits or terms and conditions of employment, that may have been established pursuant to the performance of the above collective-bargaining agreements. (h) Discouraging activity and support for Local 32B-32J by refusing to hire or in any other manner discriminating against employees with respect to their hours, wages, or other terms and conditions of employment in order to avoid having to recognize and bargain with Local 32B-32J. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with Local 32B-32J as the exclusive representative of its employees at 19 Rector Street, 32-42 Broadway, and 39 Broadway with respect to wages, hours, and other terms and conditions of employment, and if agreements are reached embody such agreements in a signed document. (b) At the request of Local 32B-32J, rescind any departures from terms and conditions of employment that existed prior to its commencing operations at the three above-mentioned facilities, restoring preexisting terms and conditions of employment until it negotiates in good faith with Local 32B-32J to agreement or impasse. (c) Make whole, in the manner set forth in the remedy section of the judge’s decision except as modified herein, the unit employees for losses caused by Respondent PBS’s failure to apply the terms and conditions of employment that existed prior to its commencing operations at the three above-mentioned facilities, subject to Respondent PBS demonstrating in a compliance hearing that, had it lawfully bargained with Local 32B-32J, it would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under its predecessor. (d) Withdraw and withhold all recognition from UWA as the collective-bargaining representative of its employees at 19 Rector Street, 32-42 Broadway, 39 Broadway, and 71 Broadway, New York, New York, unless and until UWA has been certified by the National Labor Relations Board as the collective-bargaining representative of Respondent PBS’s employees at these locations. (e) Jointly and severally with Respondent UWA, reimburse all present and former PBS employees at 71 Broadway for all dues, initiation fees, and assessments that those employees paid, plus interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), except for those employees who voluntarily joined UWA before Respondent PBS and Respondent UWA executed a collective-bargaining agreement covering employees at that location. (f) Reimburse employees who are
employed at (g) Within 14 days from the date of this Order, offer to all of the former employees of Jubilant Realties – BV Management at 19 Rector Street, to all former employees of Shepard Industries at 32-42 Broadway, and to all of the former employees of Perfect Building Maintenance at 39 Broadway whom the Respondent did not hire, employment at the buildings at which they had previously worked or, if such positions no longer exist, offer them substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place. If Respondent PBS does not have sufficient positions available, the remaining employees shall be placed on a preferential hiring list. (h) Make the employees referred to in the preceding paragraph 1(g) whole for any loss of earnings and other benefits they may have suffered by reason of Respondent PBS’s unlawful refusal to employ them, in the manner set forth in the remedy section of the judge’s decision except as modified herein. (h) Make Kimble Kalarsian and Howard Angus whole for losses suffered as a result of the discrimination against them as set forth in the remedy section of the judge’s decision. (i) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records, if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this order. (j) Within 14 days after service by the Region, post at each of the facilities involved in this proceeding, and at its offices overseeing these facilities, copies of the attached notice marked “Appendix A.”27 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent PBS’s authorized representative, shall be posted by Respondent PBS and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent PBS to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of this proceeding, Respondent PBS has gone out of business or closed the facilities involved in these proceedings, Respondent PBS shall duplicate and mail, at its own expense, a copy of the notice to all current and former employees employed by Respondent PBS at any time since September 6, 1997. (k) Within 14 days after service by the Region, post at all of its other facilities, and at its other corporate offices, copies of the attached notice marked “Appendix B.”28 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent PBS’s authorized representative, shall be posted by Respondent PBS and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent PBS to ensure that the notices are not altered, defaced, or covered by any other material. (l) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. B. Respondent United Workers of America (UWA), its officers, agents, and representatives, shall 1. Cease and desist from (a) Acting as the collective-bargaining representative of the employees of Respondent PBS at 71 Broadway, New York, New York, unless and until certified by the Board as the collective-bargaining representative of such employees. (b) Maintaining or giving force or effect to any collective-bargaining agreement with Respondent PBS that covers PBS employees at 71 Broadway, unless and until it is certified by the Board as the collective-bargaining representative of such employees. (c) Accepting and retaining money in amounts equal to union initiation fees and dues that have been wrongfully deducted from the pay of the employees of PBS. (d) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Jointly and severally with Respondent PBS, reimburse all former and present PBS employees at 71 Broadway for all dues, initiation fees, and other assessments that those employees paid, plus interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), except for those employees who voluntarily joined UWA before Respondent PBS and Respondent UWA executed a collective-bargaining agreement covering employees at this location. (b) Within 14 days after service by the Region, post at its offices and meeting halls copies of the attached notice marked “Appendix C.”29 Copies of the notice, on forms provided by the Regional Director for Region 2, after being signed by Respondent UWA’s authorized representative, shall be posted by Respondent UWA and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent UWA to ensure that the notices are not altered, defaced, or covered by any other material. (c) Sign and return to the Regional Director sufficient copies of the notice for posting by Respondent PBS at all places where notices to employees are customarily posted. (d) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that Respondent UWA has taken to comply.
Dated, Wilma B. Liebman, Member Peter C. Schaumber, Member Peter N. Kirsanow Member Dennis P. Walsh, Member (seal)
National Labor Relations
Board APPENDIX
A Notice
To Employees Posted
by Order of the National
Labor Relations Board An
Agency of the The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. federal law gives you the right to Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. We will not coercively interrogate applicants for employment concerning their sympathies on behalf of Local 32B-32J, Service Employees International Union (Local 32B-32J), or interrogate them as to whether they would cross a picket line established and maintained by Local 32B-32J. We will not direct, order, or instruct our employees to sign authorization cards or dues authorization forms for the United Workers of America (UWA). We will not deduct dues for UWA from the salaries of our employees who have not authorized such deductions. We will not refuse to recognize and bargain with Local 32B-32J as the exclusive collective-bargaining representative of our employees in the following appropriate units: (a) All service employees
employed by us at (b) All service employees
employed by us at 32-34 Broadway, (c) All service employees
employed by us at 39 Broadway, We will not unilaterally change wages, hours, and other terms and conditions of employment of our employees in the above-described units without first giving notice to and bargaining with Local 32B-32J about such changes. We will not recognize and bargain with the UWA as the exclusive collective-bargaining representative of our employees who are employed at 19 Rector Street, 32-42 Broadway, 39 Broadway, and 71 Broadway, New York, New York, unless and until UWA has been certified by the National Labor Relations Board as the exclusive collective-bargaining representative of these employees. We will not give effect to or enforce the collective-bargaining agreements that we executed with UWA with respect to any of the four locations described above, or to any extension, renewal, or modification of these agreements; provided, however, nothing in the Board’s Order shall authorize or require the withdrawal or elimination of any wage increase, or other improved benefits or terms and conditions of employment, that may have been established pursuant to the performance of the above collective-bargaining agreements. We will not discourage activity and support for Local 32B-32J by refusing to hire or in any other manner discriminating against employees with respect to their hours, wages, or other terms and conditions of employment, in order to avoid having to recognize and bargain with Local 32B-32J. We will not in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. We will recognize and, on request, bargain collectively with Local 32B-32J as the exclusive representative of our employees at 19 Rector Street, 32-42 Broadway, and 39 Broadway, with respect to wages, hours, and other terms and conditions of employment, and if agreements are reached embody such agreements in a signed document. We will, at the request of Local 32B-32J, rescind any departures from terms and conditions of employment that existed prior to our commencing operations at the three above-mentioned facilities, restoring preexisting terms and conditions of employment until we negotiate in good faith with Local 32B-32J to agreement or impasse. We will make whole the unit employees for losses caused by our failure to apply the terms and conditions of employment that existed prior to our commencing operations at the three above-mentioned facilities, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with Local 32B-32J, we would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under our predecessor. We will withdraw and withhold all recognition from UWA as the collective-bargaining representative of our employees at 19 Rector Street, 32-42 Broadway, 39 Broadway, and 71 Broadway, New York, New York, unless and until UWA has been certified by the National Labor Relations Board as the collective-bargaining representative of our employees at these locations. We will, jointly and severally with the United Workers of America, reimburse all our present and former employees at 71 Broadway for all dues, initiation fees, and assessments that those employees paid, plus interest, except for those employees who voluntarily joined UWA before we executed a collective-bargaining agreement with UWA covering our employees at this location. We
will reimburse employees who are employed at We will, within 14 days from the date of this Order, offer to all of the former employees of Jubilant Realties – BV Management at 19 Rector Street, to all former employees of Shepard Industries at 32-42 Broadway, and to all of the former employees of Perfect Building Maintenance at 39 Broadway whom we did not hire, employment at the buildings at which they had previously worked or, if such positions no longer exist, offer them substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place. If we do not have sufficient positions available, the remaining employees shall be placed on a preferential hiring list. We will make the employees referred to in the immediately preceding paragraph whole for any loss of earnings and other benefits they may have suffered by reason of our unlawful refusal to employ them, less any net interim earnings, plus interest. We will make Kimble Kalarsian and Howard Angus whole for losses suffered as a result of our discrimination against them, less any net interim earnings, plus interest. Planned
Building Services, Inc. APPENDIX
B Notice
To Employees Posted
by Order of the National
Labor Relations Board An
Agency of the The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. federal law gives you the right to Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. We will not coercively interrogate applicants for employment concerning their union sympathies or interrogate them as to whether they would cross a picket line that is maintained and established by a union. We will not direct, order, or instruct our employees to sign authorization cards or dues authorization forms for any union. We will not deduct dues for any union from the salaries of our employees who have not authorized such deductions. We
will not refuse to recognize and bargain with Local 32B-32J,
Service Employees International Union (Local 32B-32J) as the exclusive
collective-bargaining representative of appropriate units of employees in
several of our buildings located in We will not unilaterally change wages, hours, and other terms and conditions of employment of our employees in the above-mentioned units without first giving notice to and bargaining with Local 32B-32J about such changes. We will not recognize and bargain with the United Workers of America (UWA) as the exclusive collective-bargaining representative of our employees unless and until that union has been certified by the National Labor Relations Board as the exclusive-bargaining representative of these employees. We will not give effect to or enforce the collective-bargaining agreements that we unlawfully executed with the UWA, or to any extension, renewal, or modification of these agreements; provided, however, nothing in the Board’s Order shall authorize or require the withdrawal or elimination of any wage increase, or other improved benefits or terms and conditions of employment, that may have been established pursuant to the performance of the above collective-bargaining agreements. We will not discourage activity and support for any union by refusing to hire or in any other manner discriminating against employees with respect to their hours, wages, or other terms and conditions of employment, in order to avoid having to recognize and bargain with that union. We will not in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. We will recognize and, on request, bargain collectively with Local 32B-32J as the exclusive collective-bargaining representative of our employees at various locations in New York, New York, with respect to wages, hours, and other terms and conditions of employment, and if agreements are reached embody such agreements in a signed document. We will, at the request of Local 32B-32J, rescind any departures from terms and conditions of employment that existed prior to our commencing operations at the above-mentioned facilities, restoring preexisting terms and conditions of employment until we negotiate in good faith with Local 32B-32J to agreement or impasse. We will make whole the unit employees for losses caused by our failure to apply the terms and conditions of employment that existed prior to our commencing operations at the above-mentioned facilities, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with Local 32B-32J, we would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under its predecessor. We will withdraw and withhold all recognition from any union as the collective-bargaining representative of our employees unless and until that union has been certified by the National Labor Relations Board as the collective-bargaining representative of our employees at various locations. We will, jointly and severally with the UWA, reimburse our present and former employees for all dues, initiation fees, and assessments that they paid as a result of our unlawful recognition of UWA, plus interest, except for those employees who voluntarily joined UWA before we unlawfully executed a collective-bargaining agreement with that union. We will, within 14 days from the date of this Order, offer to all of the former employees of our predecessors whom we unlawfully refused to hire, employment at the buildings at which they had previously worked or, if such positions no longer exist, offer them substantially equivalent positions without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place. If we do not have sufficient positions available, the remaining employees shall be placed on a preferential hiring list. We will make the employees referred to in the immediately preceding paragraph whole for any loss of earnings and other benefits they may have suffered by reason of our unlawful refusal to employ them, less any net interim earnings, plus interest. Planned
Building Services, Inc. APPENDIX
C Notice
To Employees and Members Posted
by Order of the National
Labor Relations Board An
Agency of the The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice. federal law gives you the right to Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your benefit and protection Choose not to engage in any of these protected activities. We
will not act as the collective-bargaining
representative of the employees of Planned Building Services Inc. (PBS),
at 71 Broadway, We will not maintain or give force or effect to any collective-bargaining agreement with PBS that covers PBS employees at 71 Broadway, unless and until we are certified by the Board as the collective-bargaining representative of those employees. We will not accept and retain money in amounts equal to union initiation fees and dues that have been wrongfully deducted from the pay of the employees of PBS. We will not in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. We will, jointly and severally with PBS, reimburse all former and present PBS employees at 71 Broadway for all dues, initiation fees, and other assessments that those employees paid, plus interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), except for those employees who voluntarily joined UWA before we unlawfully executed a collective-bargaining agreement covering employees at this location. United
Workers of Judith Anderson,
Esq. and Simon-Jon
Koike, Esq., for
the General Counsel. Stephen Ploscowe,
Esq., Dean L. Burrell, Esq., and
Loren Rosenberg, Esq. (Grotta, Glassman & Hoffman, P.A.), of
Brian Kronick, Esq.
(Balk, Oxfeld, Mandell & Cohen), of
Ira Sturm, Esq. and
Ronald Raab, Esq. (Raab & Sturm), of
DECISION Statement
of the Case Steven Fish, Administrative Law Judge. Pursuant to various charges and amended charges filed by Local 32B-32J, Service Employees International Union, AFL–CIO (the Charging Party or Local 32B-32J). The Regional Director issued a series of complaints and amended complaints, culminating in an order further consolidating cases, consolidated complaint and notice of hearing on April 20, 1999. This document, refers to several previously issued complaints, which collectively allege that Planned Building Service, Inc. (Respondent Employer or PBS) violated Section 8(a)(1), (2), (3), and(5) of the National Labor Relations Act (the Act), and that United Workers of America (Respondent Union or UWA) violated Section 8(b)(1)(A) and (2) of the Act. The trial was with respect to the allegations raised by the complaints was held before me on July 19–23, September 21–29, and October 5 and 21, 1999. Briefs have been filed by the General Counsel and PBS and have been carefully considered. Based upon the entire record,[1] I make the following Findings
of Fact i.
jurisdiction and labor organization PBS is a Annually, PBS performs services valued in excess of $50,000 directly for enterprises located within the State of New York, and purchases and receives goods valued in excess of $5000 directly from suppliers located outside the State of New Jersey. It is admitted and I so find, that PBS is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is also admitted and I so find that Local 32B-32J and United Workers of America are labor organizations within the meaning of Section 2(5) of the Act. ii.
posttrial motions On November 3, 1999, PBS filed a motion to supplement the record. Responses and objections were thereafter filed by the General Counsel opposing PBS’s request. By Order dated November 12, 1999, I denied PBS’s request to supplement the record, principally because the material sought to be introduced did not meet the Board’s criteria for newly discovered evidence, as well as the fact that PBS had not demonstrated the relevance of any of the evidence that it sought to introduce. PBS in its brief made reference to this Order, and implicitly requested that it be changed, in view of the fact that on the last day of trial, counsel for PBS stated on the record that one of the items sought to be introduced in its motion (a dismissal letter from the Regional Director) would be submitted, and no one objected at the time. I have reconsidered my Order in light of PBS’s request, responses submitted by the parties subsequent to the issuance of the Order, as well as my review of the record. Based on these factors, I shall reverse my ruling in part, and admit into evidence the dismissal letter issued by the Regional Director in Case 2–CA–27766, as Respondent’s Exhibit 27. In that regard, I note that PBS had indicated on the record that it intended to introduce this document and no objection was raised by any party at the time. Moreover, upon reviewing the record, more particularly the testimony of Michael Francis, CEO of PBS, there are references to this document, and his testimony concerning PBS’s hiring at the location involved in that case is somewhat confusing. In that light, the introduction of this letter is necessary to clarify the record and enable me to better understand his testimony. For similar reasons, I shall also admit into evidence the informal settlement agreement executed in the some case executed by all parties, including the Regional Director’s letter refusing to issue complaint because of the undertakings in the settlement. These documents were submitted by PBS in one of its responses to the Charging Party’s position statements, after which the Charging Party requested that they be admitted into evidence. I agree. The testimony of Francis implicitly made reference to these documents explaining his hiring actions at the location involved there, and in my view the record should include these items in order to clarify and explain his somewhat confusing testimony in that regard. However, I reaffirm my previous Order with respect to the introduction of the personnel files sought to be introduced by PBS. I note particularly that PBS made no offer to introduce these documents during the trial nor make any mention that it intended to do so. Moreover, PBS made no specific reference to what these documents would establish. On November 16, 1999, the Charging Party requested that I take administrative notice of various documents that it appended to its letter, including charges, complaints, and informal settlement agreements involving PBS’s conduct at various locations in Massachusetts. PBS filed a response dated November 24, 1999, opposing the Charging Party’s request for administrative notice of these documents. In its request, the Charging
Party asserts that these documents are admissible for the purposes of
assessing remedy, and in support of the request that it intends to make in
its brief for a broad order and for reimbursement of costs to Local
32B-32J. However, it is clear
that informal settlement agreements (with or without a nonadmission
clause) cannot be assessed in determining whether Respondent has
demonstrated a proclivity to violate the Act, because such agreements have
no probative value in establishing violations of the Act.
Painters District
Council 9 (We’re Associates,
Inc.), 329 NLRB 140, 144 (1999); Sheet
Metal Workers Local 28 ( Finally, on February 1, 2000, after the receipt of briefs, PBS filed a letter which purported to point out “certain errors in the recitation of facts,” contained in the briefs of the Charging Party and the General Counsel. Thereafter, the General Counsel moved to strike PBS’ letter, because it was “nothing more than . . . reply brief without requesting permission in disregard of the Board’s Rules.” PBS replied by letter February 3, 2000, asserting that its letter was not a reply brief, but merely an attempt to correct factual errors and omissions. Further it notes that the Board’s rules and Regulations are silent with respect to reply briefs, and do not preclude their being filed. While PBS is correct that the Board’s Rules do not preclude the filing of reply briefs, they did not authorize or permit such briefs either. I agree with the General Counsel that Board precedent permits such briefs only with the permission of the ALJ. Inasmuch as PBS has neither requested nor received permission from me to file such a brief, the General Counsel’s motion to strike is appropriate, and is granted. A.H. Belo Corp., 285 NLRB 807, 810 fn. 1 (1987); Rainey Security, 274 NLRB 269, 273 fn. 2 (1985).[2] iii.
prior related cases A.
Planned Building Services, 318 NLRB 1049 On September 11, 1995, the Board
issued a Decision and Order in the above case adopting and affirming the
Decision issued by Administrative Law Judge Snyder with one modification.
This case dealt with PBS’ conduct at four buildings in upper On October 17, 1991, prior to PBS taking over the contract to provide maintenance services for the four buildings, an election was conducted in Case 2–RD–1260, which involved Local 32B-32J and Local 912 United Commercial and Industrial Workers (Local 912). The results of the election was 71 votes for Local 32B-32J and 54 votes for Local 912. Thereafter, Local 912 filed unfair labor practice (ULP) charges and objections, which resulted in the issuance of an order consolidating a complaint and objections hearing. On February 24, 1994 (well after PBS commenced servicing the facilities involved in that case), Administrative Law Judge Edelman issued a decision concluding that Ferlin had unlawfully threatened employees with discharge if they supported Local 912 in violation of Section 8(a)(1) of the Act and recommended that this conduct warranted setting aside the election.& |
