COUNTY AGENCY INC., AND ESPLANADE PARTNERS LTD. d/b/a ESPLANADE VENTURE PARTNERSHIP d/b/a THE ESPLAN

National Labor Relations Board - Administrative Judge Opinions

Feb 7, 2019

02-CA-188405 (N.L.R.B. Feb. 7, 2019)

JD(NY)-03-19
New York, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
COUNTY AGENCY INC., AND ESPLANADE Cases 02-CA-188405
PARTNERS LTD. d/b/a ESPLANADE VENTURE
PARTNERSHIP d/b/a THE ESPLANADE HOTEL,
Joint Employers
and
305 WEST END HOLLING, LLC d/b/a 02-CA-189863
305 WEST END AVENUE OPERATING, LLC 02-CA-195031
AND ULTIMATE CARE MANAGEMENT
ASSITED LIVING MANAGEMENT, LLC, A
DIVISION OF THE ENGEL BURMAN GROUP
d/b/a ULTIMATE CARE MANAGEMENT, LLC
Joint Employers
And
UNITED FOOD & COMMERCIAL WORKERS
UNION, LOCAL 2013
Zachary E. Herlands, Esq. and Jacob Frisch, Esq.,
for the General Counsel.
Paul Wagner, Esq., Arch Stokes, Esq., and Anne-Marie Mizel, Esq.,
(Stokes Wagner), for the Respondents.
Robert F. O’Brien, Esq. and W. Daniel Freehan, Esq.,
(O’Brien, Belland & Bushinsky) for the Charging Party.
DECISION
BENJAMIN W. GREEN, Administrative Law Judge. This case was tried before me in New
York, New York on March 19, 20, April 4, 18, 19, May 30, and 31, 2018. The General Counsel
contends that Respondents County Agency, Inc. (County) and Esplanade Partners Ltd. d/b/a
Esplanade Venture Partnership d/b/a The Esplanade Hotel (Esplanade), as joint employers,1
violated Section 8(a)(5) and (1) of the Act by failing to furnish requested information regarding
the sale of their facility2 to the United Food & Commercial Workers Union, Local 2013 (Union).

1 References herein to “Respondents Esplanade” include Respondent County, while references to
“Respondent Esplanade” do not.
2 The facility at issue is the Esplanade Hotel, a residential building located at 305 West End
Avenue, New York, NY 10023.
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JD(NY)-03-19
2
The General Counsel also contends that Respondent 305 West End Holding, LLC d/b/a 305
West End Avenue Operating, LLC (West End) and Respondent Ultimate Care Management
Assisted Living Management, LLC, a Division of the Engel Burman Group d/b/a Ultimate Care
Management, LLC (Ultimate), as joint employers3 and the successor of Respondents
Esplanade, violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with 5
the incumbent Union as the representative of the predecessor’s unit employees. Finally, the
General Counsel contends that Respondents West End violated Section 8(a)(3) and (1) of the
Act by discriminatorily refusing to hire 15 of the predecessor’s employees.4
The Respondents, except Respondent Ultimate, filed answers to the complaint denying 10
the substantive allegations.5 Respondent Esplanade admits in its answer that it owned and
operated an assisted living facility located 305 West End Avenue, New York, New York. In its
post-hearing brief, Respondent West End states that the “property was owned by the Scharf
family, and was operated for a long time by Solomon Scharf, and thereafter by his son
Alexander, known as ‘Ali.”6 (Resp. Brf. p. 5) Respondent County Agency admits in its answer15
that it is in the business of providing professional employer organizational services, including the
provision of personnel, payroll, and other human resources functions to customers. In its post-
hearing brief, Respondent West End states that Respondent County was “a company under
contract with (Respondent) Esplanade to supply workers.” (Resp. Brf. p. 5)
20
As discussed below, I find that Respondents Esplanade, as joint employers, violated the
Act by failing to provide the Union with requested information. I also find that Respondents
West End, as joint employers and successors of Respondents Esplanade, unlawfully refused to
bargain with the Union as the representative of the predecessor’s unit employees. Lastly,
among the merit allegations, I find that Respondents West End unlawfully refused to hire Union 25
shop steward Trinidad Hardy because of her union position and/or activity. However, I do not
find, and herein dismiss, the allegation that Respondents West End violated the Act by refusing
to hire 14 other employees in a failed attempt to avoid successorship.
On the entire record, including my observation of the demeanor of the witnesses, and 30
after considering the post-hearing briefs filed by the General Counsel, the Union, and
Respondent West End,7 I make these

3 References herein to “Respondents West End” include Respondent Ultimate, while references to
“Respondent West End” do not.
4 The complaint originally plead a refusal-to-hire 16 employees, but the General Counsel has
withdrawn, with my approval, the allegation pertaining to Harpal Sudeshkumar.
5 Toward the end of the trial, the General Counsel moved to include Respondent Ultimate as a joint
employer of Respondent West End. I granted this motion and an amendment to the complaint was
entered into evidence. Respondent Ultimate did not file an answer to the amended complaint, but
Respondent West End did and denied it was a joint employer with Respondent Ultimate.
6 References herein to Scharf refer to Alexander, not Solomon.
7 Until March 23, 2018 (day 3 of the trial), the law firm of Stokes Wagner represented Respondent
Esplanade and Respondent West End. Respondent County did not appear at the trial. On March 23,
2018, Stokes Wagner indicated that it might not be able to continue representing Respondent Esplanade
because of a potential conflict caused by a pending criminal indictment of Scharf. The next day, Stokes
Wagner withdrew as Respondent Esplanade’s counsel and continued only as counsel for Respondent
West End. Respondent Esplanade did not appear during the remainder of the trial through independent
counsel or otherwise. Respondent West End was the only respondent that filed a post-hearing brief.
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FINDINGS OF FACT8
I. LABOR ORGANIZATION STATUS AND JURISDICTION5
In their answers to the complaint, Respondents Esplanade and Respondent West End
denied sufficient knowledge to admit or deny the status of the Union as a labor organization
within the meaning of Section 2(5) of the Act. The Union negotiated and was party to a
collective-bargaining agreement covering a unit of employees employed at the Esplanade Hotel10
until that facility was sold on December 5, 2016.9 The Union filed at least one grievance under
the contract (which settled) and requested the information at issue in this case. The Union also
contacted Respondent West End in an attempt to have that company assume the collective-
bargaining agreement or at least bargain with the Union as the representative of the unit.
Accordingly, I find that the Union is a labor organization within the meaning of Section 2(5) of 15
the Act. See Image Systems, 285 NLRB 370, 374 (1987).
None of the Respondents deny commerce information or employer status as plead in the
complaint as a basis for jurisdiction. At all material times, the Respondents have been
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 20
Based on the foregoing, I find that this dispute affects commerce and that the Board has
jurisdiction pursuant to Section 10(a) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES1025
The Operation of the Esplanade Hotel Prior to the Sale on December 5
Respondent Esplanade owned and operated the Esplanade Hotel as a senior
independent living residence which provided certain nonmedical services. Those services 30
included three meals a day (in the dining room or delivered to the resident’s apartment); front
desk concierge services such as greeting people entering the building, announcing visitors,

8 My factual findings are based upon a review and consideration of the entire record of this case.
Testimony contrary to my findings has been discredited. Credibility findings need not be all-or-nothing
propositions and, indeed, it is common in judicial proceedings to believe some, but not all, of a witness’s
testimony. Daikichi Sushi, 335 NLRB 622 (2001). A credibility determination may rely on a variety of
factors, including the context of the testimony, the witness’s demeanor, the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable inferences that may be
drawn from the record as a whole. Double D Construction Group, 339 NLRB 303, 305 (2003); Daikichi
Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive Dealership Group, 321 10 NLRB 586, 589
(1996)), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003).
9 All dates refer to 2016, unless stated otherwise.
10 The General Counsel, in its brief, refers to the failure of Respondent West End to produce certain
subpoenaed documents and failure to produce other subpoenaed documents in a timely manner at the
start of the hearing. However, the General Counsel has not asked for inferences or the suppression of
evidence that, in my opinion, would be dispositive of any of my findings herein. More concerning to me is
Respondent West End’s apparent failure to provide the General Counsel with a privilege log after
representing at trial that it would. However, the General Counsel never submitted a motion regarding this
issue and has not asked for a specific remedy. Accordingly, I do not address the matter further herein.
JD(NY)-03-19
4
handling mail, answering phones, and fielding complaints; housekeeping with towel, linen, and
paper replacement; activities and entertainment (e.g., singers, poetry, bingo, exercise classes);
and a beauty parlor.
Respondent Esplanade was owned by the Scharf family. Marcy Levitt was the executive 5
director and Eli Singer was the controller. Additional managers and supervisors included
recreation director Leslie Brown, housekeeping director Alexander Francisca, maintenance
engineering director Dzevat Bicic, customer service director Albert Etienne, and marketing
director Ruth O’Connell.
10
The Union represented a unit of employees who were employed at the Esplanade Hotel
and the most recent collective-bargaining agreement was effective February 1, 2015 to January
31, 2018. The Union entered into this contract with “County Agency Inc., located at 129 South
Eighth Street, Brooklyn, NY 11211, for the employees employed at The Esplanade Hotel
located at 305 West End Avenue, New York, New York 10023, hereinafter referred to as the 15
‘Employer’.” (R Exh. 1) Levitt testified that “we all worked for (Respondent) County.” (Tr. 202)
The contract was signed by Scharf as “partner” under a line identifying him as a representative
of “County Agency Esplanade.”
The recognition provision of the contract describes the unit as follows (R Exh. 1):20
{A]ll of its full-time and part-time employees, with respect to wages, hours and
conditions of employment, excluding executives, supervisors and guards as
defined in the Labor Management Relations Act as amended, and agrees to deal
collectively only with this Union for and on behalf of such employees. Full-time 25
employees are employees employed on a steady basis. Part-time employees
who are call in employees and work as needed.
Although the contract describes a wall-to-wall unit, Union director of collective-bargaining
Eugene Hickey testified that he did not know recreation employees were employed at the facility 30
and, therefore, never considered them to be included in the bargaining unit.11
The collective-bargaining agreement was a comprehensive contract. The contract
included a union security clause requiring Union membership in good standing as a condition of
employment. The contract also included provisions that dictated the terms and conditions of 35
employment of unit employees, including wages, leave, health benefits, layoffs, discharges,
suspensions, and subcontracting. Further, the contract included the following provision in
Article 31 regarding successors and assigns (R Exh. 1):
Section 1. This agreement shall be binding upon the parties hereto, their 40
successors, administrators, executors, and assigns and shall survive a change of
name, of location or place of business or re- organization. In the event the entire
operation or any part thereof is sold, leased, transferred or taken over by the
sale, transfer, lease, assignment, receivership or bankruptcy proceedings, such
operation shall continue to be subject to the terms and conditions of this 45
agreement for the life thereof. It is understood by this Section that the parties

11 Throughout the trial, Respondent West End’s counsel took the position, in agreement with the
Union, that recreation employees at the Esplanade Hotel were not historically included in the unit. In its
brief, Respondent West End confirmed that “recreation employees . . . were not represented by the Union
. . . .). Resp. Brf. p. 7. I find the unit, excluding recreation employees, to be appropriate.
JD(NY)-03-19
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hereto shall not use any leasing device to a third party to evade this agreement.
The Employer shall give notice to the existence of this agreement to any
purchaser, transferee, assignee or lessee of the operation of this agreement or
any part thereof. Such notice shall be in writing with a copy to the Union not later
than thirty (30) days prior to sale. 5
Section 2. The Employer shall not have the right to assign this agreement or
in any other manner to transfer the rights and obligations thereof to any other
party, unless and until the purchaser, transferee, assignee or lessee shall first
have assumed and accepted, in writing, all the terms and conditions of this 10
agreement. Employees working under this agreement shall at all times be
entitled, acting through the Union as their representative, to hold the Employer
directly responsible for the full performance of all terms and conditions of this
agreement.
15
The contract was negotiated by Scharf and Singer on behalf of the employer. The Union
negotiators were Hickey, Hardy (a front desk concierge employee), and Union representative
Idania Baldoquin.
In August 2015, the parties settled a grievance pertaining to the paid leave of unit 20
employees under articles 4-6 of the collective-bargaining agreement. An internal email from
Singer regarding this settlement stated, in part, that the “settlement offered herein [by the Union]
is agreeable to the Esplanade and County Agency.” (GC Exh. 42) Singer’s email identified him
as the controller of “Esplanade Senior Residences.”
25
The contract, in Article 7, provided for all non-probationary employees to receive wage
increases of $0.40 per hour on February 1, 2015 and February 1, 2016, and a $0.50 per hour
wage increase on February 1, 2017. Article 3 of the contract provided for premium pay for
overtime and hours worked on holidays. Respondent County’s 2016 payroll records reflect that
unit employees received pay increases and premium pay consistent with the contract.30
The contract also provided, in Article 11, for employees to receive health benefits
through a Union welfare fund. Under Article 11, employees paid nothing toward single
coverage, but 100% (above the cost of single coverage) for a family or plus one plan.12
Accordingly, as one might expect, prior to the sale, payroll records for the vast majority of 35
Esplanade Hotel employees show no deductions for medical benefits.
The General Counsel called employee witnesses who testified that they understood their
employer to be Respondent Esplanade (not Respondent County) and Respondent County to be
the payroll company that issued paychecks. Front desk employee Dawn Capelli testified that 40
she has been employed at the Esplanade Hotel since 2014 and understood the facility to be
owned by the Scharf family. During Capelli’s employment, she never met anyone she

12 Respondent West End called and questioned employees Norman Campbell, William Londea, and
Charlene Grant regarding their health benefits. Campbell testified that he received health care coverage
through Respondent Esplanade. Londea testified he was offered coverage, but declined it because he
was covered under a separate plan. Grant testified she never applied for health coverage. Thus, the
employees did not effectively testify that they were denied health benefits under the contract. Further, the
employees would not necessarily know whether their employer made welfare contributions on their
behalf.
JD(NY)-03-19
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understood to be employed by Respondent County. Server Michelle Bellemy testified that she
has been employed at the Esplanade Hotel for five years and only understood Respondent
County to be the payroll company that prepared employee paychecks. Deannie “Joy”
Duncanson13 testified that she was employed at the facility from 1994 to December 4, 2016 and
only knew Respondent County as the name on the paychecks. Like Capelli, neither Bellemy 5
nor Duncanson met anyone they understood to be employed by Respondent County.
According to Levitt, certain employees were considered “union” while other employees in
the same classifications were not. Levitt claimed that Singer kept a list of the employees who
were not represented by the Union. No such list was entered into evidence and Singer did not 10
testify. However, Levitt identified 10 employees she thought were not represented by the Union.
Levitt also testified that she exercised discretion in giving such nonunion employees annual
wage increases, which were inconsistent with and, in fact, higher than the contractual wage
increases received by unit employees. However, as noted above, 2016 payroll records reflect
that all employees received wage increases consistent with the contract.15
In support of the proposition that some unit employees were “nonunion,” Respondent
West End notes that certain employees did not have union dues deducted from their paychecks
(as reflected in the payroll records).
20
Duncanson testified that she was one of three “leads” in the kitchen (along with Mike
Whyte and Terrell Brannon). Certain employees testified that they understood Duncanson to be
the kitchen manager or supervisor. Bannon, in his resume, described himself as a supervisor.
Levitt testified that Duncanson was the director of food service and Whyte/Bannon were
supervisors. However, when asked whether Whyte reported to Duncanson, Levitt said they 25
“worked in conjunction with each other.” (Tr. 232) According to Levitt, Duncanson hired
employees, directed them to do tasks, and worked with her (Levitt) to create menus for
residents’ meals. Levitt testified that Duncanson, like other department heads, had authority to
discipline employees (but could not recall an instance when she did so). Levitt also testified that
Duncanson’s resume, which was submitted to Respondents West End, was generally accurate 30
in its description of her duties. Duncanson’s resume described her experience at the Esplanade
Hotel as follows (GC 21):
Esplanade Luxury Senior Residences, New York, NY January 2000-Present
Director of Food Services35
• Manage a staff of thirty and the general operations of the kitchen including
shift schedules and billing.
• Create a premium service experience for seniors.
• Responsible for the creating and executing four-cycle balanced menus.
• Manage kitchen inventory including the ordering of groceries, produce, 40
meats, and fish that meet Kosher standards.
Esplanade Luxury Senior Residences, New York, NY April 1998—December 1999
Dining Room/Kitchen Supervisor
• Recorded senior attendance at every meal.45
• Created schedules for servers, cooks, and utility.
• Ordered inventory including bread, ice cream, milk, and other beverages.

13 As discussed below, Duncanson’s job title is disputed.
JD(NY)-03-19
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Esplanade Luxury Senior Residences, New York, NY October 1994-March 1998
Server
• Served seniors by taking food orders while clearing and resetting dining room
when appropriate.
5
Duncanson claimed that she identified herself on her resume as the director of food
services because “that’s the position I was hoping to get with the new company.” (Tr. 140)
Duncanson denied she hired/fired employees or directed employees to do tasks. However,
Campbell, a server/assistant chef, credibly testified that he was interviewed by Duncanson,
merely introduced to Levitt the same day, and later notified by Duncanson that he was hired.10
Duncanson denied she scheduled employees or ordered inventory. According to
Duncanson, Whyte did the scheduling and Whyte/Brannon did the ordering. Duncanson
testified that she was only a lead to the extent she created menus with Levitt and “managed
kitchen inventory.” Otherwise, Duncanson claimed she spent her time cooking, waiting tables,15
and washing dishes.
When owned by the Scharf family, the Esplanade Hotel was not a licensed assisted
living facility regulated by the New York Department of Health (NY DOH). Medical personnel
were not employed at the facility and medical care was not administered to the residents. 20
The Sale of the Facility and the Hiring Process
In about June, Scharf told Hickey the facility was going to be sold. Hickey notified Union
counsel. On June 17, Union counsel emailed Scharf a proposal for a modified collective-25
bargaining agreement which identified “Northwind Group” as a successor employer. The Union
proposal provided for the successor to recognize the Union as the bargaining representative of
unit employees and abide by the terms of the contract. Union representatives later met with
Scharf, Ran Eliasaf (identified by Hickey as the prospective buyer), and their attorney to discuss
the proposed contract modification. The parties subsequently corresponded regarding the 30
matter, but never signed an agreement for the buyer to recognize the Union and/or assume the
contract. The sale was ultimately scheduled to close and take effect on December 5.
In about October, Respondent Ultimate designated regional executive director Faraz
Kayani as the manager who would lead the operational transition during the sale. 35
In October, flyers were distributed at the facility which notified employees that they could
interview for jobs with the new owner on October 27. Hardy notified Hickey of the flyers.
On October 26, Hickey visited the Esplanade Hotel. While there, Hickey held a meeting 40
with about 30-35 unit employees and advised them to apply for employment with the buyer. A
nonunit recreation employee attended the meeting and asked Hickey how recreation aides
could “get in the Union.” Hickey told the employee that recreation was not covered by the
collective-bargaining agreement. According to Hickey, he was unaware, until October 26, that
Respondents Esplanade employed recreation employees. Hickey did not consider whether the 45
recreation employees might be covered by the wall-to-wall unit description in the contract.
On October 27, Union counsel emailed Scharf a letter requesting the following
information (GC Exh. 9):
50
JD(NY)-03-19
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1. The identity of any purchaser or prospective purchaser including corporate
name and contact information;
2. A copy of any purchase and sale documents including, but not limited to,
Letters of Intent, Sales Agreements, Asset Purchase Agreements or 5
Acquisition Agreements between any purchaser or prospective purchaser
and Esplanade;
3. Any communications between Esplanade and any purchaser or prospective
purchaser relating to the existing Collective Bargaining Agreement with Local 10
2013;
4. Any other documents which refer or relate to the sale of Esplanade's
business assets or plans to convey such assets to 305 LLC or any other
entity; and15
5. Any communications or documents referring or relating to Esplanade’s
compliance with Article 31 the Parties’ Collective Bargaining Agreement.
Union counsel explained in this letter that the Union was aware of the pending sale 20
of Respondent Esplanade to Respondent West End and needed the information to monitor
compliance with the collective-bargaining agreement, particularly Article 31 regarding
successors and assigns.
On October 27, Union counsel also sent a letter to prospective buyers Eliasaf and 25
Jan Burman, which stated as follows (GC Exh. 10):
As you are aware, UFCW Local 2013 is the certified Collective Bargaining
representative of employees working for the Esplanade Hotel ("Esplanade") and
is party to a Collective Bargaining Agreement ("CBA") with that Company. We 30
have been advised that 305 West End Avenue Operating LLC ("305 LLC") is
acquiring the Esplanade and intends to operate the facility. We are in receipt of a
notice which states that 305 LLC is interviewing for positions at the Esplanade.
Please be advised that Local 2013 anticipates and expects that 305 LLC will
assume the existing CBA and retain all bargaining unit employees in their current 35
positions. All current employees want to continue their employment at the
Esplanade. Be advised that we will take all necessary actions to ensure the rights
of our members to their current positions.
On October 27, Respondents West End conducted interviews of Esplanade Hotel 40
employees who applied for continued employment. Baldoquin went to the facility that day.
While at the facility, Baldoquin approached a man who seemed to be in charge and asked
whether he was “aware that this is [a] union shop?” The man answered, “to his knowledge, this
wasn’t going to be a union shop and that they had to reapply.” (Tr. 327-329) Baldoquin did not
attempt to determine this man’s name and was not asked, at trial, to describe his appearance. 45
In addition to the interviews conducted on October 27, on November 18, Respondents
West End held a job fair at a Marriot hotel which was attended by employee applicants who
were, for whatever reason, not interviewed on October 27 and other applicants who were not
previously employed at the Esplanade Hotel. Although outside applicants were interviewed, 50
JD(NY)-03-19
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Kayani testified that Respondents West End wanted to retain as many Esplanade Hotel
employees as possible because current employees would require less training and it would be
costly and time consuming to replace them.
Erik Anderson, Respondent Ultimate’s vice present of human resources, helped 5
organize and coordinate the interview process. However, he only interviewed a few applicants
himself when the primary interviewers were occupied. The interviews were largely conducted
by regional managers of Respondent Ultimate, including Kayani; Susan Murphy, regional
director of dining services (front of the house dining as opposed to the kitchen); Paul Senken,
regional director of food and beverage services; Randy Tremble, vice president of food and 10
beverage services; Clement Walsh, regional director of housekeeping; Brian White, vice
president of environmental services; and Richard Youngberg, regional director of operations.
Applicants were generally interviewed by the manager who would be responsible for the
department in which the applicant was seeking a job. However, Kayani interviewed applicants
for all departments. Levitt was not involved in the hiring of employees. Some applicants were 15
interviewed more than once and some were interviewed by more than one manager at a time.
The interviews generally lasted anywhere from 5 to 15 minutes. However, Murphy
testified that she spent more time than that with the applicants.
20
According to Anderson, interviewers looked for applicants with “inner qualities” or “core
values,” which would allow the company to provide excellent customer service and succeed in a
“relationship business.” (Tr. 504) Thus, Respondents West End wanted employees with an
engaging personality and attitude, good work ethic, and a commitment to team work. Anderson
testified that an applicant’s skills and technical abilities were valued, but noted that such 25
skills/abilities could be taught. Anderson believed inner qualities and core values were more
difficult to teach and a priority in selecting employees. Moreover, Anderson testified that a
significant percentage of the staff of the Esplanade Hotel were unskilled employees (e.g.,
porters and housekeepers) who could be trained.
30
Tremble largely echoed Anderson’s testimony to the extent he believed personality and
attitude were most important for “front of the house” staff who are easily trained and have
regular interaction with residents. However, according Tremble, “back of the house” employees,
such as cooks, who do not have as much contact with residents and are more skilled, need to
demonstrate experience and skill before being hired. Similarly, White testified that maintenance 35
engineers need to come with prior knowledge, skills, and experience.
Respondents West End was not given access by Respondents Esplanade to employee
personnel files. Tremble noted that interviewers do not normally have access to personnel files
when hiring employees in situations that do not involve the sale of a business. Tremble further 40
testified that employees were being interviewed “without prejudice.” Senken testified that he did
not believe personnel files would be especially helpful as documents contained therein largely
reflect the subjective opinions of supervisors.
Upon cross-examination by Union counsel, Anderson testified that he did not know 45
whether the interviewers checked references of newly hired employees who had not previously
worked at the Esplanade Hotel. Anderson testified that, ideally in a normal situation, it is good
practice to check the references of applicants if time allows. Anderson asserted, however, that
references are rarely reliable and this was not a normal situation. Other than Anderson, none of
the managers who conducted interviews were examined about whether they checked applicant 50
references.
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According to Anderson, interviewers had no prior experience conducting interviews in a
union environment. Therefore, he included the following directive among instructions to
interviewers in advance of the interviews (R Exh. 24):
5
• All interviewing must be done without ANY regard whatsoever to any individuals’
union or non-union status.
• There must be no discussion in any manner of “union” topics.
Respondent Ultimate’s human resource department provided the interview team with 10
“Applicant Evaluation” forms. These applicant evaluations contained a rating matrix with a list of
categories for job qualifications, and boxes next to each category to be checked with a rating of
poor, fair, average, good, or excellent. Interviewers testified that they only used the applicant
evaluations as a tool to the extent it was useful and did not necessarily complete the form for
every applicant. Tremble testified that it was typical to hire applicants with ratings of “average” 15
because “average is decent.” (Tr. 573)
Kayani testified that he did not need approval from anyone to hire an applicant as he
was the person who was ultimately responsible for hiring decisions. If Kayani “decided to hire
someone, there was no other discussion.” (Tr. 434) Kayani further testified that other 20
interviewers were also high ranking regional managers who largely had authority to hire
employees without approval. By contrast, Anderson testified that the interviewers made hiring
decisions which were reviewed by Respondent Ultimate vice president of operations Maryellen
McKeon. However, Anderson admitted that all the recommendations of the interview team were
approved by McKeon. 25
The New York Displaced Building Service Workers Protection Act (DBSWPA), N.Y.C.
Admin. Code § 22-505, requires covered employers to retain certain “building service
employees” (BSE) following the sale of a business. This city ordinance identifies BSEs as,
excluding supervisors, those who earn less than $35 per hour and are engaged in the care or 30
maintenance of a building. DBSWPA limits the ability of an employer to sever BSEs as follows:
2. Upon termination of a building service contract, any covered employer or the
successor building service contractor, whichever person intends to furnish
substantially similar building services to those that were provided under the 35
terminated building service contract, shall retain those building service
employees employed at the buildings covered by the terminated contract for a
90-day transition employment period.
3. If at any time the covered employer or successor building service contractor, 40
whichever person intends to furnish substantially similar building services to
those that were provided under the terminated building service contract,
determines that fewer building service employees are required to perform
building services at the affected buildings than had been performing such
services by the former building service contractor, the covered employer or the 45
successor building service contractor shall retain the building service employees
by seniority within job classification; provided, that during the 90-day transition
period, the covered employer or successor building service contractor shall
maintain a preferential hiring list of those building service employees not retained
at the buildings who shall be given a right of first refusal to any jobs within their 50
classifications that become available during that period.
JD(NY)-03-19
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4. Except as provided in paragraph 3 of this subdivision, during the 90-day
transition period, the covered employer or successor building service contractor,
whichever person intends to furnish substantially similar building services to
those that were provided under the terminated building service contract, shall not 5
discharge without cause a building service employee retained pursuant to this
section.
5. At the end of the 90-day transition period, the covered employer or successor
building service contractor, whichever person intends to furnish substantially 10
similar building services to those that were provided under the terminated
building service contract, shall perform a written performance evaluation for each
building service employee retained pursuant to this section. If such employee’s
performance during such 90-day transition period is satisfactory, the covered
employer or successor building service contractor shall offer such employee 15
continued employment under the terms and conditions established by the
covered employer or successor building service contractor.
Respondents West End interpreted this ordinance to require the retention for 90 days of
certain BSEs employed at the Esplanade Hotel, including housekeepers, porters, laundry 20
assistants, and maintenance engineers. Walsh testified that he was responsible for hiring the
housekeepers and porters. According to Walsh, in December, he made determinations whether
to hire housekeepers and porters even though they had to be retained until March 5, 2017 as a
matter of law. Walsh claimed he did not know until after the interview process was over that
BSEs had to be retained for 90 days. However, Kayani testified that BSEs were identified 25
before December 5, and no determination was made in December whether to retain them
beyond the mandatory 90-day period. Rather, according to Kayani, BSEs were given the same
training and opportunity for continued employment as other employees and, like other
employees, Respondents West End preferred to retain them if possible instead of replacing
them. 30
Respondents West End has identified 15 predecessor employees who were retained in
what it understood to be BSE classifications (7 housekeepers, 3 porters, 1 laundry assistant, 4
maintenance assistants).
35
On December 2, McKeon sent an email to Respondent West End owner Steven Krieger
with an attachment purporting to list the names of 29 former employees who were not being
hired. Of those employees, 18 employees (16 kitchen and 2 front desk) were identified as non-
BSEs and 11 employees (7 housekeeping and 4 porters) were identified as BSEs. McKeon was
not called to testify at trial. 40
The following alleged discriminatees were not hired by Respondents West End:14
Last Name First Name Department Job Title15
Brannon Terrel Kitchen

14 Of these employees, Cabness and Roberts were not among the employees identified in McKeon’s
December 2 email as employees who would not be hired.
15 The record does not clearly indicate the job title of certain alleged discriminatees, including
Brannon (whose title is disputed).
JD(NY)-03-19
12
Cabness Anthony Kitchen Waitstaff Server
Colon Augstina Kitchen Waitstaff Server
Dalmage Davian Kitchen Waitstaff Server
Dejesus Dora Y. Kitchen
Duncanson Deannie Kitchen
Hardy Trinidad Front Desk Front Desk Concierge
James Lisa Kitchen Waitstaff Server
Jerome Henry Kitchen Waitsfaff Server
Joseph Lynda Kitchen
Mullen Virginia Front Desk Front Desk Concierge
Roberts Kimeyetta Kitchen
Smith Astley Kitchen Waitstaff Server
Terrier Laurent Kitchen Chef
Weber Denis Kitchen Waitstaff Server
Certain employees of Respondents Esplanade who were not hired by Respondents
West End, including Hardy, signed releases in exchange for monetary compensation. These
agreements indicate that the employee “release(s) County Agency. Inc. and Esplanade Venture
Partnership and their respective affiliates, successors and assigns, from all claims, whether 5
known or unknown, arising from or in connection with the . . . National Labor Relations Act;. . .”
The release agreements further state:
Nothing in this Release shall be construed so as to prohibit me from filing a charge
with, or participating in any investigation or proceeding conducted by a local, state, 10
or federal agency, including but not limited to the EEOC. This Release shall,
however, prohibit me from recovering any individual relief, compensation, or
damages in any such charge, complaint, or claim filed by anyone.
Youngberg interviewed front desk concierge employees, including Hardy. According to 15
Youngberg, Hardy “came in with a look of anger and disgust that we were even going through
this process. Just a body language, angry face.” (Tr. 756) Youngberg testified that Hardy was
not hired “because we are a business of attitude, customer service, professionalism, and if my
loved one was moving into one of our communities, I would truly want someone that would greet
me in a professional, positive attitude.” (Tr. 757) However, Youngberg completed an applicant 20
evaluation that graded Hardy as “excellent” (the highest grade) in the categories of “guest
service & hospitality personality” and “enthusiasm.”16 Youngberg admitted that these categories
would encompass customer service, and a rating of “excellent” in those categories would not
normally be consistent with someone who showed “anger and disgust” during the interview.
Youngberg offered no explanation for this discrepancy between his testimony and the applicant 25
evaluation he completed for Hardy.
Tremble interviewed Duncanson and decided not to hire her. According to Tremble, he
did not hire her because she was in charge of an area that appeared to be in particularly poor

16 Youngberg graded Hardy as “good” in all other categories except flexibility (which was rated
“average”). Youngberg did not explain why Hardy was only rated “average” in flexibility.
JD(NY)-03-19
13
condition. Tremble also noted that Duncanson did not have experience with formal dining.17
Tremble testified that Duncanson said during the interview she could do things other than
manage, but did not indicate she would accept a lower position than the one she currently held.
Other than Hardy and Duncanson, the alleged discriminatees largely received ratings on 5
their applicant evaluations of “average” or worse (to the extent an applicant evaluation was
completed and entered into evidence). Only three of the alleged discriminatees (Brannon,
Terrier, and Dejus) received ratings of “good” in any category. Brannon received ratings of
“good” in the categories of “appearance/presentation” and “communication skills,” but “poor” in
“enthusiasm” and “fair” in “team building.” His overall assessment was “fair.” Terrier received a 10
rating of “good” in “guest service & hospitality personality,” but was not graded in any other
category. Dora Dejesus received a rating of good in “enthusiasm,” but “poor” in “team building”
and “initiative.” Her overall rating was “fair.”
Server Barbarba Nichols, a server of Respondents Esplanade who was hired by 15
Respondents West End, received ratings of “average” in all categories.
Among the new employees who were hired even though they did not previously work at
the Esplanade Hotel, three were referenced in the General Counsel’s brief in connection with an
argument of disparate treatment: Cook Jose Cabrera, server Deandra Williams, and utility 20
aide/dishwasher Augustine Batista. On his applicant evaluation, Cabrera received ratings of
“good” in six categories. Two additional categories were checked “average,” but with an arrow
pointing toward the box for “good.” One category, “appearance/presentation,” was clearly
checked “average.” Williams received ratings of “good” in seven categories, and “average” in
two categories (“initiative” and “time management”). Batista received ratings of “average” in five 25
categories, and “fair” in one category (“communication skills”). Batista was not rated in three
categories.
Respondents West End believed the Esplanade Hotel had been overstaffed at the front
desk and in the food and beverage department (i.e., the kitchen and waitstaff). Respondents 30
West End maintained the engineering staff in full as, according to White, the existing staff fit the
needs of the new employer.
The interviewers generally testified that they understood the old Esplanade Hotel staff to
include union and nonunion employees, but claimed that hiring decisions were not made on the 35
basis of union affiliation. Respondent Ultimate does not manage other unionized facilities.
Post–Sale
Respondent Ultimate took over the management of the facility following the sale. 40
Initially, Respondent Ultimate’s regional managers maintained a near daily presence at the
facility to train employees and bring the new operation up to desired standards. Although these
managers stopped coming as often once the operation stabilized, they maintained responsibility
for the facility and continued to visit on a less frequent basis. Among their responsibilities,
regional managers were involved in disciplinary and discharge determinations. 45

17 Like Hardy, Duncanson was rated “excellent” in the categories of “guest service & hospitality
personality” and “enthusiasm,” and “good” in all other categories except “flexibility” (which was rated
“average”).
JD(NY)-03-19
14
The General Counsel asserts that Respondents West End initially hired 44 employees in
unit classifications and, of those, 36 were former employees of the predecessor. My count
reflected the same results.18 Respondents West End also hired five nonunit recreation
employees who were previously employed by the predecessor. 5
Respondents West End identified 15 predecessor employees it hired as individuals,
whom it believed, were not dues paying members of the Union. Those 15 employees included
the five nonunit recreational employees.19
10
Scharf, Levitt, and Singer maintained a presence at the facility after the sale. Levitt was
initially retained as the executive director without an adjustment in salary, but was later
transferred to the position of director of resident relations. Scharf has maintained an office at
the facility, but it is not clear what type of work he has done after the sale. Singer continued as
controller until about April 2017, when he separated. 15
According to Levitt, residents of the building were not affected by the sale and “there
was a complete continuity of services.” (Tr. 207) Residents continued to receive three meals a
day, housekeeping services, laundry services, concierge services, recreation, and
entertainment. Levitt also testified that she was unaware of any change in employees’ job 20
duties.
On December 20, Kayani sent the following email to managers/superisors, including
Tremble, Murphy, Walsh, Levitt, O’Connell, and Brown (GC Exh. 34):
25
Please make sure ANY and ALL new hires go through me including those that
will go into the kitchen/dining. This means that I meet them, even if it is for 5-
minutes. I also would like their new hire packet completed given to me, hand
delivered OR if I am NOT in the Community; scanned over to Maria and myself
30
including Eli. And this should be done BEFORE they start not after. (original
packet left for me to collect. I will review and FedEx over to Bohemia).

18 This count includes predecessor employees hired on December 5 and new employees hired no
later than December 8 (the first pay day). (GC Exh. 32) Respondent West End asserted in its brief that
46 non-supervisory/non-recreation positions (i.e., unit classifications) were initially filled. This number
seems to include Mike Whyte (listed on GC Exhibit 32 as hired and terminated December 5) and Tyler
Bogen (listed on GC Exhibit 32 as hired July 12). However, GC Exhibit 32 is some sort of chart and does
not appear to be actual payroll records. Whyte does not appear on the payroll as having worked for
Respondents West End and Bogen does not appear on the payroll until January 2017. (GC 18) Thus, I
have not included Whyte or Bogen among the initial complement. Attached to this decision is a list of
personnel hired by Respondents West End with references to employees’ positions, hire dates,
separation dates, and BSE status (according to Respondent West End).
19 Throughout the trial, the General Counsel and Union objected to the introduction of evidence
regarding dues paid by employees and/or their status as Union members. I largely sustained these
objections to the extent Respondents West End was not merely attempting to establish its awareness and
understanding of the same. The General Counsel has not contended that Respondents West End
discriminated against employees on the basis of their respective Union membership. Rather, the General
Counsel alleges that Respondents West End failed to hire predecessor employees to avoid
successorship.
JD(NY)-03-19
15
Same goes for termination - If someone resigns that is a different story, but if
someone will be terminated, I MUST be notified immediately and it must be done
in my presence. After the termination the respective Department head MUST
complete a West End Termination Form and hand deliver it to me or SCAN if
over to Maria, Eli and myself. (original one to be given to me when I am in the 5
building and I will get that to Bohemia).
I understand we have a lot going on but at the same time, inconsistencies in
these areas can and will lead to potential payroll errors that we do not want.
Therefore, I want everyone to take this very seriously.10
It was the intent of Respondents West End to operate the Esplanade Hotel as a high end
assisted living facility with appropriate certification from the NY DOH and high-level
services/amenities. Levitt testified that an assisted living facility has certified home-health
attendants and a round-the-clock nursing staff who keep medical records for each resident and 15
monitor their medication. Kayani testified that an assisted living facility needs to monitor health
care providers entering the building by having them sign in/out and ensuring, through a
background check, that they are properly licensed. According to Kayani, an assisted living
facility must also monitor and comply with the dietary restrictions of residents while an
independent living facility does not. Kayani further testified that, in an assisted living facility, 20
even nonmedical employees need to be aware of and ready to report potential medical
problems of residents. As an example, Kayani said a porter should report blood in the toilet
after seeing a resident exit the bathroom. According to Levitt, the primary difference between
an assisted and independent living facility is that the former provides medical services and the
latter does not.20 As of the trial, Respondents West End had not begun providing medical 25
services to residents or medical training to staff members.
Several managers of Respondents West End testified that the condition of the
Esplanade Hotel prior to the sale was deplorable, particularly the kitchen, dining room, and
employee lounge. Anderson testified that the administrative records were also extremely 30
disorganized. The General Counsel did not attempt to rebut this characterization of the facility.
As of the trial, Respondents West End were in the process of renovating the building and
applying for a license from the NY DOH to operate as an assisted living facility. Renovations
were scheduled to occur in two phases with phase 1 being renovations from the basement to 35
the seventh floor and phase 2 being renovations from the eighth floor to the roof. These
renovations started in the basement in about the spring of 2017. Kayani estimated that Phase 1
is about 35-40% done and would be finished in about 5 or 6 months. Phase 2 was expected to
begin in January 2019 and, according to Kayani, the entire process could take 2 years.

20 Although the record contains testimony regarding NY DOH licensing requirements for the medical
care of residents in assisted living facilities, Respondent West End did not specifically cite to state law or
regulations regarding the same. I take administrative notice that the NY DOH website, under “Adult Care
Facilities/Assisted Living,” states that “Adult Care Facilities (ACF) provide long-term, non-medical
residential services to adults who are substantially unable to live independently due to physical, mental,
or other limitations associated with age or other factors. Residents must not require the continual medical
or nursing services provided in acute care hospitals, in-patient psychiatric facilities, skilled nursing homes,
or other health related facilities, as Adult Care Facilities are not licensed to provide for such nursing or
medical care.” https://www.health.ny.gov/facilities/adult_care/. Legal information regarding what assisted
living facilities can and cannot do may be found in the New York public health law and applicable rules
and regulations. NY Pub Health L § 4651*2; 10 CRR-NY 1001.
JD(NY)-03-19
16
Kayani represented that he expected the NY DOH to grant the facility a license on a
rolling floor-by-floor basis as renovations progressed. Kayani testified (on April 4, 2018) that
construction on the seventh floor is complete and he hoped to receive a license for assisted
living on that floor within the month. However, the record closed on May 31, 2018 and contains 5
no evidence that the facility has been licensed in whole or in part for assisted living.
The record is largely silent with regard to the size and composition of the medical staff
Respondents West End intends to employ once the facility is licensed for assisted living.
Kayani testified that a registered nurse (RN) has been retained with the hope that the facility 10
would be licensed for assisted living on the seventh floor by the end of April 2018. This RN
would not actually start work until the facility received a license to operate on at least one floor.
The record contains no evidence that the RN has started working.
Respondents West End presented evidence of changes it has or plans to implement 15
following the sale. Front desk employees were provided with uniforms and reduced in number
from a maximum of three per shift to a maximum of two per shift. The waitstaff employed on
each shift was reduced as well. Managers described the kitchen and dining area as filthy,
unorganized, and cluttered, with expired food, broken appliances, missing ceiling tiles, and
missing lights. Accordingly, these areas have been cleaned, restocked, and fixed. 20
Kayani testified that all employees, including BSEs, were reevaluated by about April 20,
2017. However, there was no formal process for preparing written reviews during an initial
probationary period. Rather, according to Kayani, written evaluations were only prepared for
employees who were terminated during the probationary period. The remaining employees 25
received standard annual evaluations at some point during the year.
Respondents West End did not, on March 5, 2017, 90 days after the sale, discharge the
nine BSEs who remained after being identified in the attachment to McKeon’s December 2
email as employees who would not be hired.21 As of March 6, 2017, Respondents West End 30
employed 55 employees in unit classifications. Of those employees, 31 were still incumbent
employees who worked at the Esplanade Hotel prior to the sale.
Seven BSEs were terminated on March 23 or 24, 2017. Two of the BSEs allegedly
designated for termination on the December 2 list were, nonetheless, retained indefinitely. 35
Kayani testified that these two BSE porters were retained because they, like other employees
who were not discharged, demonstrated competence during the first 90 days of their
employment. Walsh testified that BSEs who were terminated had problems with attendance
and taking direction. Respondents West End replaced all of the BSEs who separated (either by
resignation or termination). By my count, once the last BSEs were terminated, new employees 40
outnumbered predecessor employees 26 to 24.22
ANALYSIS AND CONCLUSIONS

21 Two of these BSEs apparently resigned during the retention period.
22 The General Counsel asserted that the complement was still 32 to 27 employees in favor of
predecessor employees as of March 30, 2017. This count appears to be based on names in the payroll
records for the payday, March 30, 2017. However, GC Exhibit 32 indicates that BSEs were discharged
on March 23 and 24, 2017. It seems that these employees were paid on May 30, 2017 even though they
were no longer employed as of that date.
JD(NY)-03-19
17
I. Joint Employers
Respondents Esplanade
5
The General Counsel contends that Respondent Esplanade and Respondent County are
joint employers. I agree.
Under the current standard, “(t)he Board may find that two or more statutory employers
are joint employers of the same statutory employees if they ‘share or codetermine those matters 10
governing the essential terms and conditions of employment.’” Browning-Ferris Indus. of
California, Inc., 362 NLRB No. 186 (Aug. 27, 2015) quoting NLRB v. Browning-Ferris Industries
of Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982). “(T)he question is whether one
statutory employer ‘possesse(s) sufficient control over the work of the employees to qualify as a
joint employer with’ another employer.” Id. quoting Boire v. Greyhound Corp., 376 U.S. 473, 481 15
(1964).
It is uncontested that Respondent Esplanade was owned and operated by the Scharf
family. Scharf and Singer negotiated the most recent collective-bargaining agreement, which
was a comprehensive contract that governed unit employees’ terms and conditions of 20
employment. Scharf signed the contract as a representative of “County Agency Esplanade.”
Shortly thereafter, in settling a grievance regarding paid leave, Singer indicated that the Union’s
offer was “agreeable to the Esplanade and County Agency.” Thus, Scharf and Singer appeared
to be acting on behalf of two employers, Respondent Esplanade and Respondent County. As
Respondent County admits that it employed unit employees and the record demonstrates that 25
Respondent Esplanade codetermined the essential terms and conditions of employment of
those employees, I find that Respondents Esplanade are joint employers.
Levitt’s conclusory testimony that “we all worked for (Respondent) County” was neither
credible nor convincing. Rank-and-file employees were called by both sides to testify and none 30
indicated they understood anyone at the Esplanade Hotel to be employed by Respondent
County. Rather, employees testified that they understood the employer to be the Esplanade
Hotel as owned by the Scharf family.
Respondents West End35
The General Counsel contends that Respondent West End and Respondent Ultimate
are joint employers. Once again, I agree.
40
Respondent Ultimate’s regional managers hired the initial complement of employees,
and continued to visit and maintain authority over the facility after the sale. Thus, regional
managers have remained involved in employee discipline. On December 20, Kayani sent an
email to managers (including regional managers Tremble, Murphy, and Walsh) indicating that
he (Kayani) must approve any subsequent hires and terminations. Although the record is not 45
entirely clear on the point, it stands to reason that Respondent Ultimate managers responsible
for hiring employees also set the terms and conditions of their employment. Certainly, no
evidence was introduced to the contrary. Accordingly, I find that Respondents West End
codetermined the essential terms and conditions of employment of unit employees, and are joint
employers. 50
JD(NY)-03-19
18
II. Successor Analysis
Respondents West End as a Successor of Respondents Esplanade
The General Counsel contends that Respondents West End is a successor of 5
Respondents Esplanade. I agree.
A successor employer has a duty to recognize and bargain with an incumbent union
when, after assuming the business of a predecessor, it maintains a continuity of the enterprise
and a continuity of the work force with the presumption of majority support in an appropriate 10
unit. N.L.R.B v. Burns International Security Services, Inc., 406 U.S. 272 (1972); Fall River
Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27 (1987). Respondent West End contests the
continuity of the enterprise, the continuity of the work force, and the appropriateness of the unit.
In contesting the unit, Respondent West End contends that Respondents Esplanade and the
Union maintained a members-only arrangement whereby only dues paying Union members 15
received wages and benefits pursuant to the contract.
Unit
The Board has held that an incumbent union will not retain a presumption of majority 20
support within a unit if the unit lacked clarity or the parties administered their contract on a
members-only basis. Arthur Sarnow Candy Co., Inc., 306 NLRB 213 (1992); Brower’s Moving &
Storage, 297 NLRB 207, 208 (1989); Ace-Doran Hauling & Rigging Co., 171 NLRB 645 (1968).
In Browser’s Moving & Storage, 297 NLRB at 208, the Board stated as follows:
25
[I]t is well established in Board law that an incumbent union generally enjoys a
presumption of continued majority status during the term of a collective-
bargaining agreement. In Ace-Doran Hauling & Rigging Co., supra, the Board
found a narrow exception to that general rule when two factors undermined the
validity of the contract and the presumption of majority status. First, the Board 30
found that the unit was not defined with sufficient clarity “to warrant a finding that
the contracts are ones to which a presumption of majority status can attach.” (Id.
at 645) Second, the Board found that both parties' practice under the
agreements showed that the parties did not intend them to be effective collective-
bargaining agreements, but merely arrangements to check off dues and to 35
procure benefits for union members only. (Id. at 646) Similarly, in Bender Ship
Repair Co., (188 NLRB 615, 615 (1971)), the Board found a “patent ambiguity” in
the contractual unit definition and that the union acquiesced in the application of
the contract to only a few favored employees. (Id. at 616)
40
Here, Levitt testified that she gave higher raises than the contract required to employees
who were considered nonunion. However, Levitt was not a credible witness and I do not rely on
her testimony in the absence of documents to substantiate her claim that the contract was not
applied to certain employees. The best evidence would be payroll records and other documents
showing the receipt of wages and benefits by employees. See Electronic Data Systems 45
International Corporation, 278 NLRB 125 (1986). Contrary to Levitt’s self-serving testimony, the
JD(NY)-03-19
19
2016 payroll records show that employees received wage increases of $0.40 per hour and
premium pay consistent with the contract.23
At most, Respondent West End has arguably demonstrated that the Union did not
enforce the union security clause with respect to certain employees who were not paying dues. 5
I make no factual finding in this regard as, even if true, it is not controlling of the legal issue.
The Union’s alleged failure to demand the discharge of employees pursuant to the union
security clause does not mean those employees were denied representation or that the
presumption of their support for the Union should not apply. As noted above, the credible
evidence indicates that employees were covered by the collective-bargaining agreement and 10
paid accordingly. In fact, the employees’ receipt of contractual pay without incurring the cost of
bargaining would arguably make the Union more attractive rather than less. See Pacific Coast
Supply, LLC, 360 NLRB 538, 545, fn.11 (2014) citing Terrell Machine Co. v. NLRB, 427 F.2d
1088, 1090 (4th Cir. 1970)) (ALJ observes that, in Terrell, the court did not find employee
nonmembership in right-to-work state suggestive of employees’ disaffection from the union as 15
employees could be content with benefits of representation without paying for them).24
Regardless, the law provides for a presumption regarding the union support of incumbent unit
employees and does not turn on or require a hearing as to their subjective feelings.
It is admittedly puzzling that the Union was not aware that recreation employees were 20
employed at the Esplanade Hotel and failed to take the position, once it found out, that
recreation employees must be included in the wall-to-wall unit. However, the contractual unit
was specifically described and the Union’s failure to seek the inclusion of five previously
unknown recreation employees did not render the unit description ambiguous.
25
Based upon the foregoing, I will not apply the “narrow exception” referenced in Ace-
Doran Hauling & Rigging Co. to find that the Union lacks majority support because the unit
lacked clarity or the predecessor’s contract was administered on a members-only basis.
Continuity of the Enterprise30
In determining the continuity of the enterprise between predecessor and successor
operations, the Board considers the following factors among the totality of the circumstances:
“(1) whether the business of both employers is essentially the same; (2) whether the employees
of the new company are doing the same jobs in the same working conditions under the same 35
supervisors; and (3) whether the new entity has the same production process, produces the
same products, and basically has the same body of customers.”25 Allways East Transportation,
Inc., 365 NLRB No. 71 (May 11, 2017) citing Fall River Dyeing, 482 U.S. at 43. These factors

23 Respondent West End did not indicate that it attempted, with subpoena power, to obtain records
from Respondent County as would establish that employees received pay and/or benefits inconsistent
with the contract.
24 If Respondent West End’s theory were adopted, nonmember employees who do not pay Union
dues or financial core fees in right-to-work states would not be counted toward an incumbent union’s
support in a successor analysis. The Board has not adopted such an approach to continuity. See, e.g.,
Empire Janitorial Sales & Service, LLC, 364 NLR No. 138 (Nov. 3, 2016).
25 The Supreme Court has observed that succession rests largely “in the hands of the successor” in
that it must make “a conscious decision to maintain generally the business” and “take advantage of the
trained work force of its predecessor.” Fall River Dyeing, 482 U.S. at 41.
JD(NY)-03-19
20
are analyzed from the perspective of unit employees and whether they “‘understandably view
their job situations as essentially unaltered.”’ Id. quoting Golden State Bottling Co., 414 U.S.
168, 184 (1973). Accordingly, “the essence of successorship . . . is not premised on an
identical re-creation of the predecessor’s customers and business . . . .” A.J. Myers & Sons,
Inc., 362 NLRB No. 51, slip. op. at 7.5
Here, Respondents West End did not significantly alter the operation following the sale.
According to Levitt, the existing residents experienced a “complete continuity of services,” and
the evidence does not indicate that the cleaning and ongoing renovation of the building had the
effect of significantly changing the nature of the business. Respondents West End determined 10
that the facility was somewhat overstaffed and reduced the number of certain employees on
certain shifts, but did not change the tasks those employees performed or their working
conditions. The record also indicates that Levitt, Scharf, Singer, and at least some supervisors,
were retained by Respondents West End. Although certain managers and supervisors did
change, the operation was not impacted in such a significant way as to undermine, from the 15
perspective of unit employees, a continuity of the enterprise. See e.g., Empire Janitorial Sales
& Service, LLC, 364 NLR No. 138 (Nov. 3, 2016).
Respondents West End contend that certain changes were planned and would take
effect once the Esplanade Hotel transitioned to an assisted living facility. However, 20
Respondents West End acquired the property on December 5 and had not received a license, in
whole or in part, up to and through the litigation of this matter, 16 months later. I do not rely on
Kayani’s self-serving testimony that at least one floor was going to be licensed by the end of the
month since the trial continued for another two months without evidence of the same. The
record indicates that Respondents West End has done no training of employees with regard to 25
the provision of medical services and the record does not contain significant evidence as to how
specific unit positions would change once the facility is licensed for assisted living.26
The limited evidence Respondent West End presented regarding future changes to its
operation are not of a type that, even if already implemented and described in greater detail, 30
would defeat a finding of successorship. In Morton Development Corp., 299 NLRB 649 (1990),
the Board rejected an employer’s contention that it had no obligation to bargain with an
incumbent union after closing for over 4 months in order to convert its intermediate care facility
for the intellectually disabled to a skilled nursing home.27 In so doing, the Board found the new
operation “sufficiently similar to its old business” to sustain a continuity of its bargaining 35
obligation even though it changed its mission and customers, made some physical changes to
the facility, sold/purchased certain equipment, and increased its medical services. Id. See also
Empire Janitorial Sales & Service, LLC, 364 NLR No. 138 (Nov. 3, 2016). The Board, in Morton
Development, 299 NLRB at 651, noted in part, as follows:
40
[T]here were minor changes in the way the service and maintenance employees
performed their jobs. Cooks and dietary aides now prepare more specialized

26 Although Respondents West End has retained one RN, the RN has not begun working and cannot
be included in a non-professional unit without choosing the same in a self-determination election. The law
is also unclear as to the type of medical services an assisted living facility may provide.
27 Morton Development was not a successor case in the since that the putative successor was the
same corporate entity as the predecessor. The Board “recognized, however, the usefulness of the
factors applied in making successorship determinations” and relied on Board successor cases in
conducting a continuity analysis. 299 NLRB at 650.
JD(NY)-03-19
21
foods and trays for the elderly residents; the housekeeping aides work around
medical equipment and may work around residents who cannot be moved; and
the laundry aides actually launder washables rather than showing residents how
to perform laundry duties. Employees who were formerly living unit aides became
nurses aides and have increased nursing responsibilities. Nevertheless, they, 5
along with activities aides, basically *652 remain responsible for assisting
residents in their daily routine. The current residents are, however, more frail and
less mobile than the former residents and can spend only a small part of their
time in programmed activities. Maintenance employees now encounter fewer
problems with equipment and furniture that has been damaged by residents. 10
Nonetheless, upon the Respondent’s reopening, as the judge originally
observed, cooks still cooked, maintenance persons still repaired, and aides still
aided residents.
Respondents West End does not purport to be planning more extensive changes to the 15
operation than the changes implemented in Morton, and I find that Respondents West End
maintained a continuity of the enterprise with its predecessor.
Continuity of the Work Force
20
A successor will be found to have maintained a continuity of the predecessor’s work
force and will be presumed to have majority support among unit employees if, upon hiring a
“substantial and representative complement” or “full complement” of employees, a majority were
employed by the predecessor in an appropriate unit. N.L.R.B v. Burns International Security
Services, Inc., 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 25
27 (1987). This is because Board policy presumes the employees of a unionized employer will
continue to support the union after a new employer takes over, and generally requires the
successor employer to recognize the union if a majority of its work force were employed by
the predecessor in an appropriate unit. Fall River Dyeing, 427 U.S. at 40; Labor Plus, LLC, 366
NLRB No. 109 (June 14, 2018). The Supreme Court explained in Fall River Dyeing, 482 U.S. at 30
39-40, the importance of presumptions in the context of successorship as follows:
The rationale behind the presumptions is particularly pertinent in the
successorship situation and so it is understandable that the Court
in Burns referred to them. During a transition between employers, a union is in a 35
peculiarly vulnerable position. It has no formal and established bargaining
relationship with the new employer, is uncertain about the new employer's plans,
and cannot be sure if or when the new employer must bargain with it. While
being concerned with the future of its members with the new employer, the union
also must protect whatever rights still exist for its members under the collective-40
bargaining agreement with the predecessor employer. Accordingly, during this
unsettling transition period, the union needs the presumptions of majority status
to which it is entitled to safeguard its members' rights and to develop a
relationship with the successor.
45
The position of the employees also supports the application of the presumptions
in the successorship situation. If the employees find themselves in a new
enterprise that substantially resembles the old, but without their chosen
bargaining representative, they may well feel that their choice of a union is
subject to the vagaries of an enterprise's transformation. This feeling is not 50
conducive to industrial peace. In addition, after being hired by a new company
JD(NY)-03-19
22
following a layoff from the old, employees initially will be concerned primarily with
maintaining their new jobs. In fact, they might be inclined to shun support for their
former union, especially if they believe that such support will jeopardize their jobs
with the successor or if they are inclined to blame the union for their layoff and
problems associated with it. Without the presumptions of majority support and 5
with the wide variety of corporate transformations possible, an employer could
use a successor enterprise as a way of getting rid of a labor contract and of
exploiting the employees' hesitant attitude towards the union to eliminate its
continuing presence.
10
In deciding when the prospective successor has hired a full complement of employees,
the Board considers whether the job classifications designated for the operation were filled or
substantially filled, whether the operation was in normal or substantially normal production, the
size of the complement on that date, the time expected to elapse before a substantially larger
complement would be at work, and the relative certainty of the employer’s expected expansion. 15
Fall River Dyeing, 482 U.S. at 49; Labor Plus, LLC, 366 NLRB No. 109 (June 14, 2018).
I find that Respondents West End was a successor as of the date of the sale, December
5. Respondents West End provided “a complete continuity of services,” as described by Levitt,
to the same residents when it assumed control of the Esplanade Hotel. Levitt also admitted that 20
she was unaware of any change in employees’ job duties. Employees offered credible and
undisputed testimony that they continued to perform the same work and provided the same
services before and after the sale. Respondent West End’s assertion that certain employees
should be included in the complement but not counted toward the Union’s majority, because
they were not dues paying Union members, has no legal support and misconstrues the concept 25
of a presumption.
Nevertheless, Respondent West End contends it could not have hired a substantial and
representative complement of employees until the DBSWPA 90-day period for retaining BSEs
expired. This defense fails for a number of reasons. 30
First, Respondents West End did not actually reduce its staff by discharging some or all
of the BSEs after the required 90-day retention period. All of the BSEs who were discharged
were replaced. Since the BSEs were replaced, the complement of employees was unaffected
by their ultimate severance, and was full as of December 5. By December 5, Respondents 35
West End had filled desired classifications and was operating at normal production without any
disruption of residential services.
Second, Respondent West End’s math is unconvincing. McKeon’s December 2 email
identified 11 BSEs who were, allegedly, not going to be hired. However, two of those BSEs 40
were retained indefinitely following the 90-day retention period. Thus, at most, only nine BSEs
(not 11) could arguably be excluded from the count. In its brief, Respondent West End asserts,
illogically, that none of the 15 BSEs should be counted toward the Union’s majority support even
though six (including four not mentioned in the December 2 email) were retained indefinitely
(and all were unit employees employed by the predecessor). Those six predecessor BSEs, at 45
the very least, would be counted toward the Union’s support.
Even if I were to accept as fact that Respondents West End made a pre-sale decision
not to hire 11 BSEs (which, as discussed below, I do not) and assume nine new employees
would have been hired in place of those who were not ultimately retained, the amended count 50
would be 27 predecessor employees to 17 new employees – a clear union majority. The record
JD(NY)-03-19
23
contains no evidence that the complement was, in any other way, as of December 5, arguably
distorted by local law. The normal turnover of non-BSEs while certain BSEs were in the
process of being replaced has nothing to do with the DBSWPA, and Respondents West End
has no basis for opportunistically reaping the benefits of the same to deny unit employees their
bargaining representative.285
Third, as mentioned above, the factual assertion underlying Respondent West End’s
defense is unsubstantiated by the credible evidence. Respondent West End asserts in its brief
that “the record is undisputed that none of the housekeeping staff would have been hired if
Respondent had not been obligated to hire them under the [DBSWPA].” (Resp. Brf. p. 24) This 10
is incorrect as the factual assertion was flatly disavowed by its own witness, Kayani. Kayani
testified that no determinations were made to discharge BSEs in advance of the sale and
Respondents West End preferred to retain them indefinitely (like all other former employees of
the predecessor). I do not rely on McKeon’s December 2 email, which is hearsay, to reach a
finding to the contrary. Likewise, I do not rely on the testimony of Anderson or Walsh. Kayani 15
credibly testified that he had the final say with regard to hiring the predecessor’s employees.
On December 20, Kayani sent an email cautioning his managerial team to consult with him in
advance of any terminations. Since Kayani had authority over the hiring and retention of BSEs,
and had no plans not to hire them in advance of the sale (or even discharge them after 90
days), I reject the contention that Respondents West End would not have hired certain BSEs but 20
for the DBSWPA.
Last, but not least, in a case directly on point, the Board rejected the argument “that the
successorship determination could not be made until after the DBSWPA-mandated retention
period has ended.” GVS Properties, LLC, 362 NLRB No. 194 (Aug. 27, 2015).29 The Board, in 25
GVS Properties, observed that it “has long held that the successorship determination is not
affected by the temporary or probationary status of the predecessor's employees in the
successor's work force, and it has found it inappropriate to defer successorship determinations
until after the completion of employer-imposed probationary periods.” Id. The Board further
noted that this was so even where the retention of the predecessor’s employees was required 30
for a period of time as a provision of the contract of sale. Id.
Based on the foregoing, I find that, as of December 5, Respondents West End was a
successor of Respondents Esplanade.

28 Respondent West End is on even more dubious factual and legal grounds in asserting that five
recreation employees should be counted toward the complement but not counted toward the Union’s
majority support. Throughout the trial, and in its brief, Respondent West End’s counsel represented that
recreation employees were not unit employees. It is, therefore, nonsensical to suggest that the five
recreation employees should be counted toward the unit complement. Further, for the reasons described
above, if recreation employees were included in the complement, as predecessor employees, they would
be counted toward the Union’s majority support. However, even if I we were to include the recreation
employees in the unit complement and not count them as presumed Union supporters, the Union would
still enjoy a majority of 27 to 22.
29 Although Respondent West End relies heavily upon an ancillary proceeding in which a district court
denied the Board’s petition for 10(j) relief, Paulsen ex rel. NLRB v. GVS Properties, LLC, 904 F.Supp.2d
282, 292 (E.D.N.Y), the Board in GVS Properties expressly rejected the precedential value of that
decision as it “is not binding on the Board.” 362 NLRB NLBB No. 194, fn. 12. Further, although the
Board’s decision in GVS Properties was ultimately “vacated as moot” by order of the United States Court
of Appeals for the District of Columbia, the circuit did not reach or address the merits of the case and,
regardless, its decisions are no more controlling as precedent than those of the district court.
JD(NY)-03-19
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III. Section 8(a)(5) and (1) – Refusal to Recognize/Bargain and Furnish Information
1. Refusal to Recognize and Bargain with the Union
5
Respondent West End has denied an obligation to bargain with the Union on the
grounds that (1) Respondent Ultimate was not a joint employer with Respondent West and (2)
they are not, collectively, the successor of Respondents Esplanade. As discussed above, I
have found that Respondent West End and Respondent Ultimate are joint employers and,
collectively, a successor of Respondents Esplanade. Accordingly, I find that Respondents West 10
End violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the
Union as the bargaining representative of unit employees.
2. Refusal to Furnish Information to the Union
15
The General Counsel contends that Respondents Esplanade violated Section 8(a)(5)
and (1) of the Act by refusing to provide the Union with information related to the sale of the
facility. Respondents Esplanade did not appear at trial or file briefs in defense of this allegation.
I agree that Respondents Esplanade violated the Act as alleged.
20
I have already determined, above, that Respondents Esplanade are joint employers and,
as such, are both under an obligation to produce requested information that is relevant and
necessary for the Union to perform its function as the bargaining representative of unit
employees. Branch International Services, Inc., 313 NLRB 1293, 1296 (1994).
25
The Union requested the identity of prospective purchasers of the business with contact
information, a copy of any purchase documents, communication between Respondents
Esplanade and purchasers as relate to the collective-bargaining agreement, and any other
documents which refer or relate to the sale. This is not information that is presumptively relevant
as it does not pertain to the terms and conditions of employment of unit employees. Rather, the 30
burden of establishing relevance is on the requesting party. However, the Board has adopted a
liberal discovery-type standard for information requests and the burden of showing relevance is
not exceptionally heavy. Columbia College Chicago, 363 NLRB No. 154 (2016); A-1 Door &
Building Solutions, 356 NLRB 499, 500 (2011); Shippers Food Warehouse Corp., 315 NLRB
258, 259 (1994); Leland Stanford Junior University, 262 NLRB 136, 139 (1982) enfd. 715 F.2d 35
473 (9th Cir. 1983).
As noted in the successor section, the sale of a business is a particularly vulnerable time
for employees and their bargaining representative. Accordingly, the “Board has . . . held that
where the union bargaining representative has received information that the employer may be 40
subcontracting unit work or has or may be transferring its business to another, the union is
entitled, on appropriate request, to information bearing on that issue, so that the union may
properly represent the unit employees.” Washington Star Co., 273 NLRB 391, 396 (1984) citing
Westwood Import Co., 251 NLRB 1213 (1980) and Air Express International Corp., 245 NLRB
478 (1979). 45
Here, the Union justified its information request as being necessary to monitor and
enforce the contract, particularly Article 31 on successors and assigns. The information is
arguably relevant to this end as it would allow the Union to identify prospective buyers,
determine whether the sale agreement provides for assumption of the collective-bargaining 50
agreement, and determine whether Respondents Esplanade notified the purchaser of the
JD(NY)-03-19
25
collective-bargaining agreement (as required by Article 31). An employer might assert that the
requested information is overly broad and contains confidential information. However, “(i)t is
well established that an employer may not simply refuse to comply with an ambiguous or
overbroad information request, but must request clarification and/or comply with the request to
the extent it encompasses necessary and relevant information.” Columbia College Chicago, 363 5
NLRB No. 154 (2016) quoting National Steel Corp., 335 NLRB 747, 748 (2001). Further, the
party asserting a confidentiality claim has the burden of proving it and proposing an
accommodation such as redactions. Washington Gas Light Co., 273 NLRB 116 (1984); United
States Postal Service, 364 NLRB No. 27 (2016). Respondents Esplanade did not contend that
the Union’s information request was overbroad or encompassed confidential information.10
Based on the foregoing, I find that Respondents Esplanade violated Section 8(a)(5) and
(1) of the Act by refusing to furnish information requested by the Union on October 27.
IV. Section 8(a)(3) and (1) – Refusal to Hire15
The General Counsel contends that Respondents West End refused to hire 15 of the
predecessor’s employees in violation of 8(a)(3) of the Act. I find, herein, that Respondents West
End unlawfully refused to hire steward Trinidad, but will dismiss the remainder of the refusal-to-
hire allegations. 20
In successor situations, the Board does not apply the FES, 331 NLRB 9 (2000) refusal-
to-hire analyses to the extent it requires proof that the employer was actually hiring at the time
of the alleged unlawful conduct and the applicant had relevant experience or training for the
position. Planned Building Services, 347 NLRB 670 (2006). Rather, it is presumed that the 25
successor is hiring positions previously filled by predecessor employees and that the
predecessor employees are qualified to continue in those positions. Id. Accordingly, consistent
with Wright Line, 251 NLRB 1083 (1980), to establish “a violation of Section 8(a)(3) and (1) in
cases where a refusal to hire is alleged in a successorship context, the General Counsel has
the burden to prove that the employer failed to hire employees of its predecessor and was 30
motivated by antiunion animus.” Id. The Board has held that such proof includes the following:
[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 35
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.
Id. at 673 citing U.S. Marine Corp., 293 NLRB 669, 670 (1989), enfd en banc 944 F.2d 1305 40
(7th Cir. 1991), cert. denied 503 U.S. 936 (1992). Once the General Counsel has shown that
the employer failed to hire employees of its predecessor and was motivated by antiunion
animus, the burden shifts to the employer to prove it would not have hired the predecessor's
employees even in the absence of its unlawful motive. Id. at 674.
45
The parties have presented specific arguments with regarding to employees Hardy and
Duncanson, and I will address them before moving on to an analysis of the alleged
discriminatees as a group.
50
JD(NY)-03-19
26
Trinidad Hardy
Respondents West End was admittedly aware that Hardy was the shop steward.
Further, through Scharf, Singer, and Levitt, who were retained by Respondents West End
following the sale, Respondents West End would have known that Hardy was one of the 5
negotiators who represented the Union in negotiations for the most recent collective-bargaining
agreement.
Evidence of Union animus consists largely of a discrepancy between the favorable
applicant evaluation Hardy received from Youngberg and Youngberg’s inexplicable testimony to 10
the contrary. Youngberg testified that Hardy “came in with a look of anger and disgust that we
were even going through this process. Just a body language, angry face.” However,
Youngberg graded Hardy “excellent” in categories of “guest service & hospitality personality”
and “enthusiasm.” Youngblood admitted that such ratings would not normally be given to an
employee who looked angry and disgusted. I do not find Youngberg credible. Rather, I find his 15
explanation for the refusal to hire Hardy blatantly pretextual.
The decision not to hire Hardy is particularly surprising since Respondents West End
admitted a preference for hiring applicants who presented well in attitude, personality, and
enthusiasm. Although perhaps somewhat a comparison of apples and oranges, it is noteworthy 20
that Respondents West End hired several servers even though they had consistently “average”
ratings in multiple categories, including the categories of personality and enthusiasm. Tremble
testified that an applicant’s personality was particularly important for front of the house servers
because they have significant interaction with residents. One would expect it to be equally
important for a front desk concierge employee, such as Hardy, to display an engaging 25
personality as she too had significant interaction with residents. Accordingly, it is telling of
Respondents West End’s discriminatory intent that waitstaff were hired with “average” ratings
for personality and enthusiasm while Hardy was not hired with ratings of “excellent.”
In my opinion, the flagrant pretext of the stated reason for Respondents West End’s 30
refusal to hire Hardy and a degree of disparate treatment is sufficient to establish a prima facie
case.30 See Grane Healthcare Co., 357 NLRB 1412 (2011). There is pretext and then there is
pretext. This is not a case in which something was odd or a little difficult to understand about an
employer’s explanation for alleged unlawful conduct. Rather, Youngberg’s rational directly and
irreconcilably conflicts with his own applicant evaluation. Youngberg, on the stand, was 35
presented with the discrepancy and could not begin to articulate an explanation.
Since the stated reason for Respondents West End’s refusal to hire Hardy is pure
pretext, I need not do a mixed-motive analysis to determine whether Hardy would have been
hired regardless of her union position and activity. Parkview Lounge, LLC, 366 NLRB No. 71 40

30 I do not rely, in considering alleged antiunion animus on the part of Respondents West End, on the
statement of an unnamed individual to Baldoquin, on October 27, that, “to his knowledge, this wasn’t
going to be a union shop and that [employees] had to reapply.” Baldoquin did not attempt to determine
the individual’s name and was not asked to describe his appearance at trial. Accordingly, I am not
inclined to find the anonymous individual an agent of Respondents West End. Further, I do not find the
statement overly indicative of animus. Technically, the new employer was not a union shop until and
unless the predecessor employees applied and were hired in sufficient number to find successorship.
Lastly, Respondent Ultimate managers were not familiar with “union shops” and the individual’s comment
that employees “had to reapply” suggests, perhaps, a misunderstanding as to what a union shop
signifies.
JD(NY)-03-19
27
(Apr. 26, 2018); Master Mining, 274 NLRB 1213, 1214 (1985). Accordingly, I find that
Respondents West End violated Section 8(a)(3) and (1) of the Act by refusing to hire Hardy
because of her union position and/or activity.
Although Hardy signed an agreement releasing Respondents Esplanade from certain 5
damages resulting from a charge filed with a federal agency, Respondents West End was not a
party to that agreement. If Respondents West End want to assert a release of damages on the
grounds that it is a successor or assign of Respondents Esplanade, it may do so in a
compliance proceeding.
10
Deannie Duncanson
The General Counsel contends that Respondents West End refused to hire Duncanson,
along with the other alleged discriminatees, in an attempt to avoid successorship. Respondents
West End defended against the allegation as it pertains to Duncanson on the grounds that she 15
was a supervisor within the meaning of Section 2(11) and not covered by the Act. The General
Counsel contends that Duncanson was a unit employee who acted largely as a cook and
server. However, Duncanson’s alleged supervisory status with Respondents Esplanade is not
germane to the issue whether Respondents West End violated the Act by refusing to hire her.
Respondents West End could refuse to hire an applicant into a 2(11) position on the basis of 20
that person’s union activity. The issue is not whether Duncanson held a unit position with
Respondents Esplanade, but whether Respondent West End unlawfully refused to hire her into
a unit position. I find that it did not.
Duncanson admittedly stated in her resume that she was the director of food service at 25
the Esplanade Hotel and applied for the same position with Respondents West End.
Respondents West End was entitled to reject her application for that nonunit position even if it
did so on the basis of her union activity.
I do not find that Respondents West End should have known to consider Duncanson for 30
hire as a unit employee (e.g., server or cook). Whether she actually held the position of lead,
supervisor, manager, or director of food service, there is little question that Duncanson was
either the person or one of the people in charge of the kitchen. She told Tremble during the
interview she could do things other than manage, but did not say she would take a lesser
position than the one she claimed to hold previously and the one she was applying to retain. 35
Duncanson’s resume did not indicate she had performed unit work (i.e., serving food) since
1998. Under these circumstances, I do not find the evidence sufficient to show that
Respondents West End acted unreasonably or unlawfully in its refusal to consider her for a unit
position. See Diamond Detective Agency, Inc., 339 NLRB 443 (2003) (employer acted lawfully
in refusing to hire employee into former position he was applying for and not considering him for 40
employment in other positions that were available).
The General Counsel contends that Respondents West End’s unlawful intent to bar
Duncanson from a unit position can be gleaned from Tremble’s testimony that he did not hire 45
Duncanson because she oversaw an operation in poor condition and received a favorable
applicant evaluation. According to the General Counsel, Tremble’s testimony was pretextual
because Respondents West End hired Levitt even though she was the executive director of a
poorly run facility. However, Respondent West End presented uncontested evidence that the
kitchen and dining area were in particularly egregious condition and the two other “kitchen 50
leads” (as identified by Duncanson) were not hired either. Further, although Duncanson
JD(NY)-03-19
28
received above-average ratings on her applicant evaluation, the employment decision was
based on the condition of her department as opposed to her interview. Accordingly, I do not
find Tremble’s rational for refusing to hire Duncanson, on its merits, to be pretextual or indicative
of a discriminatory intent.
5
Based upon the foregoing, I do not find that the General Counsel established a prima
facie case that Respondents West End unlawfully refused to hire Duncanson.
3. Alleged Discriminatees other than Hardy
10
The General Counsel contends that Respondents West End refused to hire alleged
discriminatees other than Hardy in a doomed attempt to avoid successorship. I disagree and
will dismiss these refusal-to-hire allegations.
As noted above, Respondents West End hired a super majority of the predecessor’s 15
employees on December 5. The General Counsel asserts in a conclusory manner that
Respondents West End attempted to avoid hiring a majority of the predecessor employees, but
miscalculated the total number of employees in the bargaining unit. The General Counsel has
offered no explanation or theory as to whom Respondents West End mistakenly believed was
in/out of the unit and how it would have affected the count. The General Counsel has not, for 20
example, claimed that Respondents West End mistakenly believed that 10 predecessor
employees in unit classifications would not be counted toward the Union’s majority support
because they were not dues paying members of the Union (a position Respondent West End
actually took in connection with the successor analysis). Considering such a possibility, for the
sake of argument, and including those employees in the complement but not counting them as 25
union supporters, the Union would still have majority support by a count of 26 to 18. If
Respondents West End also believed the predecessor’s five nonunit recreation employees
would be included in the count (perhaps upon the belief that recreational employees must be
included in any appropriate unit) and excluded as employees who were not dues paying
members of the Union, predecessor employees would still outnumber new employees by a 30
count of 26 to 23. Accordingly, it does not follow that Respondent mistakenly believed it would
avoid successorship by hiring “nonunion” employees instead of the alleged discriminatees.31
Admittedly, Respondent West End has taken the position in this proceeding that it did
not hire a full complement of unit employees until after certain BSEs were replaced (by April 20, 35
2017) or at least separated (March 23 or 24, 2017). Thus, it is conceivable that Respondents
West End set out to orchestrate a discriminatory plan whereby it sought to avoid succession by
refusing to hire the alleged discriminatees, waiting over 90 days for the DBSWPA retention
period to expire, and terminating enough BSEs to eliminate the Union’s majority support (and
thereby defeat a finding of successorship). Since Respondent West End actually raised this 40
hail-mary defense against successorship, I am inclined to address the possibility that its hiring
process was strategically designed in support of it. However, in my opinion, the General
Counsel has a greater evidentiary hill to climb than in the more typical case where an employer
actually refuses to hire a majority of the predecessor’s employees and can reasonably expect to
avoid succession on that basis.45

31 As noted in the fact section, the General Counsel has not argued that Respondents West End
discriminated against employees (other than Hardy) on the basis of an understanding that some were
union members and others were not. Rather, the General Counsel has contended that Respondents
West End violated Section 8(a)(3) and (1) of the Act by attempting (unsuccessfully) to avoid hiring enough
predecessor employees to be found a successor.
JD(NY)-03-19
29
It is also noteworthy that Respondents West End did not immediately terminate any of
the BSEs as soon as it was legally entitled to do so on March 5, 2017 (90 days after the sale).
BSEs were retained through March 22, 2017. One would expect an employer intent on
defeating successorship by firing BSEs to do so as quickly as possible. Further, the General 5
Counsel has not alleged or attempted to prove that any of the BSEs were unlawfully terminated.
The fact that Respondents West End did not rush to terminate BSEs, perhaps unlawfully,
suggests it was not seeking to avoid successorship by extralegal means (and makes the
evidentiary hill in favor of a violation even steeper).
10
As discussed above, I have found that Respondents West End refused to hire Hardy
because she was known to be the Union steward and participated in contract negotiations.
Respondents West End’s treatment of Hardy does suggest that it preferred to avoid hiring
proactive union supporters and would prefer to avoid dealing with the Union as a bargaining
representative of unit employees. The remainder of the General Counsel’s arguments in favor 15
of a violation are far less compelling.
The General Counsel contends that the failure of interviewers to complete an applicant
review form for each applicant warrants an inference of discrimination. I do not find it
particularly suspicious that interviewers used the form as convenient during a day when they 20
were interviewing and hiring a great many applicants. The interviewers were not required by
upper management or human resources to use the form for each employee. Rather, the form
was used in a discretionary manner for guidance. Further, the evidence does not indicate that
the forms went strategically missing for certain employees, such as the alleged discriminatees.
The record does not contain applicant evaluations for some of the alleged discriminatees, but 25
does contain applicant evaluations for other alleged discriminatees, including Hardy. If
Respondents West End were inclined to artificially lower the rankings or “misplace” the
evaluations of alleged discriminatees, we probably would not be in possession of a stellar
applicant evaluation for, of all applicants, the known steward. Although the General Counsel is
correct that interviewers were not entirely consistent in rigorously using the applicant evaluation 30
form for every applicant, Respondents West End’s failure to do so was not the type of
inconsistency which necessarily suggested a discriminatory intent.
Likewise, I do not find it overly suspicious that (1) the interviews only lasted 5 to 15
minutes, (2) interviewers did not have access to employee personnel files, and/or (3) employee 35
references were not rigorously checked. It is perhaps somewhat surprising that interviewers did
not spend more time with each applicant given that Respondents West End considered attitude
and personality the most important qualification for certain positions (as opposed to, for
example, years of service with the company). However, some applicants were interviewed
more than once and applicants were interviewed in large numbers. Respondents West End 40
was also aware that in-house applicants were sufficiently qualified to maintain employment with
the predecessor. I do not think it self-evident that longer interviews were necessarily warranted
or practical under the circumstances. With regard to personnel files, interviewers testified that
Respondents Esplanade did not give them access to those documents. Tremble noted that 45
interviewers do not normally have access to personnel files when hiring employees and
employees were being interviewed “without prejudice.” Senken did not consider the absence of
personnel files to be a particularly significant disadvantage as such documents tend to be
subjective. I am not shocked that Respondents West End failed to make a greater effort to
obtain and pour through personnel files of employees who were currently working at the 50
Esplanade Hotel and had not been discharged. I am equally unimpressed, as evidence of
JD(NY)-03-19
30
animus, by Anderson’s testimony that he was unaware whether the interviewers checked the
references of newly hired employees who never worked at the Esplanade Hotel. Managers who
conducted the interviews were called by Respondent West End to testify and were not asked
whether they contacted references. Anderson explained that ideally in a typical hiring situation
where time allows, it is good practice to check references even though such references are 5
rarely reliable. However, Anderson also testified that this was not a typical situation.
The General Counsel did not specifically assert how these discrepancies in the hiring
process actually work into its theory of the case. It could be argued that the corners
Respondents West End cut in hiring employees suggest it would have retained all Respondents 10
Esplanade’s employees if it were not for a strategy of union avoidance. However, it is at least
equally plausible that Respondents West End were pressed to implement a new operation, hire
a large number of employees, and already knew that most employees successfully maintained
employment at the Esplanade Hotel without being fired. I can understand an employer wanting
to conduct a fairly brief interview of employees to ensure they were not hiring someone who 15
presented particularly poorly, without scouring personnel records or having in depth discussions
about each employee with their former managers and supervisors. It is somewhat suspicious
that Respondents West End hired new employees without conducting extensive interviewers of
those applicants or (perhaps) checking their references, but this evidence was not aggressively
pursued and, even if true, would be far from a smoking gun under the circumstances. 20
The General Counsel asserts that alleged discriminatees who received average ratings
on their applicant evaluations should have been hired over new applicants, and Respondent’s
West End’s failure to offer more specific reasons for its decision not to hire the alleged
discriminatees to do so infers animus. Tremble testified that it was typical for Respondents 25
West End to hire applicants with ratings of “average” and (excluding Hardy and Duncanson)
alleged discriminatees received certain category rankings of “average” or, in limited
circumstances, “good.” Further, Kayani testified that Respondents West End preferred to keep
predecessor employees if possible because it was less time consuming and costly than
replacing them. Thus, to the extent employees were equivalent and received ratings of 30
“average,” we would expect incumbent employees to be hired over new employees.
The problem with the General Counsel’s argument in this regard is that it relies on
comparisons between employees who were both employed by the predecessor and/or
employees who were not equivalent. The General Counsel notes that predecessor employee 35
Nichols was hired with “average” ratings while alleged discriminatee Terrier was not hired with a
rating of “good” in the category of “guest service & hospitality personality.”32 However, Nichols
and Terrier were both former employees of the predecessor and selecting one over the other
would not adversely impact Respondents West End with regard to successorship. Further,
Nichols was a server while Terrier was a cook, and their applicant evaluations appear to have 40
been completed by two different people (with different handwriting). Thus, applicants Nichols
and Terrier were not in direct competition with each other and two different interviewers could
have had two different concepts of the ratings.
The General Counsel noted in its brief that new employee Jose Cabrera, a cook (like 45
Terrier), was hired even though he received ratings of “average” in certain categories.
However, Cabrera, like Terrier, received a rating of “good” in the category of “guest service &

32 Terrier’s applicant evaluation was only partially complete. He received a rating of “good” for “guest
service & hospitality personality,” but no ratings for other categories.
JD(NY)-03-19
31
hospitality personality.” More importantly, Cabrera received a rating of “good” in seven other
categories in which Terrier was not rated. Thus, Cabrera received what appears to be a better
applicant evaluation than Terrier.
Of the new employees, other than Cabrera, the General Counsel identified server 5
Williams and utility/dishwasher Batista as applicants who should not have been hired over
predecessor employees. I do not agree. Williams received rankings of good in the important
categories of “guest service & hospitality personality” and “enthusiasm,” as well seven other
categories. As such, her applicant evaluation was significantly better than each of the alleged
discriminatees who held the position of server. Batista was a utility aide/dishwasher, and the 10
evidence does not indicate she was hired over any alleged discriminatee who held the same
position. In this case, the General Counsel’s arguments regarding disparate treatment fail
because they are based on false equivalencies.
It is true that Respondent West End did not have managers testify to the specific 15
reasons why each alleged discriminatee was not hired and the record does not contain
applicant evaluations for each one. I would have liked to hear such testimony and we are,
therefore, left with something of a vacuum that might be filled with an inference of animus.
However, unlike the General Counsel, as discussed above, I find the applicant evaluations to be
largely consistent with a legal hiring process, and these interviews were conducted in mass over 20
a year before the trial. Meanwhile, the General Counsel did not call any of the alleged
discriminatees to contest or otherwise cast doubt upon the ratings contained in their applicant
evaluations. I do not find Respondents West End’s failure, among other evidence presented by
the General Counsel, sufficient to support a prima facie case.
25
The General Counsel relies heavily on Lemay Caring Ctr., 280 NLRB 60 (1986), but that
case is distinguishable. First and foremost, the employer in Lemay Caring actually hired a
minority of the predecessor’s employees. Second, the employer in Lemay Caring made certain
unlawful 8(a)(1) statements that were far more telling of its goal to avoid successorship than any
evidence presented here by the General Counsel. Third, the record in Lemay Caring contained 30
evidence that employees were actually told they were not hired because of a manager’s “gut
feelings” and other criteria that were particularly nebulous.
Ultimately, although a refusal-to-hire violation was established with regard to Hardy, this
and other marginal evidence of animus does not go far enough to extend that violation to the 35
other allege discriminatees. I will not call it entirely far-fetched to believe that Respondents
West End expected to avoid successorship by refusing to hire the alleged discriminatees and
then discharging enough BSEs to undermine the Union’s majority (since Respondents West
End made this argument with regard to succession). However, the General Counsel did not
actually articulate this theory and inferring such a motive is more difficult to accept than an 40
inference of the unlawful motive at issue in more typical refusal-to-hire cases, such as Lemay
Caring. In my opinion, this case involves a heightened evidentiary burden, which the General
Counsel has failed to satisfy.
Accordingly, based upon the foregoing, I do not find that Respondents West End 45
violated Section 8(a)(3) and (1) of the Act by failing to hire alleged discriminatees other than
Hardy. I will, therefore, dismiss those allegations.
50
JD(NY)-03-19
32
REMEDY
Having found that Respondents Esplanade and Respondents West End have engaged
in certain unfair labor practices, I find that they must be ordered to cease and desist therefrom 5
and to take certain affirmative action designed to effectuate the policies of the Act.
The remedies of instatement and backpay are appropriate for discriminatory refusals-to-
hire, and I will order Respondents West End to provide those remedies with regard to Hardy.
FES (A Division of Thermo Power), 331 NLRB 9 (2000).10
Backpay for the unlawful refusal-to-hire Hardy shall be calculated in accordance
with F.W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in New Horizons for
the Retarded, Inc., 283 NLRB 1173 (1987), compounded daily as required in Kentucky River
Medical Center, 356 NLRB 6 (2010), enf. denied on other grounds sub.nom. Jackson Hospital 15
Corp. v. NLRB, 647 F.3d 1137 (D.C. Cir. 2011). In accordance with King Soopers, Inc., 364
NLRB No. 93 (2016), the Respondents West End shall compensate Hardy, who was unlawfully
denied employment, for search-for-work and interim employment expenses regardless of
whether those expenses exceed their her earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net backpay, with interest at the rate 20
prescribed in New Horizons, supra., compounded daily as prescribed in Kentucky River Medical
Center, supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10
(2014), backpay computations shall compensate Hardy for any adverse tax consequences of 25
receiving lump sum backpay awards, and, in accordance with AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), Respondents West End shall, within 21 days of the date the amount
of backpay is fixed either by agreement or Board order, file with the Regional Director for
Region 2 a report allocating backpay to the appropriate calendar year. The Regional Director
will then assume responsibility for transmission of the report to the Social Security 30
Administration at the appropriate time and in the appropriate manner.
Respondents West End will be ordered to recognize and bargain with the Union as the
bargaining representative of unit employees.
35
Respondents Esplanade will be ordered to promptly provide the information requested
by the Union on October 27.
Respondents West End will be ordered to post the notice attached hereto as “Appendix
A” and Respondents Esplanade will be ordered to post the notice attached hereto as “Appendix 40
B.”
CONCLUSIONS OF LAW
1. Respondents West End and Respondents Esplanade are employers engaged in 45
commerce within the meaning of Sec. 2(2), (6), and (7) of the Act.
2. United Food & Commercial Workers Union, Local 2013, is a labor organization
within the meaning of Section 2(5) of the Act.
50
JD(NY)-03-19
33
3. Respondents West End violated Section 8(a)(3) and (1) of the Act by refusing to
hire Union shop steward Trinidad Hardy because of her union position and/or activity.
4. The following unit is appropriate for purposes of collective bargaining:
5
[A]ll of its full-time and part-time employees, with respect to wages, hours and conditions
of employment, excluding executives, supervisors and guards as defined in the Labor
Management Relations Act as amended, and agrees to deal collectively only with this
Union for and on behalf of such employees. Full-time employees are employees
employed on a steady basis. Part-time employees who are call in employees and work 10
as needed.
5. Respondents West End Violated Section 8(a)(5) and (1) of the Act by refusing to
recognize and bargain with the Union as the bargaining representative of unit employees.
15
6. Respondents Esplanade violated Section 8(a)(5) and (1) of the Act by failing and
refusing to provide the Union with information it requested on October 27, 2016.
7. The violations found are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.20
8. Respondent has not otherwise violated the Act.
ORDER33
25
1. The Respondents shall CEASE AND DESIST from engaging in the following conduct:
A. Respondents West End, a joint employer, consisting of 305 West End Holding, LLC
d/b/a 305 West End Avenue Operating, LLC, New York and Ultimate Care Management
Assisted Living Management, LLC, a Division of the Engel Burman Group d/b/a Ultimate Care 30
Management, LLC, of Bohemia, New York, their offers, agents, successors, and assigns, shall
cease and desist from
(1) Refusing to hire employees because of their union position and/or activity.
35
(2) Failing and refusing to recognize and bargain in good-faith with the United Food &
Commercial Workers Union, Local 2013 (Union), as the exclusive bargaining representative of
employees in the following bargaining unit:
(A)ll of its full-time and part-time employees, with respect to wages, hours and 40
conditions of employment, excluding executives, supervisors and guards as
defined in the Labor Management Relations Act as amended, and agrees to deal
collectively only with this Union for and on behalf of such employees. Full-time
employees are employees employed on a steady basis. Part-time employees
who are call in employees and work as needed.45

33 If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed waived for all purposes.
JD(NY)-03-19
34
(3) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
B. Respondents Esplanade, a joint employer, consisting of County Agency, Inc. of 5
Brooklyn, New York and Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a
The Esplanade Hotel of New York, New York, their offers, agents, successors, and assigns,
shall cease and desist from
1) Failing or refusing to provide information to the Union that is relevant and necessary 10
to perform its duties as the exclusive collective-bargaining representative of Unit employees
employed at the New York, New York facility involved in these proceedings.
2) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.15
2. The Respondents shall take the following AFFIRMATIVE ACTION necessary to effectuate
the policies of the Act.
A. Respondents West End shall20
(1) Recognize and bargain in good-faith with the Union as the exclusive collective-
bargaining representative of Unit employees.
(2) Within 14 days from the date of this Order, offer Trinidad Hardy instatement to the 25
position for which she applied, or, if such a position no longer exists, to a substantially
equivalent position, without prejudice to her seniority or any other rights or privileges previously
enjoyed.
(3) Make Hardy whole for any loss of wages or benefits suffered as a result of the 30
unlawful refusal to hire her in the manner set forth in the remedy section of this decision.
(4) Compensate Hardy for search-for-work and interim employment expenses following
Respondents West End’s refusal to hire her regardless of whether those expenses exceed her
interim earnings.35
(5) Compensate Hardy for the adverse tax consequences, if any, of receiving a lump-
sum backpay award.
(6) Within 14 days from the date of this Order, remove from its files any reference to its 40
unlawful refusal to hire Hardy, and within 3 days thereafter, notify Hardy in writing that this has
been done and that the refusal to hire her will not be used against her in any way.
(7) 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 45
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.
50
JD(NY)-03-19
35
(8) Within 14 days after service by the Region, post at its facility in New York, New
York, the facility involved in these proceedings, copies of the attached notice marked “Appendix
A.”34 Copies of the notice, on forms provided by the Regional Director for Region 2, after being
signed by Respondents West End's authorized representative, shall be posted by Respondents
West End and maintained for 60 consecutive days in conspicuous places, including all places 5
where notices to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an intranet or an
internet site, and/or other electronic means, if Respondents West End customarily
communicates with its employees by such means. Reasonable steps shall be taken by
Respondents West End to ensure that the notices are not altered, defaced, or covered by any 10
other material. If Respondents West End has gone out of business or closed the facility
involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the
notice to all current employees and former employees employed by Respondents West End at
any time since December 5, 2016.
15
(9) Within 21 days after service by the Region, file with the Regional Director for Region
2 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. Respondents Esplanade shall20
(a) Promptly provide to the Union with information it requested on October 27, 2016.
(b) Within 14 days after service by the Region, post at its facility in New York, New
York, the facility involved in these proceedings, copies of the attached notice marked “Appendix 25
B.”35 Copies of the notice, on forms provided by the Regional Director for Region 2, after being
signed by Respondents Esplanade's authorized representative, shall be posted Respondents
Esplanade and maintained for 60 consecutive days in conspicuous places, including all places
where notices to employees are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by email, posting on an intranet or an 30
internet site, and/or other electronic means, if Respondents Esplanade customarily
communicates with its employees by such means. Reasonable steps shall be taken by
Respondents Esplanade to ensure that the notices are not altered, defaced, or covered by any
other material. If Respondents Esplanade has gone out of business, closed or sold the facility
involved in these proceedings, it shall duplicate and mail, at its own expense, a copy of the 35
notice to all current employees and former employees employed by the Respondents
Esplanade at any time since October 27, 2016.

34 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.”
35 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notices 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.”
JD(NY)-03-19
36
(c) 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 Respondents have taken to comply.
It is further ORDERED that the complaint is dismissed insofar as it alleges that the 5
Respondent unlawfully refused-to-hire employees other than Hardy, or other allegations not
specifically found herein.
10
Dated at Washington, DC. February 7, 2019
___________________________15
BENJAMIN W. GREEN
Administrative Law Judge
JD(NY)-03-19

APPENDIX A
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 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 refuse to hire you or otherwise discriminate against you because you hold a
union position or engage in union activities.
WE WILL NOT fail and refuse to recognize and bargain with the United Food & Commercial
Workers Union, Local 2013 (Union) as the representative for purposes of collective-bargaining
of employees in the following bargaining unit:
All of its full-time and part-time employees, with respect to wages, hours and
conditions of employment, excluding executives, supervisors and guards as
defined in the Labor Management Relations Act as amended, and agrees to deal
collectively only with this Union for and on behalf of such employees. Full-time
employees are employees employed on a steady basis. Part-time employees
who are call in employees and work as needed.
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 bargain in good-faith with the Union as the exclusive bargaining
representative of employees in the bargaining unit.
WE WILL, within 14 days from the date of this Order, offer instatement to Trinidad Hardy for the
job she applied for, or, if that job no longer exists, to a substantially equivalent position, without
prejudice to her seniority or any other rights or privileges previously enjoyed.
WE WILL make Hardy whole for any loss of earnings and other benefits resulting from our refusal
to hire her, less any net interim earnings, plus interest, and WE WILL also make her whole for
reasonable search-for-work and interim employment expenses, plus interest.
WE WILL compensate Hardy for the adverse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Director for Region 2, within 21 days of the
date the amount of backpay is fixed, either by agreement or Board order, a report allocating the
backpay awards to the appropriate calendar.
JD(NY)-03-19
WE WILL, within 14 days from the date of the Board's Order, remove from our files any reference
to the unlawful refusal to hire Hardy, and WE WILL, within 3 days thereafter, notify her in writing
that this has been done and that the refusal-to-hire will not be used against her in any way.
305 West End Holding, LLC d/b/a 305 West End
Avenue Operating, LLC and Ultimate Care
Management Assisted Living Management, LLC,
a Division of the Engel Burman Group d/b/a
Ultimate Care Management, LLC______________
(Employer)

Dated:_______________ By: _______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza
Suite 3614
5th Floor
New York, NY 10278
Phone: 212-264-0300
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/2–CA–188405 or
by using the QR code below. Alternatively, you can obtain a copy of the decision from the
Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (212) 264-0300.
JD(NY)-03-19
JD(NY)-03-19
APPENDIX B
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 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 fail or refuse to provide information to the United Food and Commercial Workers
Union, Local 342, AFL-CIO (Union), that is relevant and necessary to perform its duties as the
exclusive collective-bargaining representative of employees in the following bargaining unit:
All of its full-time and part-time employees, with respect to wages, hours and
conditions of employment, excluding executives, supervisors and guards as
defined in the Labor Management Relations Act as amended, and agrees to deal
collectively only with this Union for and on behalf of such employees. Full-time
employees are employees employed on a steady basis. Part-time employees
who are call in employees and work as needed.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights listed above.
WE WILL promptly provide to the Union with information it requested on October 27, 2016.
County Agency, Inc. and Esplanade Partners Ltd. d/b/a
Esplanade Venture Partnership d/b/a The Esplanade Hotel
(Employer)
Dated:_______________ By: _______________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to
enforce the National Labor Relations Act. It conducts secret-ballot elections to determine
whether employees want union representation and it investigates and remedies unfair labor
practices by employers and unions. To find out more about your rights under the Act and how
to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website:
www.nlrb.gov.
26 Federal Plaza
Suite 3614
5th Floor
New York, NY 10278
Phone: 212-264-0300
JD(NY)-03-19
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/02–CA–188405 or by using the QR code
below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board,
1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273–1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE
OFFICER, (212) 264-0300.
JD(NY)-03-19
LIST OF PERSONNEL
Predecessor Employees P
New Employees N
Predecessor Supervisor SP
New Supervisor SN
Predecessor Recreation Employee RP
Initial Complement Status BSE Hired Seperated
Aguino, Manuel P 12/5/2016
Alexander, Francisca SN 12/5/2016
Anselmo, Fernando P BSE 1/5/2016
Baez, Melanie SN 4/6/2017
Batista Rodriguez, Agustin B N 12/5/2016
Battick, James W P BSE 12/5/2016
Bellamy, Michelle P 12/5/2016
Bicic, Dzevat SN 12/5/2016
Blocker, Otto P 12/5/2016 12/12/2016
Bradford, Ida P 12/5/2016
Breaker, Michael P 12/5/2016
Brennan, Annis RP 12/5/2016
Brown, Leslie E SP 12/5/2016
Burnham, Lorraine A P 12/5/2016
Cabrera, Jose N 12/6/2016 12/7/2016
Caplan, Shelley SP 12/20/2016
Cappelli, Dawn P 12/5/2016
Campbell, Norman P 12/5/2016
Celisca, Berne SP 11/30/2016
Conway, Kelsey A N 12/5/2016 12/11/2016
De La Cruz, Milda P BSE 12/5/2016 3/1/2017
DelVillar, Elsie N 12/8/2016
Embry, Nicole RP 12/5/2016 4/11/2017
Esposito, Felicetta Pia P BSE 12/5/2016 3/24/2017
Etienne, Albert SP 12/5/2016
Fajar, Miguelina P BSE 12/5/2016 3/23/2017
Fantalina, Rimma P BSE 12/5/2016 3/23/2017
Fernandez, Carlos P BSE 12/5/2016
Fernandez, Clara RP 12/5/2016
Figueroa, Don Frank P BSE 12/5/2016 3/24/2017
Franklin, Jess RP 12/5/2016
Garcia, Danitza P 12/5/2016
Gomez, Danilda A P BSE 12/5/2016 3/23/2017
Grant, Charlene Benymon P 12/5/2016
Harpal, Sudeshkumar P BSE 12/5/2016
JD(NY)-03-19
Harrison, Stephen P 12/5/2016
Johnson, James P BSE 12/5/2016 3/23/207
Keller, Almedia RP 12/5/2016
Knight, Gregory P 12/5/2016
Korzep, Stanislaw P BSE 12/5/2016
Leon-Heras, Claudio P 12/5/2016
Levin, Michael N 12/5/2016 12/15/2016
Lind, Jonathan E N 12/5/2016 12/28/2016
Loach, Carlis R P 12/5/2016
Londea, William E P 12/5/2016
Martinez, Flor P 12/5/2016
Nartowicz, Helena P 12/5/2016 12/15/2018
Nicholls, Barbara P 12/5/2016
Oconnell, Ruth SP 12/5/2016
Peters, Hayden R P 12/5/2016
Rivera, Carmelo P 12/5/2016
Rodriguez, Cynthia P 12/5/2016
Rybicka, Sylwia P BSE 12/5/2016 1/24/2017
Salwen, Marcy SP 12/5/2016
Singer, Edwin SP 12/5/2016
Supliguicha, Maria P BSE 12/5/2016 3/23/2017
Vadi, Taylor N 12/8/2016
Valle, Lazaro P BSE 12/5/2016 1/16/2017
Williams, Deandra N 12/7/2016 4/4/2016
New Hires Retained After March 24, 2017
Adolphe Desrosiers, Marie N 1/18/2017
Bogen, Tyler N
Blackwood, Kevin N 1/5/2017
Clarke, Viviene C N 3/16/20167
Currey, Salaambia N N 12/28/20116
Dessources, Lenz N 1/4/2017
Durand, Fritz N 3/1/2017
Francillon, Kettia N 2/24/2017 4/6/2017
Joachim Desrosiers, Sabrinia N 3/1/2017
Joseph, Jean R N 1/4/2017
Leveque Philogene, Claudicie N 3/1/2017
Loggins, Robert E N 2/24/2017
Maxwell, Clarence A N 2/24/2017
Merced, Raymond L N 3/22/2017
Nooks, Georgia S N 2/12/2017
Pagan, Mercedes N 12/19/2016
Ramos, Omar N 3/1/2017
Rivera, Ismael N 1/16/2017
JD(NY)-03-19
Rosario, Natash N 12/15/2017
Simmons, Gregory S N 1/5/2017
Thomas, Stephanie N N 1/12/2016
Walters, Tasha N 12/28/2016
New Hires not Retained until March 24, 2017
Frost, Norman C N 12/28/2016 2/3/2017
Gonzalez, Julio R N 12/12/2016 12/25/2016
Marie, Javier N 2/15/2017 2/17/2017
Perry, Shatasia N 12/21/2016 1/26/2017
Serrano, Sean M N 12/15/2016 2/5/2017
Tavira Martinez, Marco A N 12/12/2016 12/14/2017
Viruet, Carmenlydia M N 12/12/2016 2/3/2017
December 5, 2016
Initial Complement
P
36
N
8
March 6, 2017
New Hires Severed 4
New Hires
Predecessor Employees Severed 5
20
Total 31 24
March 25, 2017
New Hires Severed
New Hires 2
Predecessor Employees Severed 7
Total 24 26