AMI

National Labor Relations Board - Board Decisions

Oct 31, 1995

319 N.L.R.B. 536 (N.L.R.B. 1995)

536
319 NLRB No. 73
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We find merit in the General Counsel’s request that the notice
be printed and posted in English, Spanish, Polish, and Creole and
we shall modify the judge’s recommended Order accordingly. In ad-
dition, we shall correct the judge’s failure to use the proper reinstate-
ment language in his recommended Order, his failure to include the
unit descriptions in the recommended Order and notice, and his fail-
ure to provide a make-whole remedy for the Respondent’s unlawful
unilateral changes.
3 As noted, the one predecessor unit employee who was hired was
promptly fired.
4 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir.
1968).
5 See Laro Maintenance Corp., 312 NLRB 155 (1993), enfd. 56
F.3d 224 (D.C. Cir. 1995).
We also agree with the judge that the Respondent violated Sec.
8(a)(5) by refusing to recognize and bargain with the Unions and by
unilaterally setting the initial terms and conditions of employment.
With respect to the unilateral setting of initial terms and condi-
tions, Member Cohen agrees with the judge’s finding that the Re-
spondent had an unlawful policy of avoiding the hire of any of the
predecessor’s unit employees. In these circumstances, Member
Cohen would place the burden of proof on the wrongdoer and would
presume that, but for the discriminatory policy, the Respondent
would have hired its entire complement from the predecessor’s em-
ployees. Similarly, the Respondent has not shown that, if it had hired
the predecessor’s employees, they would have been told that their
initial terms and conditions would differ from those prevailing under
the predecessor.
Airway Maintenance, Inc. d/b/a AMI, Inc. and Win-
dow Cleaners Union, Local No. 2, Service Em-
ployees International Union, AFL–CIO and Air
Transport Local 504, Transport Workers
Union of America, AFL–CIO. Cases 29–CA–
18211, 29–CA–18232, 29–CA–18525
October 31, 1995
DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On February 14, 1995, Administrative Law Judge
James F. Morton issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions as modified and to adopt the recommended
Order as modified and set forth in full below.2
We agree with the judge that the General Counsel
has established a prima facie case under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), that the Re-
spondent refused to hire its predecessor’s employees in
order to avoid an obligation to recognize and bargain
with both Charging Parties, Local 2 and Local 504.
The credited evidence establishes that the Respond-
ent predetermined not to hire any of the predecessor’s
employees and, in fact, carried out its plan to near per-
fection. The one discriminatee who somehow ‘‘slipped
through’’ despite this policy, Ricardo Barros, was dis-
charged almost immediately on being recognized as an
employee of the predecessor. Further, we rely on the
following to find a prima facie case: statements by the
Respondent’s representatives that employees of the
predecessor were being denied job applications be-
cause they had worked for the predecessor employer;
and the consistent refusal by the Respondent’s officials
to speak with union officials despite the Union’s re-
peated attempts.
We also agree with the judge that the Respondent
has failed to demonstrate that it would have taken the
same action in the absence of the predecessor employ-
ees’ union affiliation. First, we rely on the fact that no
evidence was presented by the Respondent to show
that any of the predecessor’s employees were not hired
for lawful reasons. In fact, the Respondent failed to
offer any credible reason why none of the prede-
cessor’s employees was hired.3 Furthermore, we agree
with the judge, based on the reasons stated by him,
that the Respondent’s asserted business defense—that
it had a policy of hiring employees who had been re-
ferred by supervisors or other employees—is false.
When the Board finds that the reasons given for an ac-
tion are false, it may infer that there is another, unlaw-
ful reason for the action.4 We, thus, infer that the Re-
spondent’s refusal to hire the predecessor employer’s
employees was part of its plan to avoid an obligation
to recognize and bargain with the Unions and that it
thereby violated Section 8(a)(3) and (1) of the Act by
refusing to hire them.5
AMENDED REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1),
(3), and (5) of the Act, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully re-
fused to hire employees formerly employed by Trans-
World Maintenance Services, Inc., we shall order that
the Respondent offer those individuals immediate and
full employment, without prejudice to their seniority
and other rights previously enjoyed, discharging, if
necessary, any employees hired in their place. These
individuals shall be made whole by the Respondent for
any loss of earnings and benefits they may have suf-
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537AMI, INC.
6 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Employer’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
fered because of the Respondent’s unlawful refusal to
hire them. The backpay period for all discriminatees
shall commence on April 15, 1994. Backpay shall be
computed in accordance with F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
Having found that the Respondent unlawfully re-
fused to recognize and bargain collectively with both
the Window Cleaners Union, Local No. 2, and with
Air Transport Local 504, we shall order that the Re-
spondent recognize and, on request, bargain collec-
tively with both Unions with respect to the employees
in the appropriate units, and, if agreement is reached,
reduce the agreement to a written contract. Addition-
ally, as to both units, the Respondent shall be ordered,
on request by the Unions, to rescind any changes made
in the terms and conditions of employment that existed
immediately before the Respondent’s takeover from
TransWorld Maintenance, Inc., and to retroactively re-
store preexisting terms and conditions of employment,
including wage rates and benefits that would have
been paid absent such unilateral changes from April
15, 1994, until the Respondent negotiates in good faith
with Local 2 and Local 504 to agreement or to im-
passe or the Unions fail to bargain in good faith. The
remission of wages shall be computed in the manner
set forth in Ogle Protection Service, 183 NLRB 682
(1970), enfd. 444 F.2d 502 (6th Cir 1971), plus interest
as prescribed in New Horizons for the Retarded, supra.
The Respondent shall also remit any payments it owes
to any employee benefit funds and reimburse its em-
ployees for any expenses resulting from the failure to
make these payments in the manner set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981).6 Any
amounts that the Respondent must pay into the benefit
funds shall be determined in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979).
ORDER
The National Labor Relations Board orders that the
Respondent, Airway Maintenance, Inc. d/b/a AMI,
New York, New York, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with Window Cleaners Union, Local 2, Service Em-
ployees International Union, AFL–CIO as the exclu-
sive collective-bargaining representative of its employ-
ees in the following appropriate unit:
All window cleaners employed by Respondent at
the Delta Airlines facilities at JFK Airport, ex-
cluding all other employees, guards and super-
visors within the meaning of the Act.
(b) Refusing to recognize and bargain collectively
with Air Transport Local 504, Transport Workers
Union of America, AFL-CIO as the exclusive collec-
tive-bargaining representative of its employees in the
following appropriate unit:
All cleaners employed by Respondent at the Delta
Airlines facilities at JFK Airport excluding all
window cleaners, guards and supervisors within
the meaning of the Act.
(c) Unilaterally changing wages, hours, pension and
welfare contributions, or any other terms and condi-
tions of employment of its employees in either of the
above units, without notifying and bargaining with
Local 2 and Local 504 in their respective units.
(d) Refusing to hire, discharging, or otherwise dis-
criminating against employees because of their mem-
bership in either Local 2 or Local 504 or to avoid rec-
ognizing and bargaining with either Local 2 or Local
504.
(e) In any like or related 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 necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively
with Local 2 and Local 504 as the exclusive represent-
atives of its respective employees in the above-de-
scribed units, with respect to rates of pay, wages,
hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed
contract.
(b) Rescind, on request by the Unions, any depar-
tures from terms and conditions of employment that
existed immediately before its takeover from Trans-
World Maintenance Services, Inc., and retroactively re-
store preexisting terms and conditions of employment,
including wage rates and benefit plans, and make these
employees whole by remitting all wages and benefits
that would have been paid absent such unilateral
changes from April 15, 1994, until it negotiates with
Local 2 and Local 504 respectively to agreement or to
impasse, in the manner set forth in the amended rem-
edy section of this decision.
(c) Offer to unit employees formerly employed by
TransWorld Maintenance Services, Inc. immediate and
full employment, without prejudice to their seniority
and other rights or privileges previously enjoyed, dis-
charging if necessary any employees hired in their
place.
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538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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
National 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.’’
(d) Make whole all the unit employees formerly em-
ployed by TransWorld Maintenance Services, Inc. for
any loss of earnings and benefits they may have suf-
fered by reason of the Respondent’s discrimination
against them, as described in the amended remedy sec-
tion of this decision.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, 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 JFK facility, New York, New York,
copies of the attached notice in English, Spanish, Pol-
ish, and Creole marked ‘‘Appendix.’’7 Copies of the
notice, on forms provided by the Regional Director for
Region 29, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, 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 Re-
spondent has 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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain col-
lectively with Window Cleaners Union, Local No. 2,
Service Employees International Union, AFL–CIO as
the exclusive collective-bargaining representative of
our employees in the following appropriate unit:
All window cleaners employed by us at the Delta
Airlines facilities at JFK Airport, excluding all
other employees, guards and supervisors within
the meaning of the Act.
WE WILL NOT refuse to recognize and bargain col-
lectively with Air Transport Local 504, Transport
Workers Union of America, AFL–CIO as the exclusive
collective-bargaining representative of our employees
in the following appropriate unit:
All cleaners employed by us at the Delta Airlines
facilities at JFK Airport, excluding all window
cleaners, guards and supervisors within the mean-
ing of the Act.
WE WILL NOT unilaterally change wages, hours, pen-
sion and welfare contributions, or any other terms and
conditions of employment of our employees in either
of the above units, without notifying and bargaining
with Local 2 and Local 504.
WE WILL NOT refuse to hire, discharge, or otherwise
discriminate against any employees because of their
membership in either Local 2 or Local 504 or to avoid
recognizing and bargaining with either Local 2 or
Local 504.
WE WILL NOT in any like or related 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 collec-
tively with Local 2 and Local 504 as the exclusive rep-
resentatives of employees in the above-described units,
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed contract.
WE WILL on request by the Unions, rescind any de-
partures from terms and conditions of employment that
existed immediately before our takeover from Trans-
World Maintenance Services, Inc., retroactively restore
preexisting terms and conditions of employment, in-
cluding wage rates and benefit plans, and make the
employees whole by remitting all wages and benefits
that would have been paid absent such unilateral
changes from April 15, 1994, until we negotiate in
good faith with the Unions to agreement or to impasse,
plus interest.
WE WILL offer all former TransWorld Maintenance
Services, Inc. employees immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, discharging if necessary any
employees hired in their place.
WE WILL make whole all former TransWorld Main-
tenance Services, Inc. employees, including employee
Ricardo Barros, for any loss of earnings and benefits
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539AMI, INC.
1 The General Counsel’s motion to correct the transcript is granted.
It is added to G.C. Exh. 1 as 1(t).
they may have suffered by reason of our discrimination
against them, less any interim earnings, plus interest.
AIRWAY MAINTENANCE, INC. D/B/A
AMI
Sharon Chau, Esq., for the General Counsel.
Robert S. Nayberg, Esq. (Martin H. Scher), of Carle Place,
New York, for the Respondent.
Ira Sturm, Esq. (Manning, Raab, Dealy & Sturm), of New
York City, New York, for Window Cleaners Union, Local
No. 2, Service Employees International Union, AFL–CIO.
Richard Boehm, president of Air Transport Local 504, Trans-
port Workers Union of America, AFL–CIO.
DECISION
JAMES F. MORTON, Administrative Law Judge. The com-
plaint alleges that Airway Maintenance, Inc. d/b/a AMI (Re-
spondent) has engaged in unfair labor practices within the
meaning of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act). The Respondent is alleged to
be the successor to TransWorld Maintenance Services, Inc.,
as the cleaning contractor in Delta Airlines terminals at JFK
Airport in New York City and that it refused to hire, or to
consider for hire, about 150 TransWorld maintenance work-
ers because of their membership in Air Transport Local 504
(Local 504) and 2 TransWorld window cleaners because of
their membership in Window Cleaners Union, Local No. 2
(Local 2) and to have discharged 1 individual because of his
membership in Local 504. The complaint further alleges that,
but for those unlawful acts, Local 504 and Local 2 would
have been the representatives of those employees in their re-
spective collective-bargaining units; that the Respondent has
failed to recognize or bargain collectively with Local 2 or
Local 504; and that the Respondent, on the day that it took
over the cleaning contract from TransWorld, unilaterally
changed hours of work and other terms and conditions of
employment as they existed under the collective-bargaining
agreements TransWorld had with Local 2 and Local 504 cov-
ering the individuals alleged to have been discriminated
against by the Respondent. The answer filed by the Respond-
ent places those allegations in issue.
I heard this case in Brooklyn, New York, on November
28–30 and on December 1, 1994. On the entire record,1 in-
cluding my observation of the demeanor of the witnesses,
and after considering the briefs filed by the General Counsel
and the Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION—LABOR ORGANIZATIONS
The Respondent provides cleaning and maintenance serv-
ices on a nonretail basis. In its operations annually, it meets
the Board’s standard for asserting jurisdiction. The answer
admits that Local 2 and Local 504 are labor organizations as
defined in the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Delta Airlines has two terminals at a cargo area at JFK
Airport in New York. Since about 1989 to April 15, 1994,
when its contract with Delta Airlines expired, TransWorld
cleaned those facilities, employing about 150 employees rep-
resented by Local 504 and 2 window cleaners represented by
Local 2. TransWorld also has about 12 employees at Tower
Air and Lufthansa facilities at JFK Airport who are rep-
resented by Local 504 under the same collective-bargaining
agreement which covered the employees at the Delta facili-
ties.
The Respondent replaced TransWorld as Delta’s cleaning
contractor at 10 p.m. on April 15, 1994, as discussed further
below. Except for one TransWorld employee who was hired
and discharged almost immediately and whose status as an
alleged discriminatee is discussed below, the Respondent
hired none of the TransWorld employees who worked at the
Delta facilities. The General Counsel contends that it failed
to hire those employees because of their union membership.
The Respondent asserts that it hired a new crew for the Delta
facilities based solely on its policy of employing applicants
who are referred to it by its supervisors or its employees and
that, as none of the TransWorld (employees) were so re-
ferred, none were hired.
All dates here are for the year 1994, unless stated dif-
ferently.
B. The Respondent’s Staffing at the Terminals of Delta
Airlines and Applications by TransWorld Employees
ln January, approximately 15 cleaning contractors, includ-
ing TransWorld, submitted bids to Delta to clean its facilities
at JFK on the termination of TransWorld’s contract which
was scheduled to expire on April 15. On about April 1, the
Respondent was awarded the contract by Delta. Thereupon,
the president of Local 504 placed calls repeatedly to the Re-
spondent’s office, asking to speak to its official ‘‘to negotiate
. . . to keep the people employed and have some job secu-
rity.’’ He received no response. Local 2’s business agent,
also in early April, called the Respondent’s office, leaving a
message that Local 2 was ready to negotiate a contract for
the two window cleaners of TransWorld. He made about six
such calls in that week; no one from the Respondent called
back. On April 7, he visited the Respondent’s office and
spoke with an individual whom he understood to be its man-
ager doing the hiring. He was asked to wait. He waited but
was then informed that the Respondent was too busy see
him. No one from the Respondent’s office spoke with him
after that.
The Respondent offered the following testimony in support
of its assertion that it followed a nondiscriminatory referral
policy in staffing its employee complement at the Delta fa-
cilities. One of its office employees testified that the Re-
spondent’s management, at a meeting in mid-March, decided
to recruit applicants for the cleaning jobs at Delta’s facilities
in anticipation of the Respondent being awarded the contract
there and that, at this meeting, its management ‘‘started ask-
ing some of [its] supervisors if they know of anybody look-
ing for particular work that they could recommend.’’ No
management official testified as to such a meeting. Many of
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540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the applications submitted by individuals who were hired by
the Respondent for work at the Delta facilities have nothing
on them to indicate that the applicants were referred by su-
pervisors or employees of the Respondent and there is no
evidence otherwise from which I could find that they were
hired after being referred in accordance with a referral pol-
icy, as the Respondent asserts.
The Respondent did hire Donald Matera who was
TransWorld’s director of aviation services in charge of
TransWorld’s crew at the Delta Airlines facilities at JFK Air-
port on a daily basis, right up until 10 p.m. on April 15. At
that point, Matera took over as the Respondent’s general
manager in charge of its cleaning crew at those same facili-
ties. Matera hired none of the TransWorld’s employees, other
than one office employee who was not in either the Local
2 or Local 504 bargaining units and two supervisors who had
worked for TransWorld at a facility operated by an airline
other than Delta Airlines. Matera sought to recruit, for em-
ployment by the Respondent at the Delta terminals, several
employees working for TransWorld at other airline terminals;
he never recruited among the TransWorld cleaning employ-
ees who worked at the Delta terminals notwithstanding his
testimony that the Respondent sought to have a cohesive
group of employees with a ‘‘common bond.’’
One of the Respondent’s supervisors, Carmelo Rodriguez,
was asked several clearly leading questions during his direct
examination by the Respondent in an effort to show that it
had an established hiring policy via referrals by supervisors.
Rodriguez, however, related that he did not recall being told
by anyone to recruit people for work at the Delta terminals.
The evidence is obviously insufficient to establish that the
Respondent had a policy whereby it hired job applicants
based on supervisory recommendations or on recommenda-
tions of its employees.
The General Counsel called 11 employees who worked for
TransWorld at the Delta Airlines facilities to testify as to
their efforts, and those of others who had worked with them
at TransWorld, to work for the Respondent there. Seven
(Sylvia Saucedo, Chester Apanel, Doris Rengifo, Maria
Munoz, Joseph Clemont, Inez Louisfilis, and Nicola
Rusovan) testified that they applied before they were laid off
on April 15. Some of these seven were told by the person
who gave them the application forms or by others in the Re-
spondent’s employ that they would be called to work but
they were not. Rengifo and Munoz had also filled out ID
forms, had their pictures taken by the Respondent, and were
told that they would be called to start work on April 16, but
they were not called. Clemont and Louisfilis were told by
Matera on April 15 to report to work for the Respondent a
week later and that they would be paid $6 an hour, an in-
crease over the rate they were earning at TransWorld. Sev-
eral days later, Matera informed them that there was no work
for them. Another of the 11 who testified for the General
Counsel, namely Carmen Pena, related that he applied to the
Respondent before April 15 after he had earlier testified that
he made that application after his layoff on April 15. His tes-
timony appears confused and I discount it. I credit the ac-
counts given by the seven named above.
Two of the seven named in the preceding paragraph,
Munoz and Rusovan, testified that they applied again, after
their layoff from TransWorld. Two others, Luz Maria
Henriguez and Jose Santos, also testifed that they applied to
the Respondent on their layoff by TransWorld. Another
former TransWorld employee, Carmen Peria, testified as to
his applying to Respondent after his layoff but I do not ac-
cept his account for the reason stated in the paragraph above.
l do credit the accounts given by Rusovan, Henriguez,
Santos, and Munoz. The first three of these four were told
by a female working as a clerical employee for the Respond-
ent that they could not be given application forms because
they had worked for TransWorld. The Respondent, having
placed that individual in that capacity, effectively made her
its agent. See Diehl Equipment Co., 297 NLRB 504 fn. 2
(1989). The person who communicated this same information
to Munoz was Matera, the Respondent’s general manager.
Ricardo Barros is the remaining former TransWorld em-
ployee who testified for the General Counsel. He is alleged
in the complaint as having been discharged by the Respond-
ent because of his membership in Local 504. He testified in
substance as follows. On April 4, he applied at the Respond-
ent’s office and was told by an individual named Carmello,
who identified himself as a supervisor, that he would be
called to work when TransWorld’s contract expired.
Carmello did call and told him to report for work at 9 p.m.
Shortly after he reported, Matera saw him and asked what
he was doing there. Carmello translated the conversation. He,
Barros, told Matera that he was there to work. Matera told
him that he had to leave as the Respondent did not want any
TransWorld employees working for it.
Carmello Rodriguez testified for the Respondent that he is
a supervisor and that he heard Matera asking an employee
what he was doing there and that he was not supposed to
be there. Matera’s account is that, when he saw Barros at
about 9:30 p.m., he told Barros that he could not work for
the Respondent. Matera testified that he could not recall who
translated the conversation. Matera denied that he mentioned
anything about a union to Barros and denied telling anyone
that the Respondent would not employ individuals who had
worked for TransWorld.
Matera testified that the reason he told Barros to leave was
that he had suspected Barros of having made unauthorized
telephone calls to Colombia from an office in the Delta Air-
lines terminal when both were in TransWorld’s employ.
Matera had conducted an investigation of a complaint that
unauthorized calls to Colombia had been made. He reported
to the chairman of TransWorld on November 24, 1993, in es-
sence, that there was no evidence of telephone misuse by any
employee of TransWorld and that he strongly believes that
the calls were made by another party.
Matera testified that he really believed otherwise but made
that report to support TransWorld in responding to the com-
plaint. Matera testified that he gave Barros an oral warning
in November 1993 for telephone misuse. Barros testified that
he had never received any type of disciplinary warning while
in TransWorld’s employ. Barros worked steadily for Trans-
World until April, when TransWorld’s contract expired.
I credit Barros’ account. The reason given by Matera for
discharging Barros is controverted by the substance of the re-
port prepared by Matera himself; his attempt to discount that
report does little to engender confidence in his account.
Moreover, Rodriguez impressed me as one who was not at
all anxious to remember the events surounding Barros’ hiring
and discharge. The credited testimony discloses, and I so
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541AMI, INC.
find, that Barros was discharged because he was represented
by Local 504 while in TransWorld’s employ.
The credited evidence also shows that the Respondent had
adopted and pursued a plan barring TransWorld employees
represented by Local 2 or Local 504 from its employ, a plan
which thereby would relieve it of having to bargain collec-
tively with those unions. To that end, the Respondent en-
gaged in the conduct recounted above towards TransWorld
employees who applied to it for jobs, willfully ignored re-
peated efforts of officials of those unions to speak with it
about hiring the employees of TransWorld at the Delta Air-
lines facilities, unlawfully discharged the one TransWorld
employee who somehow slipped through its net, hired in-
stead a crew which was to no small extent inexperienced,
concocted an explanation therefor which had no factual basis
to sustain it, and offered no explanation as to why Matera
never sought to hire any of the TransWorld employees who
worked at the Delta terminals, notwithstanding that he had
supervised these very employees.
In Love’s Barbeque Restaurant No. 62, 245 NLRB 78
(1979), the Board reviewed a factual situation closely
analagous to the one before me now and found that the re-
spondent there, by having failed to hire the employees em-
ployed in the restaurant that respondent took over because of
their union representation, unlawfully discriminated against
those employees. I thus find that the Respondent has failed
and refused to employ the former TransWorld employees to
the Delta Airlines facilities at JFK Airport because they are
members of Local 2 and Local 504.
The complaint alleges that the Respondent has unlawfully
refused to recognize and bargain collectively with Local 2
and Local 504. The Respondent asserts, respecting that alle-
gation, that the units represented by Local 2 and Local 504
are not appropriate for bargaining inasmuch as it employs
cleaning employees at other locations. The employees work-
ing for the Respondent at the Delta Airlines facilities at JFK
Airport are functionally distinct inasmuch as they are there
by reason of Delta’s contract with the Respondent. There is
no evidence of any significant employee interchange between
those employees and other employees of the Respondent.
The employees of the Respondent at the Delta Airlines facili-
ties at JFK Airport clearly have a close community of inter-
ests and function as a cohesive unit, analogous to employees
in a single plant unit, a presumptively appropriate unit. See
Esco Corp., 298 NLRB 837, 839 (1990). The Respondent
has proferred no evidence to rebut that presumption. I thus
find that the Respondent’s employees at the Delta Airlines
facilities are, for purpose of collective bargaining, not part of
a larger group, as the Respondent contends.
The evidence is clear that, but for the Respondent’s unlaw-
ful refusal to hire the TransWorld employees who worked at
the Delta Airlines facilities, they would have constituted an
overwhelming majority, if not all of the Respondent’s em-
ployees there and that thus, Local 2 and Local 504 would
have continued to be their collective-bargaining representa-
tives, in their respective units. The evidence is undisputed
that the representatives of Local 2 and Local 504 had sought
unsuccessfully to negotiate with the Respondent for those
employees. In Love’s Barbeque Restaurant, supra, the Board
further had found that the respondent there, in essentially the
same circumstances as in this case, was obliged, as a succes-
sor employer to recognize the union which represented its
predecessor’s employees. To the same effect, see Weco
Cleaning Specialists, 310 NLRB 319–320 (1992); cf. Lamay
Caring Center, 280 NLRB 60, 72–73 (1986). The Board also
found, in Love’s, that that respondent had, by departing from
the rates of pay and benefits and other conditions of employ-
ment, as they existed when those employees were employed
by its predecessor, further violated its duty to bargain collec-
tively. The holding in that case is now well-settled law. See
Harvard Industries, 294 NLRB 1102, 1111 (1989). I thus
find that the Respondent, in derogation of its obligations
under Section 8(d) of the Act, failed and refused to recognize
and bargain collectively with Local 2 and Local 504 as the
representatives, respectively, of the units of window cleaners
and the unit of porter and other cleaning and maintenance
employees at the Delta Airlines facilities involved in this
case.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section (2), (6), and (7) of the Act.
2. Local 2 and Local 504 are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act by
having failed and refused to hire the employees employed by
its predecessor, TransWorld, because they were represented
by Local 2 and Local 504 in separate units for collective bar-
gaining, respectively, one composed of two window cleaners
and the other of porters and other cleaning and maintenance
employees, and by having discharged its employee, Ricardo
Barros, because he was a member of Local 504.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act by
having refused and failed to recognize Local 2 and Local 504
as the bargaining agents respectively of the units referred to
above in paragraph 3 and by having unilaterally changed the
wages, hours of work, and other terms and conditions of em-
ployment of those employees.
5. These unfair labor practices in affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices, I recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
The Respondent should be ordered to offer full and imme-
diate employment at the Delta Airlines facilities at JFK Air-
port to the employees employed there as window cleaners
and as maintenance and general cleaning employees of
TransWorld Maintenance Services, Inc., as of April 15, 1994,
dismissing, if necessary, any individuals employed in those
jobs and, if any of those jobs no longer exist, to substantially
equivalent jobs, without prejudice to their seniority or other
rights and privileges previously enjoyed, and make them
whole for any loss of earnings that they may have suffered
due to the discrimination against them, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]
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