E.S. Sutton Realty Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 405 (N.L.R.B. 2001)

E.S. SUTTON REALTY CO. 405
E.S. Sutton Realty Co. and Local 32B–32J, Service
Employees International Union, AFL–CIO.
Case 2–CA–30365
September 28, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On February 19, 1999, Administrative Law Judge El-
eanor MacDonald issued the attached decision. The
General Counsel filed exceptions and a supporting brief.
The Respondent filed an answering brief. The General
Counsel filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
Respondent E.S. Sutton Realty Co. (Sutton) owns and
manages a building at 291 Broadway in New York City.
For many years, Sutton contracted with outside compa-
nies to provide janitorial services. In April 1997, how-
ever, Sutton abruptly ended its relationship with its last
contractor, Crisfield, and instead hired its own cleaning
employees. Initially, Crisfield had told Sutton that it
would provide “nonunion labor,” in contrast to its prede-
cessors. But Sutton had recently learned that Crisfield
intended to settle unfair labor practice charges arising out
of its actions at 291 Broadway and planned to recognize
Local 32B–32J of the Service Employees International
Union (the Union). Sutton then began hiring its own
cleaning employees before Crisfield’s contract was ter-
minated. By the time union-represented workers sought
jobs, none were left. Among the unsuccessful job seek-
ers was Marlene Connell, who had worked at 291
Broadway since 1980, most recently for Crisfield, and
Anthony Moreno, whose firing by Crisfield was among
the charges noted above.1
For the following reasons, we reverse the administra-
tive law judge and find that Sutton unlawfully refused to
consider and to hire Marlene Connell, Edwin Martinez,
Anthony Moreno, Frankie Rodriquez, and Anthony
Thompson. We also find that Sutton was a successor
employer obliged to recognize and bargain with the Un-
ion, and that by failing to do so and by changing employ-
ees’ terms and conditions of employment, it violated
Section 8(a)(5). A clear preponderance of all the rele-
vant evidence demonstrates that Sutton’s staffing process
was tainted by antiunion animus from beginning to end.
The judge did not fully address all of the inconsistencies
in the record, relying instead on witnesses whose testi-
mony, contradicted by the documentary evidence, she
herself described as inaccurate and incomplete.2

1 The charges were settled pursuant to a non-Board settlement,
which contained a nonadmissions clause and was approved by the
Regional Director on October 10, 1997.
The evidence of antiunion animus is both direct and
circumstantial. Brian Coffield, the owner of Crisfield,
testified to antiunion statements made to him by Sutton
officials Bruce Pirnat and Jeffrey Shalom when Coffield
first sought the cleaning contract for 291 Broadway in
the fall of 1995. It is not clear whether the judge credited
Coffield’s testimony or not. But even assuming that the
judge was correct in regarding Coffield’s testimony
skeptically, a view we question,3 the circumstances under
which Crisfield was engaged strongly suggest antiunion
animus. Crisfield’s predecessors were unionized compa-
nies, Sutton was in the process of ending its own collec-
tive-bargaining relationship with the Union (which repre-
sented a single, building service employee), and Crisfield
was a newly formed, nonunion company, which pro-
posed a contract offering a “firm fixed price . . . for non-
union labor only.” Crisfield’s low cost, a selling point
bound up with its nonunion status, concededly was what
attracted Sutton.
After terminating its relationship with a unionized con-
tractor (Partners Cleaning), Sutton contracted with Cris-
field, which had no employees and no cleaning experi-
ence. Crisfield, in turn, hired the workers who had been
employed by its predecessor at 291 Broadway. But Cris-
field insisted that they rescind their union membership in
writing, and it refused to recognize the Union. Cris-
field’s actions (including the discharge of long-time
worker Anthony Moreno, who ultimately applied for
work with Sutton) led to the issuance of an unfair labor
practice complaint by the Board’s General Counsel.
2 We agree with our dissenting colleague that the Board should re-
verse a judge’s credibility resolutions only in rare cases. To the extent
that our ruling entails a reversal of the judge’s credibility resolutions,
this is one of those rare cases.
3 The judge found that “Coffield’s testimony must be approached
with caution,” citing his settlement of the unfair labor practice case
described below and his active role in engineering a nonunion work
force at 291 Broadway. According to the judge, “Coffield testified in
such a manner as to shield himself from further involvement with the
Board and the Union.” As a result, she chose to “credit his testimony
only when it [was] not contradicted by other more reliable evidence.”
The judge’s rationale for doubting Coffield’s testimony is hard to
grasp. At the time of the hearing, the unfair labor practice charges
against his company had been settled, and Crisfield had no cleaning
contracts. Coffield had no clear reason to testify untruthfully in this
proceeding, nor did the judge explain how Coffield’s testimony would
further the motive she attributed to him. In contrast, the potential bias
of Shalom and Pirnat, who work for Sutton, is obvious.
336 NLRB No. 33
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 406
The Board proceeding, of course, meant the Union
might return to 291 Broadway, as Sutton knew full well.4
On behalf of Crisfield, Brian Coffield pursued a settle-
ment with the Union, keeping Jeffrey Shalom of Sutton
informed. Coffield testified that in March 1997, the
month before Sutton terminated Crisfield’s contract, Cof-
field told Shalom that he intended to recognize the Union
and asked that Sutton increase its payments to Crisfield,
to cover higher labor costs. According to Coffield, Sha-
lom not only rejected Coffield’s request, but also stated
that he did not want the Union in the building and that he
was unhappy with Coffield’s decision to settle.
It is not clear whether the judge credited Coffield with
respect to Shalom’s statements. Certainly, by the judge’s
own standard (see fn. 3, supra), Coffield should have
been credited, since his testimony on this point was “not
contradicted by other more reliable evidence.” Shalom
did not deny making the statements attributed to him.
There is some indication that the judge concluded that
Coffield changed his testimony on cross-examination and
asserted that Shalom’s statements were made after April
1997 (and so after the crucial events of this case). If this
was the judge’s conclusion, then it was clearly erroneous.
As the General Counsel points out in his brief, the record
establishes that on cross-examination, Coffield was testi-
fying about a separate, later conversation, not that he
gave a different account of his March 1997 conversation
with Shalom. The record also establishes that Shalom’s
own uncertain testimony does not contradict Coffield in
any material respect.5
After it learned of Coffield’s efforts to settle the unfair
labor practice case, Sutton decided to terminate its con-
tract with Crisfield and to perform cleaning work with its
own employees, supposedly because of Crisfield’s poor
performance and the desire to save money.6 In April
1997, Bruce Pirnat, Sutton’s agent, informed Coffield of
the imminent termination of his company and Sutton’s
decision to hire its own cleaning employees. According
to Coffield, Pirnat told him that Anderson Curtis, a union
member who had worked at 291 Broadway for many

4 Sutton itself was named as a joint-employer in the Union’s unfair
labor practice charge, although the Board’s Regional Office later con-
cluded that this status was not established.
5 The judge herself observed that “Shalom did not recall much of
some of the relevant events.” She also concluded that he did not testify
falsely. But one need not discredit Shalom to credit Coffield, since
their testimony did not conflict.
6 If Crisfield recognized and reached agreement with the Union, its
labor costs would rise, as Coffield had made clear to Shalom. As for
improving performance, Sutton placed its new employees under the
direction of a long-time worker at 291 Broadway who had no experi-
ence supervising a cleaning operation. The change was made so hastily
that the new employees lacked cleaning supplies, hardly a sign that
improving services to the building’s tenants was an overriding concern.
years, would be retained as supervisor. Curtis’s supervi-
sory status, Pirnat said, would avoid any “concern of the
union in the building.” Pirnat never squarely denied
making this statement, which provides further evidence
of Sutton’s antiunion animus. Again, by the judge’s own
standard, Coffield’s uncontradicted testimony on this
point should have been credited.
There is ample evidence, then, of Sutton’s antiunion
animus. The circumstances of Crisfield’s hiring were
suspicious. The circumstances of Crisfield’s firing were
suspicious. The statements of Shalom and Pirnat were
damning. Moreover, Sutton’s efforts to insulate itself
from a finding of antiunion animus had the opposite ef-
fect.
As we will explain, the cornerstone of Sutton’s case
was Anderson Curtis and his role in the process of hiring
Sutton’s new cleaning employees. Presumably unlike
Sutton, Curtis had no motive to unlawfully exclude un-
ion-represented employees. The essential elements of
Sutton’s case, offered primarily through Curtis’s testi-
mony, were: (1) that Curtis was hired on or about April
17, 1997, not before; (2) that Curtis was hired after Cris-
field’s contract was terminated and after Crisfield em-
ployees had left 291 Broadway; (3) that after being hired,
Curtis alone hired the rest of Sutton’s cleaning employ-
ees; and (4) that Curtis tried, but was unable, to reach
former Crisfield employees Connell and Moreno to offer
them work.
The problem, for Sutton, is that Curtis’s testimony was
inconsistent with the record evidence, although the judge
mistakenly concluded that this was immaterial. Sutton’s
payroll records show indisputably: that Curtis was hired
on April 8 (before the Crisfield contract was terminated),
that two workers were hired by Sutton on April 7 (the
day before Curtis was hired), and that two other employ-
ees were hired at about the same time Curtis was (also
before the Crisfield contract was terminated). The plain
fact is that Sutton hired its new work force while Cris-
field and its employees were still working at the building.
Thus, there should have been no difficulty in hiring the
incumbent workers, had Sutton’s motives been pure.
Curtis’s claim to the contrary—particularly in light of his
demonstrably inaccurate testimony concerning the timing
of the hiring process—cannot be accepted. The inescap-
able conclusion, then, is that Sutton took care to ensure
that union-represented employees would not be hired
after Crisfield was terminated.
Portraying Curtis as solely responsible for hiring is
simply a ruse to escape liability. Sutton insists that it was
Curtis, and Curtis alone, who made the crucial hiring
decisions in this case and that there can be no question of
Curtis’s honest motives. The judge accepted this notion
E.S. SUTTON REALTY CO. 407
and specifically found that Curtis was a truthful witness,
despite acknowledging that his testimony was repeatedly
inaccurate. Unlike Shalom, Curtis had no failure of
memory. He testified confidently about how and when
he was hired by Sutton, about when he hired additional
employees, and about his efforts to reach the union-
represented workers who were not hired. Yet Sutton’s
own records completely contradict Curtis’s account.
Following notification letters of April 10 and 15, Sut-
ton terminated Crisfield effective the night of April 15,
1997. Curtis testified, without equivocation and in de-
tail, that he had no advance knowledge of Crisfield’s
termination and that he was hired by Sutton on April 17,
soon after he arrived at work to find Crisfield and its
employees gone.7 In fact (as mentioned above), Sutton’s
records demonstrate that Curtis first filled out a payroll
form on April 8, before Crisfield was terminated. Curtis
testified further that after Sutton hired him, he hired the
remainder of Sutton’s cleaning employees. In fact, Sut-
ton’s records show that two of the new workers (Derrell
Cora and Terry Dixon) signed payroll forms on April 7.
These workers were hired before Crisfield was termi-
nated, and before Curtis himself was hired by Sutton,
whether one credits Curtis’s testimony as to his hiring or,
better, relies on Sutton’s payroll records. There is only
one reasonable inference: Sutton, not Curtis, hired those
workers, just as it hired Curtis.
As the General Counsel demonstrates in his brief, Cur-
tis’s testimony with respect to the hiring dates of the re-
maining cleaning employees similarly is contradicted by
Sutton’s payroll records. Curtis testified that he was the
only cleaning employee at 291 Broadway for the first
week following Crisfield’s termination and that he and
his brother (Harry Curtis Jr.) were the only two cleaning
employees until sometime in late May 1997. This simply
was not the case. The documents establish that the em-
ployees who composed Sutton’s initial in-house com-
plement signed their W-4 and I-9 payroll forms on dates
between April 7 and 21, 1997.8 It is undisputed that once

7 Curtis, who worked from midnight to 8 a.m., stated that he reported
to work shortly before midnight on April 16, and “they was, all the
equipment was gone, there wasn’t nothing in the building.” He stated
further that he called a coworker and asked, “[W]hat happened to all
the people, what about us . . . what about me . . . I don’t know what this
is, nobody said anything to me. You know, I come in, all the equip-
ment is gone, just like that you know.” The next day, Curtis spoke with
Bruce Pirnat. Curtis testified, “Well, I asked him I said, what am I
supposed to do now. I’ve been in the building for almost thirty years, I
said [Crisfield] disappeared, all the equipment is gone. [Pirnat] said, I
suggest that you go down to the office and talk with [Jeffrey Shalom].”
8 Employee Derrell Cora signed his W–4 and I–9 forms on April 7
and started working on April 25. Terry Dixon signed his W–4 on April
7 and his I–9 on April 10, and began working on April 16. Anderson
Curtis and his brother Harry Curtis, Jr. signed their W–4 forms on April
the forms were accepted, the applicants were considered
hired.
The judge herself acknowledged that “Curtis’ recollec-
tion about the actual dates when employees began work
was not accurate and tended to be shifting.” She de-
scribed Shalom’s recollection about Curtis’s hiring as
“[c]learly . . . not complete.” Yet she found that it was
Curtis who was responsible for hiring Sutton’s cleaning
employees—including, inexplicably, the two employees
who were hired before he was. The judge also relied on
Curtis’s testimony that within a few days after his hiring,
he tried unsuccessfully to reach former Crisfield employ-
ees Connell and Moreno to offer them work.
If Curtis’s testimony about the date of his own hiring
(April 17) is credited, or if Shalom’s two prehearing affi-
davits are accepted (there Shalom swore that Curtis was
hired on April 16), then Sutton’s defense collapses. All
but one of Sutton’s new cleaning employees were hired
before April 17, presumably by someone at Sutton other
than Curtis.
Recognizing the problems posed by Sutton’s payroll
records, the judge did not accept this part of Curtis’s ac-
count. Instead, she reasoned that Curtis must have been
hired in early April, before Crisfield’s termination, and
that his own efforts to seek out Crisfield employees be-
gan then. That Curtis’s vivid testimony about his hiring
was inaccurate, by the judge’s own reckoning, should
have given her pause about Curtis’s credibility in gen-
eral.9 It did not, and she accepted his testimony that he
tried to contact Connell and Moreno while there were
still job openings.
But even the judge’s reconstruction of events, in the
face of Curtis’s inaccurate testimony, cannot lead to the
ultimate result she reached here. Had Curtis been hired
in early April (before Crisfield’s contract was termi-
nated) and had he promptly sought to hire Crisfield em-
ployees then, there should have been no difficulty in
reaching and retaining those workers, since they were

8 and their I–9 forms on April 11. Victor Valdez signed his W–4 form
on April 9, but his I–9 is not dated and his start date was not provided.
Orfa Vasquez signed his W–4 and I–9 forms on April 12 and started
working on April 16. Finally, Douglas Gittens III signed his W–4 on
April 21 and his I–9 on May 28.
9 See Granite Construction Co., 330 NLRB 205, 208 fn. 11 (1999)
(administrative law judge erred in rejecting significance of documen-
tary evidence, based on conclusion that witnesses testified honestly
about their beliefs as to events). As the Board has pointed out, the de-
meanor of a witness cannot be dispositive when his testimony is incon-
sistent with “the weight of the evidence, established or admitted facts,
inherent probabilities, and reasonable inferences drawn from the record
as a whole.” Humes Electric, Inc., 263 NLRB 1238 (1982) (footnote
omitted). Here, the judge’s reconstruction of the evidence is based at
once on the rejection of a key aspect of Curtis’s testimony and on the
determination that he was truthful.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 408
still working at 291 Broadway. Curtis could easily have
left word at the building for Connell and her coworkers
when they arrived for their shifts. Alternatively, Curtis
could have contacted the Union to get in touch with
them. He did neither. Instead, after Crisfield was termi-
nated, the incumbent employees were terminated, and
Connell and Moreno found themselves shuttled between
Sutton officials Pirnat and Shalom, in a futile attempt to
win work after Sutton had already completed its hiring.
That was no accident. The evidence here compels the
conclusion that Sutton took steps to ensure that incum-
bent cleaning workers could not make timely applica-
tions for work as in-house employees, in order to avoid
hiring union labor. This violated Section 8(a)(3) and (1).
Daufuskie Island Club & Resort, 328 NLRB 415 (1999),
enfd. mem. sub nom. Operating Engineers Local 465 v.
NLRB, 221 F.3d 196 (D.C. Cir. 2000); Systems Manage-
ment, Inc., 292 NLRB 1075 (1989), enfd. in relevant part
901 F.2d 297 (3d Cir. 1990); and Service Operations
Systems, 272 NLRB 1033 (1984). See also Love’s Bar-
becue Restaurant No. 62, 245 NLRB 78, 82 fn. 10
(1979), enfd. in relevant part sub nom. Kallman v. NLRB,
640 F.2d 1094 (9th Cir. 1981). The record establishes,
and we find, that the number of positions at the start up
of the Respondent’s in-house cleaning operation was
equal to or exceeded the number of discriminatees. Hav-
ing worked in the building for years prior to the Respon-
dent’s unlawful conduct, the discriminatees had the ex-
perience and training relevant to the positions, and anti-
union animus was a motivating factor in the decision not
to hire them.
Just as Crisfield unlawfully sought to avoid successor-
ship status, despite hiring the employees of its unionized
predecessor, so Sutton unlawfully sought to avoid be-
coming Crisfield’s successor (and dealing again with the
Union it had left behind when it hired Crisfield). It is
clear that Sutton is a successor to Crisfield, insofar as it
is providing cleaning services at 291 Broadway using
similar machines and supplies and similarly skilled em-
ployees. NLRB v. Burns Security Services, 406 U.S. 272
(1972). Because Sutton discriminatorily refused to hire
the incumbents, it is presumed that substantially all of
them would have been retained. Smith & Johnson Con-
struction Co., 324 NLRB 970 (1997). In these circum-
stances, Sutton was obligated to recognize and bargain
with the Union, and was not free to unilaterally establish
initial terms and conditions of employment anymore than
its predecessor was free to do so. By failing to recognize
and bargain with the Union, Sutton violated Section
8(a)(5) and (1). Galloway School Lines, 321 NLRB
1422 (1996).
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act. Having found that
there were sufficient positions available at the com-
mencement of the Respondent’s operations, that the dis-
criminatees were qualified for the positions, and that the
Respondent discriminatorily failed and refused to con-
sider and hire them in order to avoid successorship
status, we shall order the Respondent to offer Connell,
Martinez, Moreno, Rodriquez, and Thompson immediate
and full employment, without prejudice to their seniority
and other rights previously enjoyed, discharging if neces-
sary any employees hired in their place. We shall also
order that these employees be made whole for any losses
of earnings and benefits they suffered as a result of the
discrimination against them in the manner prescribed in
Abilities & Goodwill, Inc., 241 NLRB 27 (1979); and F.
W. Woolworth Co., 90 NLRB 289 (1950), with interest
as described in New Horizons for the Retarded, 283
NLRB 1173 (1987).
We shall, inter alia, enter an affirmative bargaining or-
der which requires bargaining at least for a reasonable
period of time. We find, for the reasons fully set forth in
Caterair International, 322 NLRB 64 (1996), that an
affirmative bargaining order is warranted in this case as a
remedy for the Respondent’s unlawful failure to recog-
nize and bargain with the Union. We adhere to the view,
reaffirmed by the Board in that case, that an affirmative
bargaining order is “the traditional, appropriate remedy
for an 8(a)(5) refusal to bargain with the lawful collec-
tive-bargaining representative of an appropriate unit of
employees.” Id. at 68.
In several cases, however, the United States Court of
Appeals for the District of Columbia Circuit has required
that the Board justify, on the facts of each case, the im-
position of such an order. See, e.g., Vincent Industrial
Plastics, Inc. v. NLRB, 209 F.3d 727, 734 (D.C. 2000);
Lee Lumber & Bldg. Material Corp. v. NLRB, 117 F.3d
1454, 1462 (D.C. Cir. 1997); Exxel/Atmos, Inc. v. NLRB,
28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, the
court stated that an affirmative bargaining order “must be
justified by a reasoned analysis that includes an explicit
balancing of three considerations: (1) the employees’
Section 7 rights; (2) whether other purposes of the Act
override the rights of employees to choose their bargain-
ing representatives; and (3) whether alternative remedies
are adequate to remedy the violations of the Act.” 209
F.3d at 738.
E.S. SUTTON REALTY CO. 409
We respectfully disagree with the court’s requirement,
for the reasons set forth in Caterair.10 Nevertheless, we
have examined the particular facts in this case as the
court requires, and we find that a balancing of the three
factors warrants an affirmative bargaining order.11
(1) An affirmative bargaining order in this case vindi-
cates the Section 7 rights of the unit employees who were
denied the benefits of collective bargaining by the Re-
spondent’s unlawful failure to recognize and bargain
with the Union. At the same time, an affirmative bar-
gaining order does not unduly prejudice the Section 7
rights of employees who may oppose continued union
representation because its attendant status is temporary.
Moreover, ordering the successor employer to bargain
for a reasonable period of time with the incumbent union,
as in this case, serves “to protect the newly established
bargaining relationship and the previously expressed
majority choice, taking into account that the stresses of
the organizational transition may have shaken some of
the support the union previously enjoyed.” St. Elizabeth
Manor, 329 NLRB 341, 345 (1999).12 In successorship
situations, the employees’ anxiety about their status with
the successor employer could lead to their disaffection
before the union has the opportunity to demonstrate its
continued effectiveness, and could tempt a reluctant suc-
cessor employer to postpone its statutory bargaining ob-
ligation indefinitely. Id. at 343. To require bargaining to
continue only for a reasonable period of time, not in per-
petuity, fosters industrial peace and stability and will
ensure that the bargaining relationship established be-
tween the Respondent and the Union will have a fair
chance to succeed. Id. at 346.
(2) An affirmative bargaining order also serves the im-
portant policies of the Act to foster meaningful collective
bargaining and industrial peace. The temporary decerti-
fication bar inherent in this order removes the Respon-
dent’s incentive to further delay bargaining or to engage
in any other conduct that would further undercut em-

10 Chairman Hurtgen does not disagree with the court.
11 Member Liebman agrees, for the reasons stated in the Board’s de-
cision, that an affirmative bargaining order is warranted here. She
believes, however, that the analysis required by the District of Colum-
bia addresses concerns raised when a union’s majority support has been
challenged. Because no such challenge has been made here, the Board’s
analysis is not mandated, even to comply with the court’s requirement.
An affirmative bargaining order, rather, is the necessary remedy in
cases like this one, where a successor employer has never recognized
an incumbent union and has discriminated against incumbent employ-
ees based on their union affiliation.
12 Chairman Hurtgen does not subscribe to the Board’s decision in
St. Elizabeth Manor, from which he dissented. Although he disagrees
with the successor bar doctrine enunciated in that case, inasmuch as he
joins in finding that the Respondent was obligated to bargain with the
Union, Chairman Hurtgen agrees with the instant bargaining order.
ployee support for the Union. It also ensures that the
Union will not be pressured, by the possibility of a decer-
tification petition, to achieve immediate results at the
bargaining table following the Board’s resolution of its
unfair labor practice charges and issuance of a cease-and-
desist order. Providing this temporary period of insu-
lated bargaining will also afford employees a fair oppor-
tunity to assess the Union’s performance in an atmos-
phere free of the Respondent’s unlawful conduct.
(3) A cease-and-desist order, alone, would be inade-
quate to remedy the Respondent’s refusal to bargain with
the Union in these circumstances because it would permit
a decertification petition to be filed before the Respon-
dent had afforded the employees a reasonable time to
regroup and bargain through their chosen representative
in an effort to reach a collective-bargaining agreement.
Indeed, permitting a decertification petition to be filed
immediately might very well allow the Respondent to
profit from its own unlawful conduct. We find that these
circumstances outweigh the temporary impact the af-
firmative bargaining order will have on the rights of em-
ployees who oppose continued representation by the Un-
ion.
For all of the foregoing reasons, we find that an af-
firmative bargaining order with its temporary decertifica-
tion bar is necessary to fully remedy the Respondent’s
unlawful refusal to bargain with the Union in this case.
ORDER
The National Labor Relations Board orders that the
Respondent, E.S. Sutton Realty Co., New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire or consider for hire any employee
for being a member of, or supporting, Local 32B–32J,
Service Employees International Union, AFL–CIO, or
any other labor organization.
(b) Refusing to meet and bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of employees in the following appropriate unit:

All handypersons, forepersons, and others, including
elevator operators, porters, porter/watchmen, cleaning
persons, matrons, security porters, fire safety directors
and all other service employees employed at 291
Broadway.

(c) Unilaterally changing unit employees’ terms and
conditions of employment.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 410
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole employees Marlene Connell, Edwin
Martinez, Anthony Moreno, Frankie Rodriquez, and An-
thony Thompson for any losses they may have suffered
by reason of the discriminatory refusal to hire them.
(b) Within 14 days from the date of this Order, offer
Marlene Connell, Edwin Martinez, Anthony Moreno,
Frankie Rodriquez, and Anthony Thompson immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges previously enjoyed.
(c) Within 14 days from the date of this Order, on re-
quest of the Union, rescind the April 1997 unilateral
changes in unit employees’ terms and conditions of em-
ployment.
(d) On request, bargain in good faith with the Union as
the exclusive collective-bargaining representative of unit
employees with respect to wages, hours, and other terms
and conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(e) 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 desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(f) Within 14 days after service by the Region, post at
its building at 291 Broadway, New York, New York,
copies of the attached notice marked “Appendix.”13
Copies of the notice, on forms provided by the Regional
Director for Region 2, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a

13 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since April 1, 1997.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to com-
ply.

MEMBER WALSH, dissenting.
Contrary to my colleagues, I would not reverse the
judge’s considered assessment of the credibility of
Anderson Curtis. Rather, I would affirm the judge’s
credibility resolutions and would adopt her recommenda-
tion to dismiss the complaint.
The judge watched and listened to Curtis testify. She
concluded that he was a truthful witness. She believed
that he testified without guile, and she was convinced
that he would not lie under oath. She particularly found
that although Curtis did not have a good recall of dates,
he testified accurately as far as his recollection went.
Finally, she credited Curtis that he alone was responsible
for the Respondent’s hiring. In this regard, she credited
Curtis, a 31-year member of the Union, that he asked
several tenants to give alleged discriminatee and fellow
union member Anthony Moreno a message that Curtis
was beginning to hire a cleaning staff. Also, the judge
found very convincing Curtis’ testimony that he left a
message for alleged discriminatee and fellow union
member Marlene Connell when he began hiring.
My colleagues would reverse these considered, articu-
lated, demeanor-based credibility resolutions on the
grounds that Curtis’ testimony at the hearing about when
he was hired by the Respondent, when he was given au-
thority in turn to hire other cleaning employees, and
when he actually hired them, is inconsistent with the
dates on various employment forms in the record. But in
believing Curtis’ testimonial account of the events in
question, the judge was fully aware of and took into ac-
count those inconsistencies. She found that his recollec-
tion about the actual dates when employees began work
was inaccurate and tended to shift. Thus, she found that
Curtis obviously forgot that he had met with Respondent
officials to discuss interviewing and hiring a cleaning
staff before the Respondent formally terminated its con-
tractual relationship with Crisfield. But the judge never-
theless found that Curtis was consistent in his testimony
about calling alleged discriminatees Moreno and Connell
about possible jobs with the Respondent.
We cannot seat ourselves next to a judge at a hearing.
We cannot watch and listen to witnesses testify. We
must rely on a judge’s assessment of the credibility of
witnesses, and the judge’s balancing of all of the many
E.S. SUTTON REALTY CO. 411
factors at work in deciding whether to believe or disbe-
lieve witnesses. The Supreme Court has firmly estab-
lished the deference due to an administrative law judge’s
findings, particularly with respect to credibility. In Uni-
versal Camera Corp. v. NLRB, 340 U.S. 474, 496 (1951),
the Court stated:

The “substantial evidence” standard is not modified in
any way when the Board and its examiner disagree. We
intend only to recognize that evidence supporting a
conclusion may be less substantial when an impartial,
experienced examiner who has observed the witnesses
and lived with the case has drawn conclusions different
from the Board’s than when he had reached the same
conclusion. The findings of the examiner are to be con-
sidered along with the consistency and inherent prob-
ability of testimony. The significance of his report of
course, depends largely on the importance of credibility
in the particular case.

In Ewing v. NLRB, 732 F.2d 1117 (2d Cir. 1984), in
language applicable to the Board in reviewing an admin-
istrative law judge’s credibility resolutions, the court
said:

It is the task of trial judges to separate factual wheat
from evidentiary chaff, and appellate courts must ac-
cord great deference to these determinations. The temp-
tation to displace the trial court’s judgments with our
own is often strong, but the integrity of the decision-
making process requires that we do so only in cases of
clear error. Fed.R.Civ.P. 52(a). The same policies apply
in the administrative context when decisions of the
finder of fact are brought under review.

In my view, it is not sound administrative policy to re-
sift through the facts that the judge has already thor-
oughly considered, as my colleagues have done, and, on
the basis of that re-sifting, to reverse the judge’s credibil-
ity resolutions. Such appellate second-guessing does not
give proper deference to our administrative law judges,
and it will ultimately cause the appellate courts to accord
even less deference to the Board’s decisions. Even if I
had a suspicion that a decision may not be exactly right, I
would much rather affirm that decision, if it was based
on thoroughly considered credibility resolutions, than to
second-guess the judge and to risk the possibility that the
courts will accord less deference to our decisions. To
borrow from the standard applied in the Second Circuit, I
would not reverse a judge’s decision to credit a witness
unless that witness’ testimony was hopelessly incredible
or flatly contradicted either by the law of nature or un-
disputed documentary testimony. Beverly Enterprises v.
NLRB, 139 F.3d 135, 142 (1998); Kinney Drugs v.
NLRB, 74 F.3d 1419, 1427 (1996). Notwithstanding the
failure of Curtis’ testimony to match the dates on the
employment documents in question, I cannot find that
Curtis’ testimony, on the key facts on which the judge’s
decision was based and on which she credited him, failed
either one of those tests. Thus, unlike my colleagues, I
would not reverse the judge’s credibility resolutions and
I would adopt the judge’s decision.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to hire or consider for hire any
employees for being a member of, or supporting, Local
32B–32J, Service Employees International Union, AFL–
CIO, or any other labor organization.
WE WILL NOT refuse to meet and bargain in good
faith with the Union as the exclusive collective-
bargaining representative of employees in the following
appropriate unit:

All handypersons, forepersons, and others, including
elevator operators, porters, porter/watchmen, cleaning
persons, matrons, security porters, fire safety directors
and all other service employees employed at 291
Broadway.

WE WILL NOT unilaterally change your terms and
conditions of employment.
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 make whole employees Marlene Connell,
Edwin Martinez, Anthony Moreno, Frankie Rodriquez,
and Anthony Thompson for any losses they may have
suffered by reason of the discriminatory refusal to hire
them.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 412
WE WILL, within 14 days from the date of this Order,
offer Marlene Connell, Edwin Martinez, Anthony Mo-
reno, Frankie Rodriquez, and Anthony Thompson imme-
diate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed.
WE WILL, within 14 days from the date of this Order,
on request of the Union, rescind the April 1997 unilateral
changes in your terms and conditions of employment.
WE WILL, on request, bargain in good faith with the
Union as the exclusive collective-bargaining representa-
tive of our employees in the unit described above with
respect to wages, hours, and other terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.

E.S. SUTTON REALTY CO.

Bert Pearlstone, Esq., for the General Counsel
Robert l. Gosseen, Esq. (Gallagher Gosseen Faller Kaplan &
Crowley), of New York, New York, for the Respondent.
Ira A. Sturm, Esq. (Raab & Sturm, LLP), of New York, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge.
This case was tried in New York, New York, on May 27 and
28, 1998. The complaint alleges that in mid-April, 1997, Re-
spondent, in violation of Section 8(a)(1), (3), and (5) of the Act,
failed to consider for employment and failed to hire certain
employees because they were represented by the Union and that
Respondent refused to bargain with the Union. Respondent
denies that it has engaged in any violations of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent in August 1998, I
make the following1
FINDINGS OF FACT
I. JURISDICTION
Respondent, E.S. Sutton Co., a corporation with an office at
1407 Broadway, New York, New York, is in the business of
managing office buildings, including a building located at 291
Broadway, New York, New York. The parties agree, and I find,
that Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6) and (7) of the Act. Crisfield, a
New York State corporation, with an office at 19 Glendale
Road, Harrison, New York, was engaged in the business of
providing janitorial services to commercial customers, includ-
ing a building located at 291 Broadway, New York, New York.
The parties agree, and I find, that Crisfield was at all material

1 The record is hereby corrected so that at page 205 at lines 16 and
18, Mr. Sturm is speaking and not Mr. Pearlstone.
times an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. Partners, Inc., a corpora-
tion with an office at 505 Eighth Avenue, New York, New
York, is in the business of providing janitorial services to
commercial customers. The parties agree, and I find, that Local
32B–32J, Service Employees International Union, AFL–CIO is
a labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
For at least 15 years, Respondent E.S. Sutton Realty Co. has
owned and managed through various arms of its corporate iden-
tity a building at 291 Broadway in New York City.2 As manag-
ing agent, Sutton contracted with various companies to provide
cleaning services for 291 Broadway. These contractors had
collective bargaining agreements with Local 32B–32J. In 1995,
the cleaning contractor at 291 Broadway was a company named
Partners, Inc. The testimony shows that Sutton was dissatisfied
with the quality of the service provided by Partners and that it
wished to save money on the cost of its cleaning service.
Respondent admits that from September 1995 until on or
about December 31, 1995, the Union was the exclusive collec-
tive-bargaining representative of the unit employed by Partners
at 291 Broadway and that the Union had been recognized by
Partners. The recognition was embodied in a collective-
bargaining agreement in effect from January 1, 1993, through
December 31, 1995. At all times until January 2, 1996, the
Union was the exclusive collective bargaining representative of
the employees of Partners in the following unit:

All handypersons, forepersons, and others, including elevator
operators, porters, porter/watchmen, cleaning persons, ma-
trons, security porters, fire safety directors and all other ser-
vice employees employed at 291 Broadway.

E.S. Sutton received a solicitation to provide cleaning ser-
vices from Crisfield, a company newly formed by Brian Cof-
field and Phil Cristiano.3 Coffield testified that prior to forming
Crisfield, he had run the all-night cleaning at the Javits Conven-
tion Center for 2 years and that he had managed the cleaning in
several buildings in New Jersey for AT&T. In the fall of 1995,
Coffield had left his business card at various buildings in lower
Manhattan, including 291 Broadway, to see whether any of
them might be in need of cleaning services.
Coffield’s testimony about how he entered into a contract
with Sutton was changing and inconsistent. Under direct ques-
tioning, Coffield testified that he walked into the building and
met with Bruce Pirnat, the chief engineer and property manager
of 291 Broadway.4 Pirnat told him that Sutton was unhappy
with the cleaning contractor’s performance and wanted to make
a change. Pirnat said that Sutton was looking for a new com-
2 The building is owned by 291 Broadway Realty Associates, one of
the affiliated Sutton companies.
3 Coffield testified that he was the owner of Crisfield. Cristiano is
named as the vice president on Crisfield’s documents. The record
shows that Coffield and Cristiano had other companies, and/or used the
names of other companies.
4 Pirnat is an agent and supervisor of Respondent.
E.S. SUTTON REALTY CO. 413
pany and was no longer interested in using the Union. Coffield
testified that he put together a proposal and in mid-December,
1995 he went to the Sutton office at 1407 Broadway to discuss
it with Jeff Shalom, Sutton’s controller and director of real
estate management.5 Coffield spoke about the service he would
provide, and Shalom remarked that he was looking forward to
changing the staff because the tenants were not happy with the
cleaning services in the building. Shalom also stated that he
was looking forward to not dealing with the Union. According
to Coffield, Shalom said that Sutton did not want the Union in
the building any more. Shalom told Coffield that Sutton used to
employ a security guard in the building who belonged to Local
32B. When this person left to join the police force, he was re-
placed with a nonunion employee. Shalom told Coffield that his
building contract with the Union would expire on December
31, 1995.6
Although Coffield had testified in response to General Coun-
sel’s questioning on direct that he had discussed Sutton’s wish
to change to a nonunion contractor with Pirnat before he sub-
mitted his bid to Shalom, Coffield was not sure about this when
questioned on direct by Counsel for the Charging Party. After
testifying at length about the circumstances under which he
submitted a bid to Sutton, Coffield was no longer sure whether
he had actually met Pirnat before he prepared his bid. Coffield
did recall that he presented a proposed contract to Shalom. The
document dated November 10, 1995, had been prepared with
the assistance of people Coffield knew and without any partici-
pation by Sutton.7 The proposed contract provided that Cris-
field would provide cleaning services for $13,860 per month
and that “this firm fixed price is for non-union labor only.”
Coffield testified that he used this language to insure that he
would receive more money if he was forced into using a union.
But Coffield did not tell Shalom that if his employees joined a
union he wanted to come back to Sutton for more money. Cof-
field testified that he told Shalom that he would go in with a
non-union workforce.
Chief engineer Pirnat has been employed by 291 Broadway
Realty Associates for 12 or 13 years.8 Pirnat is responsible for
the maintenance of the various systems of the building at 291
Broadway. His hours are 7:30 a.m. to 3:30 p.m., Monday
through Saturday. Another engineer works from 10 a.m. to 6
p.m. Pirnat is not the superintendent of the building and he has
never supervised the cleaning personnel nor is he responsible
for any aspect of the cleaning services. Pirnat recalled that he
met Coffield when the latter came into the building to see
whether he could get the cleaning business. According to
Pirnat, many people walk into the building looking for business
of one sort or another. Pirnat is not responsible for the build-
ing’s business, but he directed Coffield to Shalom at the E.S.
Sutton office. Pirnat told Coffield that it was a good time to

5 Shalom is an agent and supervisor of Respondent.
6 This collective-bargaining agreement covered any workers em-
ployed by 291 Broadway directly. It was different from the contract
that covered employees of the cleaning service.
7 Coffield’s testimony about who prepared the contract was vague;
he was not eager to recall whom among his associates or acquaintances
had helped him with the language.
8 Pirnat is a member of Local 94 of the Operating Engineers.
submit a proposal because there were complaints about the
current cleaning company and the Suttons were thinking of
changing. Coffield informed Pirnat that he had another job on
Greenwich Street and that he had once cleaned the Javits Cen-
ter. Pirnat denied discussing the cost of cleaning or the Suttons’
strategy with Coffield. However, Pirnat acknowledged that
Respondent was always looking for ways to save money at the
building.
Shalom testified that he spoke to Coffield and Cristiano
about cleaning 291 Broadway. Shalom recalled that a represen-
tative of Crisfield called him to solicit the business. At one
point, Shalom testified that he could not recall when he met
with Coffield and Cristiano, but later he stated that he met with
them about November 10, 1995. Shalom testified that the two
men promised better cleaning for less money. (Sutton paid
Partners, Inc., $22,150 per month and Crisfield proposed to
clean the building for a monthly price of $13,860.) Eventually,
Crisfield sent a proposed contract to Shalom and Shalom made
some changes on the document in his own hand having to do
with extra work, submission of invoices and cancellation. Sha-
lom denied discussing with Coffield and Cristiano the persons
to be employed by Crisfield. The contract between E.S. Sutton
and Crisfield does not indicate when it was signed. By its
terms, it commenced on January 1, 1996 and had a term of two
years. The contract provided that Sutton had the right to termi-
nate Crisfield’s services upon 7 days notice.
Shalom testified that when E.S. Sutton purchased the build-
ing at 291 Broadway the company was required to assume the
Local 3213–32J contract for building employees. By the fall of
1995, the building had only one employee in the Local 3213–
32J unit.9 On November 9, 1995, Respondent withdrew from
the multi-employer bargaining for a successor contract. On
November 30, Respondent withdrew recognition from the Un-
ion as the representative of its single remaining employee.
Coffield testified that he began cleaning 291 Broadway on
January 2, 1996. Upon his arrival at the building that night, he
met with Pirnat who gave him the keys to the offices. Coffield
had arranged for a number of workers to meet him at the build-
ing. However, when he walked into the lobby the former Part-
ners employees were waiting for him and they offered to con-
tinue working as cleaners in the building. Coffield told the em-
ployees that he was a nonunion contractor, that he would only
pay $7 per hour, much less than their current wages, and that he
did not currently give any benefits although he would find out
about offering benefits through Local 2.10 Coffield was sur-
prised that the employees would work for such low pay, but he
told the employees that they were welcome to stay. He had a
document prepared for the employees to sign which provided
that employees who agreed to work for $7 per hour rescind
their membership in 32B–32J and will join and become active
members of Local 2.11 The document falsely informed employ-
ees that Crisfield had a collective-bargaining agreement with
9 The record shows that the remaining employee was a lobby starter
who provided security.
10 Crisfield had no relationship with Local 2, but Coffield had read
about that union in the newspaper.
11 Coffield testified that he did not consult anyone from Sutton con-
cerning the preparation of this document.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 414
Local 2. All of the employees signed the document. Then,
Coffield instructed the employees to clean the building accord-
ing to their usual practice.
The former employees of Partners, Inc., were all members of
Local 32B–32J. They included:

Dionisio Arismendi
Marlene Connell
Anderson Curtis
Anthony Moreno
Elena Radovic

Marlene Connell testified that she had worked at 291
Broadway for 15 years cleaning offices from 5 to 11 p.m. She
said she knew Pirnat because she obtained the keys to the of-
fices from him if she came to work early. Connell was obvi-
ously prepared to testify to a number of things, which she did
not clearly understand or recollect. After much prompting from
counsel for the General Counsel, Connell testified that Pirnat
told her “he was trying to get their union members because
Curtis was getting six weeks vacation and he was getting too
much.” This testimony is incomprehensible. In response to
leading questions by counsel for the General Counsel, Connell
testified that Pirnat called her a snitch. Connell was unable to
recall when this exchange occurred. In response to leading
questions from counsel for the Charging Party, Connell eventu-
ally recalled that the conversation with Pirnat took place in
January 1997. I shall not credit this testimony because I am
convinced that Connell had no real recollection of what she was
saying. Connell testified that she and the other cleaning em-
ployees went to the Union and told a representative that they
had been fired by Partners, Inc. The representative instructed
the union members to go to work for the new company, signing
whatever papers they were required to sign because the Union
was going on strike. When Connell arrived at the building on
January 2, 1996, she met Coffield and a Crisfield supervisor
named Willie Lopez. Coffield told the employees that their
wages would be $7 per hour with no benefits. Connell informed
Coffield that she had a medical condition requiring doctor vis-
its, but Coffield just shrugged. Coffield said he was not affili-
ated with Local 32B–32J; he had his own union, Local 2. After
3 months probation, the employees would be in Local 2. Con-
nell signed a document presented by Coffield and she began
cleaning the offices she had cleaned for Partners without any
change in her routine.
Anthony Moreno testified that he had spent 13 years clean-
ing 291 Broadway for a number of contractors including Part-
ners, Inc. He was a security maintainer, watching the lobby,
bringing down the garbage at night and doing related cleaning.
He worked from 5 to 10:30 p.m., 6 days per week. Moreno said
that he had daily contact with Pirnat: Moreno came in to work
early or Pirnat stayed late at the building and the two men saw
each other if there were weekend emergencies at the building.
Moreno is a bus operator for the New York City Transit sys-
tem. At the time of the material events herein, he was driving
from Sam to 3:30 p.m., 5 days per week. Moreno testified that
while Partners had the contract to clean the building, Pirnat told
him that the Suttons wanted to get rid of the Union because it
cost too much money. The Suttons did not want all these people
with many weeks of vacation. According to Moreno, Pirnat told
him many times that the cost of cleaning the building was hurt-
ing the Suttons and that they wanted to get rid of 32B.
At the end of December 1995, Partners advised its employ-
ees that the Suttons did not want to pay to renew the Partners
contract and that it was their last day. Partners told the employ-
ees to come to the building on the next working day. On Tues-
day, January 2, 1996, Moreno, Connell, and Anderson Curtis
went to 32B–32J where a Union official instructed them to go
to work as usual, accepting whatever wages were offered and
signing any documents that were presented to them. The Union
official told the employees that a strike was about to take place
but that they should not participate in the strike. Moreno ac-
cepted a job on Crisfield’s terms that night along with the other
employees, performing the same tasks that he had done for
Partners.
On January 3, 1996, a worker from an adjacent building gave
Moreno some union placards and leaflets in connection with the
strike against commercial buildings. Moreno asked the em-
ployee in the candy store of 291 Broadway to hold the material
for him. Moreno testified that Willie Lopez, the Crisfield su-
pervisor, told him he was not supposed to have the material.
Moreno replied that the worker next door had given it to him
and that he would take care of it. Later that evening, Moreno’s
son called and asked him to come home due to a family emer-
gency. According to Moreno, Lopez gave him permission to
leave early that day. On January 5, Coffield fired Moreno say-
ing he could not use him because Moreno was a threat to the
building. Coffield said Moreno knew the building was non-
Union and that he should not have placards in the building.
Moreno testified that on an occasion long after he was fired by
Coffield he was speaking to Pirnat in the building and Pirnat
remarked that Moreno had a lot of nerve to have union placards
in the building.
Pirnat testified that he had had a friendly relationship with
Moreno for many years. Moreno has visited Pirnat at home and
he purchased a car from Pirnat’s brother-in-law. While Moreno
was employed in the building, Pirnat spoke to him every few
weeks when their schedules overlapped. After January 1996,
Moreno came to 291 Broadway a few times to see friends in the
building. Pirnat estimated that from January 1996 to May 1998
he had seen Moreno 10 or 12 times. Pirnat knew that Moreno
had been fired in January 1996. Coffield told Pirnat that Mo-
reno had been fired after he left his job without permission.
Moreno told Pirnat that he was fired because he had an emer-
gency at home and had to leave work. Pirnat did not participate
in Crisfield’s decision to terminate Moreno and he heard about
it the day after it took place. Pirnat was sure that Moreno did
not say anything about union placards in connection with his
discharge; Pirnat would have remembered if something had
happened with union placards. Pirnat did recall that Moreno
told Pirnat that he thought E.S. Sutton should have given him
money when he was fired; Moreno wanted money from the
Suttons, the Union, and everybody. Shalom testified that Cof-
field said he had discharged Moreno for leaving work without
giving notice; Shalom was not involved in the discharge.
Unfair labor practice charges were filed against Crisfield on
March 14 and April 17, 1996. Coffield made several attempts
E.S. SUTTON REALTY CO. 415
to settle the matter. He asked James Fitzpatrick, the contract
director of Local 32B–32J, what he could do to resolve the
case. Fitzpatrick suggested unionizing the employees at the
building. On direct examination by counsel for the General
Counsel, Coffield testified that he called Shalom and informed
him of his conversation with Fitzpatrick and asked whether
Sutton would pay more for the monthly cleaning if Crisfield
were paying union wages. Shalom said that he would check
with his attorney. Eventually, Shalom informed Coffield that
Respondent would not raise its payments to Crisfield and that
he was not interested in bringing the Union back into the build-
ing. At the end of March 1997, Coffield spoke to Fitzpatrick
again and told him that he was not getting an increase from
Sutton but that he wanted to settle even if it meant losing
money. Coffield offered to give $15,000 in backpay to the em-
ployees and to sign a collective-bargaining agreement. Follow-
ing this conversation with Fitzpatrick, Coffield told Shalom that
he had worked out a deal with the Union and that he would pay
the difference between nonunion and union wages out of his
own pocket for the remainder of the contract term. Shalom
replied that he was not happy with Coffield’s decision and that
he did not want the Union in the building. Coffield testified that
this conversation took place sometime at the end of March
1997. As will be described below, Sutton terminated Crisfield’s
contract to clean the building on April 15, 1997. On cross-
examination by counsel for Respondent, Coffield’s testimony
changed. He then recalled that after April 16, 1997, he told
Shalom that he had settled the case for $30,000 and he asked
Sutton to pay part of the cost of the settlement.
Shalom testified that he could not recall when he first spoke
to Coffield about the attempts to settle the unfair labor practice
charges against Crisfield. However, Shalom was certain that
Coffield first asked for more money to help pay for the NLRB
settlement after April 1997 when Coffield called to ask for
payment of the last monthly invoice he had submitted to E.S.
Sutton. Shalom did not recall that Coffield had said anything
about having to sign a contract with Local 32B–32J.
A settlement agreement signed by Coffield on September 29,
1997, and approved on October 10, 1997, provided backpay to
10 named discriminatees. Connell, Curtis, and Moreno each
received backpay of $5,625, Radovic received $2,250 and
Arismendi received $375. Other employees about whom the
record is otherwise silent received lesser sums. I assume these
other employees were not former Partners employees but were
hired by Crisfield at some point. As part of the settlement, Cris-
field mailed a notice to the employees which provided that it
would not inform employees that it intended to operate as a
nonunion operation when it was obliged to recognize Local
32B–32J, that it would not require employees to resign from the
Union, that it would not discharge employees for activities on
behalf of the Union, that it would recognize the Union, that it
would make whole employees due to Crisfield’s failure to abide
by the contract between Partners, Inc. and the Union, and that it
would expunge from its records references to Anthony Mo-
reno’s discharge.
Shalom testified that he was dissatisfied with Crisfield’s per-
formance in cleaning 291 Broadway. Shalom transmitted tenant
complaints about cleaning to Coffield but the latter never took
care of the problems. On August 1, 1996, Shalom sent a fax to
Coffield stating, “We have had numerous complaints from our
tenants regarding the cleaning services─specifically regarding
the bathrooms. Your intentions seem good & you always re-
spond like a gentleman, but we must have action.” On August
23, Pirnat wrote a letter to Coffield informing him that the 18th
floor had not been cleaned and that a member of the building
staff had been sent to vacuum and empty the waste receptacles.
On October 11, 1996, Shalom wrote to Cristiano stating that his
“numerous” complaints about poor service had not been at-
tended to and that almost weekly an office was not cleaned at
all. Shalom also mentioned complaints about the off hours se-
curity guards. Shalom concluded by saying, “If there is not an
immediate and noticeable improvement, we will have no choice
but to terminate our contract.” On March 5, 1997, Shalom
wrote to Cristiano enclosing two written complaints from ten-
ants and remarking that, “it seems that approximately once
every week or two, one or two offices are not cleaned at all.”
On March 11, 1997, Shalom wrote to Cristiano stating that
there was no security guard in the building on March 8 and
emphasizing that the building and its occupants were endan-
gered by this situation. On March 19, Shalom wrote to Cris-
tiano enclosing a tenant complaint about cleaning and security
and stating, “This situation must be remedied immediately.” On
March 31, Shalom again wrote to Cristiano enclosing a report
from Pirnat that a tenant had complained about lack of clean-
ing. On April 2, Sutton received a memorandum from the ten-
ant on the 19th floor detailing dirty bathrooms and garbage not
removed and complaining that, “This is not the first time lapses
in bathroom cleaning have occurred.”
Shalom testified that he finally decided to cancel the contract
with Crisfield because of an accumulation of events. He came
to the conclusion that he would try to have Sutton do the clean-
ing “in-house” with its own employees. Shalom thought that
solution could not be worse and it might be better, and he could
probably clean the building in-house for less money. E.S. Sut-
ton was always trying to reduce expenses.
Pirnat testified that he often told Coffield that he was not do-
ing a good job and that he might be terminated by Sutton.
Pirnat often found the Saturday security men sleeping or, ab-
sent altogether, and he had to call the Crisfield managers about
this “constantly.” Pirnat was friendly with many of the tenants
in the building, and they told him that the cleaning was not
being done properly. If tenant garbage was not being picked up,
Pirnat had to deal with it when he came on the premises. Pirnat
testified that Crisfield had no backup personnel. Furthermore,
some of the cleaning personnel were employed during the day
in a construction company owned by Coffield and they were
too tired to work at night in the building.12 About 1 month be-
fore the contract was actually cancelled, Shalom told Pirnat that
he was terminating Crisfield. Pirnat knew the reasons for this
decision: garbage was not being picked up, security was lax,
the vacuum cleaners did not work, there were no cleaning sup-
plies and tenants were complaining.

12 Pirnat was certain that Coffield had a construction company; he
asked Coffield to hire his nephew
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 416
Shalom told Pirnat that the cleaning should be done in-
house. Pirnat thought this was a good idea as long as he himself
did not have to be bothered with the job. Pirnat suggested to
Shalom that Anderson Curtis, who had worked in the building
“forever’, should be selected to run the cleaning services. Curtis
cleaned the lobby, took out the building garbage, and acted as
the nighttime security person.13 Pirnat had seen Curtis every
working day for 12 years because Curtis’ shift ended just as
Pirnat’s shift began, and Pirnat knew that Curtis was an excel-
lent worker. Sometime after Pirnat had told Shalom to consider
making Curtis the cleaning supervisor, Shalom informed Pirnat
that he wished to speak to Curtis. Pirnat discussed the possibil-
ity of taking over the cleaning with Curtis and he accompanied
Curtis to a meeting in Shalom’s office. During the meeting,
Shalom told Curtis that they had to do a better job with the
cleaning because the tenants were disgruntled. Pirnat was not
involved in any subsequent actions Curtis took to hire cleaning
employees.
Shalom testified that before he sent a letter canceling the
Crisfield contract he talked to Pirnat about Curtis’ abilities.
Pirnat brought Curtis to see him at the beginning of April. Sha-
lom told Curtis to draw up a list of the equipment he would
need and he told him to hire the same number of people as were
currently employed by Crisfield to clean the building. He told
Curtis that Sutton would pay $7 per hour to the employees and
that after a while they would receive medical benefits. Shalom
did not discuss any particular people who should be hired by
Curtis. He told Curtis that he did not want the same kind of
complaints from the tenants. Shalom told Curtis to find people
to clean the building, but Curtis had no authority to hire them
until Shalom gave him that authority. Shalom testified that he
informed Curtis that he was hired as of the date that Crisfield
was out. But Shalom also stated that he gave Curtis the author-
ity to begin hiring before Crisfield was actually out of the
building. Clearly, Shalom’s recollection about the events was
not complete.
The Crisfield contract was terminated by letter from Shalom
dated April 10, 1997, stating that the termination was to take
effect on Thursday, April 17. However, on April 15, Shalom
sent a letter to Crisfield stating, “Because of the poor quality
and/or lack of cleaning and security services, please notify your
employees after they complete tonight’s shift that they should
not return to the building.”
Pirnat testified that he took Curtis up to meet Shalom before
April 16. Pirnat believed that the in house cleaning crew super-
vised by Curtis took over the day after Crisfield was terminated
and that there was no hiatus in cleaning services at the building.
However, Pirnat only sees Curtis in the morning so he could
not be sure who was there at night.
Anderson Curtis has worked in 291 Broadway for many dif-
ferent cleaning contractors over the past 31 years. Curtis has
been a member of Local 32B–32J during all of that time. Cur-
tis’ duties were to clean and polish the floors, to perform duties
in the lobby area and to provide nighttime security. Curtis testi-
fied that Shalom interviewed him and hired him on April 17.

13 Because Pirnat did not work the same hours as Anderson he was
not quite accurate about Anderson’s precise duties.
According to Curtis, he came to work the night of April 16 just
before midnight and found that the Crisfield equipment was
gone; a worker named Al told him that the rest of the Crisfield
employees had been given positions elsewhere; at some point,
Crisfield Supervisor Willie Lopez had informed Curtis that they
had quite a few buildings.14 Curtis stated that this first night he
sat at the lobby desk to provide security and when Pirnat came
to work in the morning he asked Pirnat what had happened.
Pirnat told Curtis that Crisfield was out and then he took Curtis
to Shalom’s office. Shalom told Curtis that the only good re-
ports he had from the tenants were about Curtis and he asked
him to continue working at the building as a supervisor. Shalom
offered him $400 a week to start and promised him insurance
coverage. Shalom told Curtis to hire workers; he did not tell
him whom to hire and he did not forbid him from hiring anyone
in particular. Shalom instructed Curtis to draw up a list of nec-
essary equipment and supplies and give it to Pirnat for bidding
and ordering.
Curtis testified that he asked his brother, Harry Curtis Jr., to
help him out until the equipment arrived; they made do with
brooms and a few plastic bags to clean the building and dump
the rubbish. Curtis told the tenants to bear with them until the
equipment arrived in 1 week’s time. Curtis testified that Sha-
lom gave Curtis application forms to provide to the people that
he wanted to hire. These forms were filled out and transmitted
by Curtis to Shalom’s office before the workers actually began
work. Curtis’ recollection about the actual dates when various
employees began work was not accurate and tended to be shift-
ing. However, when asked about calling the former Crisfield
employees for work, Curtis was consistent in his testimony. He
testified that he had tried to call Marlene Connell within the
first 2 or 3 days after he was hired and that he had left a mes-
sage on her answering machine, but she did not call him back.
Curtis recalled that one of the tenants in the building, a lawyer,
had informed him that Marlene was away on a cruise. Curtis
testified that he did not have Anthony Moreno’s telephone
number, but that he had asked one of Moreno’s friends among
the tenants to give Moreno a message.
Pirnat testified that he had known Connell very well because
she came to the building early from her other job and he gave
her keys to the offices she cleaned. The last time Pirnat spoke
to Connell was when Crisfield was going to “disappear”; per-
haps around April 14. Connell asked Pirnat what he thought
would happen and Pirnat told her that Crisfield would be gone
because it was not doing a good job and the owners were un-
happy. Connell replied that she was going away on vacation
and she would deal with it when she got back. Pirnat stated that
Connell had a lot of friends in the building and he often asked
them how she was doing. Pirnat testified that Moreno, who had
not worked in the building since January 1996, did not speak to
him about getting a job at the building around April 17, 1997.
When Pirnat and Moreno spoke on the telephone Moreno asked
him a lot of questions about fixing electrical problems in his
new house but he did not ask Pirnat about working at the build-
ing. Pirnat said that none of the Crisfield people approached
him about a job.
14 Al is not further identified in the record.
E.S. SUTTON REALTY CO. 417
Connell testified that “a few days” after Crisfield lost the
contract to clean 291 Broadway she went to the Union and
informed an official named McCullough that she was going to
apply for a job at the building. Connell stated that she then went
to the building and asked Pirnat for an application. Pirnat said
that the hiring was being done at the office and he gave her the
telephone number. Connell said that Pirnat gave her the wrong
number. A few days later, according to Connell, she returned to
see Pirnat and this time he gave her the address of Shalom at
the E.S. Sutton management office. Connell and Moreno went
to the office and found it closed for the Jewish Holidays.15
They returned on a second occasion and spoke to Shalom, tell-
ing him that they wanted to apply for jobs. Shalom said that
Pirnat was doing the hiring and firing. According to Connell,
Moreno asked Shalom, “What do we do now, go fly a kite?”
and Shalom replied, “Yes, go fly a kite, the Union can’t do
anything about it.” Connell testified that she went back to see
Pirnat and asked him why he had sent her to the office, and
Pirnat still maintained that Shalom was doing the hiring and
firing.
On direct examination by counsel for the General Counsel,
Moreno testified that in early to mid-April 1997, Connell tele-
phoned him and said that Crisfield was out of the building and
she had lost her job. Within a week he telephoned Pirnat and
asked Pirnat for a job. Pirnat replied, “You know the deal,” and
said that the Suttons would bring in their “own boys.” A few
days later, Moreno telephoned Pirnat again because Connell
had informed him that Curtis was doing the hiring. When Mo-
reno asked Pirnat whether Curtis was hiring, Pirnat denied that
it was true and told Moreno to go see Shalom for an answer.
Moreno said that the first people to be hired should be himself,
Connell and “Rafael” and Pirnat repeated that he should ad-
dress his request to Shalom. Moreno went to the Union and
then he and Connell went to see Shalom at the end of April.
Finding the office closed, they returned the next Monday. Mo-
reno told Shalom that he and Connell were looking for jobs at
291 Broadway. Shalom replied that he was not hiring. Moreno
said that Pirnat and the Union had sent them to him for a job.
Shalom said that that Moreno and the Union could not tell him
what to do. Moreno asked, “Are you telling me to go fly a
kite?” and Shalom said, “Yes, go fly a kite.” Moreno testified
that he and Connell then went to the Union to file charges. Mo-
reno’s story changed somewhat on cross-examination. In re-
sponse to questions by counsel for Respondent, he recalled that
in mid-April, after Crisfield was out, he went to see McCul-
lough and informed him that Crisfield had lost the contract.
Connell was not with him. Moreno asked McCullough whether
he should get a job at the building. Moreno told McCullough
that the Suttons had done wrong; he believed that they had
conspired with Coffield to get everyone fired and hire cheap
labor and they failed to talk to the employees about the job.
Moreno though he was entitled to severance pay because he
had worked at the building for 13 years. McCullough said that
he should get a job at the building and told him to go and apply.

15 The parties stipulated that in 1997, the first 2 days of Passover
were April 22 and 23 and the last 2 days were April 28 and 29. On
these 4 days, observant Jews would close their offices.
Moreno wanted a job at his union wage, not the $7 per hour
Crisfield had paid him. Moreno and Connell went to see Sha-
lom on May 5, 1997, and said, “[W]e were there for a job and
the Union sent us.” Shalom replied that Curtis was hiring. Mo-
reno insisted that Pirnat had told him that Shalom was hiring.
Shalom said that there were no jobs available. In answer to
Moreno’s continued insistence that Shalom himself was hiring,
the latter said that the Union could not tell him what to do.
Shalom testified that when Moreno and Connell came to ask
for a job at 291 Broadway he told them that the staff was fully
hired and that Curtis was doing the hiring. Moreno replied that
the Union had sent him to the office. Shalom could not recall
any more details of the conversation.
The documentary evidence shows that supplies and materials
for cleaning the building were invoiced on April 14 and 16,
1997. Anderson Curtis filled out his W-4 form on April 8 and
his I-9 form on April 11, 1997. Harry Curtis Jr., filled out his
W-4 form on April 8 and his I-9 form on April 11, 1997. The
form was signed by the payroll officer for 291 Broadway on
April 16, 1997. Vernon Dixon filled out his W-4 form on April
land his I-9 form on April 10.16 The I-9 form was signed by the
payroll officer on April 16. Orfa Vasquez filled out her W-4
and 1-9 forms on April 12 and the payroll officer signed the I-9
form on April 16. Victor Valdes filled out his W4 form on
April 9. His I-9 form is undated but it was signed by the payroll
officer on April 16. Derrell Cora filled out his W-4 and I-9
forms on April 7; his I-9 form was signed by the payroll officer
on April 30.17 Douglas Gittens filled out his W-4 form on April
21. His I-9 form is not dated; it was signed by the payroll offi-
cer on April 30, 1997. The parties stipulated that James
Huayamave began working for Respondent on June 20, 1997.
B. Discussion and Conclusions
Connell was not a reliable witness. She had obviously been
primed to tell a story in concert with Moreno but she could not
recall it and had to be prompted by leading questions. Even so,
Connell’s story differed markedly from that told by Moreno.
Connell was clearly unable to recall significant dates but she
tried to give the impression that she applied for a job with Re-
spondent in a timely fashion. However, Connell did not deny
that she was away on a cruise when Crisfield lost the contract.
She did not deny telling Pirnat, in response to the information
that Crisfield was about to leave the building, that she would
take care of the problem when she returned. I cannot rely on
Connell’s testimony to find any unfair labor practices.
Moreno was not an accurate witness. For example, he
exaggerated his contacts with Pirnat, saying that he saw Pirnat
every day. Yet Moreno’s main job as a bus driver does not end
until 3:30 p.m., which is exactly when Pirnat’s workday at the
building is over. Moreno was vague about dates, at first making
it seem that he and Connell acted immediately to apply for jobs
at the building, but then conceding that they did nothing until
the end of April when the office was closed on April 28 or the
on April 29. Moreno was eager to give testimony linking Re-
spondent to the unfair labor practices committed by Crisfield.
16 Dixon left employment on April 25, 1997.
17 Cora left employment on June 19, 1997.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 418
His eagerness went so far as to lead him to accuse his old friend
Pirnat of repeatedly lying to him about who was doing the hir-
ing for the building. It would be impossible to separate out the
exaggerations and fabrications from Moreno’s testimony, and I
shall not rely on his testimony to find violations of law.
Shalom did not recall much about some of the relevant
events. However, I do not believe that he gave false testimony
under oath.
Curtis was a truthful witness. I observed that he testified
without guile and I believe that Curtis would not deliberately
tell any falsehood. I am convinced that Curtis would not offer a
fabrication under oath. Although Curtis did not have good re-
call of dates, I find that he testified accurately as far as his rec-
ollection went. Curtis obviously forgot that he met with Pirnat
and Shalom to discuss supervising and hiring the cleaning staff
before Crisfield was terminated. It is clear to me from the tes-
timony of Shalom and Pirnat, from listening to Curtis and from
examining the documentary evidence, that Curtis met with
Shalom in anticipation of Crisfield’s termination and that Sha-
lom told him to hire some people to clean the building and to
draw up a list of necessary equipment and supplies. From the
dates on the invoices in the record, I find that Curtis drew up
the list and that the materials were ordered before Crisfield left,
but that they were probably delivered after April 16. This
would account for Curtis’ recollection that when he and his
brother first began cleaning the building there was nothing to
work with and they had to buy a few items and ask the tenants’
indulgence until all necessary materials were on the premises.
The documentary evidence shows that although Shalom at first
intended Crisfield to clean the building up until the night of the
16th, he changed his mind and ended the contract a day early.
This fact would account for Curtis’ recollection that he was
surprised one night when he came to the building to find that
Crisfield was already gone. Curtis’ testimony that he left a mes-
sage for Connell when he began hiring was given with convic-
tion and I found it very convincing. I also credit Curtis’ testi-
mony that he asked several tenants to give Moreno a message
when he was beginning to hire cleaning staff. I credit Curtis
that he alone was responsible for the hiring. I also credit Curtis
that he was told that some of the former Crisfield employees
had been given jobs at other locations.
I credit Pirnat’s testimony. Pirnat is a loquacious individual
and the many details he provided had the ring of truth. His tes-
timony was consistent despite vigorous cross-examination and
his assertions were supported by the documentary evidence.
Coffield’s testimony must be approached with caution. Cof-
field has paid a substantial sum of money to settle an unfair
labor practice case. I observed that Coffield was loath to give
any information about his business, his methods of operation
and his associates. Coffield testified readily to only one set of
facts: that Shalom wanted to save money on cleaning the build-
ing and that Shalom did not wish to deal with the Union. How-
ever, Coffield himself came to Shalom with a proposal to cut
drastically the cost of cleaning the building by using nonunion
labor. Coffield was not an innocent who was conned into a
scheme by Shalom. Coffield had directed cleaning operations at
the Javits Convention Center, a location that has achieved noto-
riety for the difficulty of its labor-management relations. Cof-
field’s proposal to Shalom was no different from the many
similar proposals accepted by owners and managers of build-
ings in New York City which are discussed in numerous AU
and Board decisions involving the Union herein. I find that
Coffield testified in such a manner as to shield himself from
further involvement with the Board and the Union, and I shall
credit his testimony only when it is not contradicted by other
more reliable evidence.
Based on my credibility determinations about the testimony
herein and on the documentary evidence in the record, I find
that the following occurred.
Coffield walked into the building at 291 Broadway and told
Pirnat that he was looking for customers for his cleaning com-
pany. Pirnat told Coffield that Respondent was thinking of
changing its cleaning contractors and directed Coffield to Sha-
lom. Coffield gave Respondent a bid to provide cleaning ser-
vices at 291 Broadway for less than the current cost but with
the use of nonunion labor. Respondent signed the proposed
contract with Crisfield sometime between November 10 and
late December 1995. Shalom told Coffield that the workers
employed directly by Respondent were no longer union mem-
bers and that after the end of the year Respondent would no
longer be dealing with the Union at 291 Broadway.
At the Union’s direction, all of the employees of the former
cleaning contractor went to work for Crisfield on January 2,
1996 despite the decrease in wages and lack of benefits. On
January 5, 1996, Moreno was fired by Crisfield. Neither Re-
spondent nor its agents were involved in Moreno’s discharge.
Both Shalom and Pirnat believed that Moreno had been fired
because he left work without permission.
Respondent began receiving complaints from the tenants of
291 Broadway concerning the cleaning performed by Crisfield
before August 1996. Beginning on August 1, Shalom put these
complaints into writing, citing “numerous” prior complaints
and the fact that Coffield always responded to these but that
good intentions did not take the place of action. The written
complaints continued and on October 11 Shalom warned that
there had been numerous complaints about cleaning and secu-
rity and that these could lead to the termination of Crisfield’s
contract. More complaints accrued in 1997, and Shalom de-
cided that he would have to fire Crisfield. Pirnat was often the
recipient of tenant complaints about Crisfield’s failures. About
mid-March 1997, Shalom told Pirnat that he would be terminat-
ing the Crisfield contract. Shalom and Pirnat discussed Sha-
lom’s wish to perform the cleaning in-house and Pirnat sug-
gested making Curtis the cleaning supervisor.
In early April, Curtis met with Shalom and offered him a job
supervising the cleaning operations at the building. Shalom said
that the tenants were dissatisfied and that cleaning services had
to improve. Shalom told Curtis to hire cleaning employees and
to draw up a list of needed materials. Shalom did not tell Curtis
whom he was or was not permitted to hire; he only said he
wanted to see improvements. Curtis ordered equipment and
materials by April 14 and 16, 1997. New employees, including
Curtis, filled out W-4 and I-9 forms for Respondent beginning
on April 7. After meeting with Shalom in early April, Curtis
tried to leave a message with friends of Moreno asking him to
call about a job. Curtis telephoned Connell and left a message
E.S. SUTTON REALTY CO. 419
on her answering machine asking her to call him. Neither Mo-
reno nor Connell responded to Curtis. Respondent terminated
Crisfield’s contract on April 15, 1997. By April 16, Curtis had
hired a full complement of cleaning employees.
Coffield made attempts to settle the unfair labor practice
charges filed against Crisfield in March and April 1996. The
Union wanted him to sign a collective-bargaining agreement.
Coffield informed Shalom of the Union’s demands. After Cris-
field lost the contract to clean 291 Broadway, Coffield tele-
phoned Shalom and inquired about the late payment for the last
month’s services. At this time, Coffield asked Shalom if he
would contribute to the cost of a settlement with the Union. The
settlement agreement was signed on September 29, 1997.
In early April 1997, Pirnat told Connell that Crisfield would
lose its contract. Connell replied that she was going on vacation
and that she would deal with the situation when she returned.
Connell did not ask Pirnat for a job at the building when she
returned. Although Moreno was friendly with Pirnat and often
spoke to him on the telephone, Moreno did not ask Pirnat for a
job at the building.
After she returned from vacation, Connell telephoned Mo-
reno and told him that she was out of a job. Connell informed
Moreno that Curtis was in charge of hiring. Neither Moreno nor
Connell asked Curtis for a job cleaning the building. Moreno
went to the Union and told McCullough that he wanted sever-
ance pay and McCullough told him to get a job at the building.
On April 28 or 29, Moreno and Connell went to Respondent’s
office and found it closed. They returned on May 5 and spoke
to Shalom who told them that hiring was complete and that
Curtis was in charge of hiring. Moreno replied that the Union
had sent him to see Shalom. Later, Moreno and Connell went to
the Union so that charges could be filed against Respondent.
Despite the valiant efforts by counsel for the General Coun-
sel in his excellent brief to present the facts in the light most
favorable to his position, I find that the credible testimony and
documents in the record do not support his assertions about the
facts.
I conclude that the testimony and evidence before me show
that Moreno and Connell did not timely apply to Respondent
for employment cleaning the building at 291 Broadway. There
is no evidence that any other union-represented employees
applied for such employment nor that Respondent engaged in
any actions that would discourage them from applying for em-
ployment. Thus, I conclude that the Respondent did not fail to
consider employees for employment, did not fail to hire em-
ployees, and did not fail to bargain with the Union.
CONCLUSIONS OF LAW
1. The General Counsel has not shown that Respondent vio-
lated the Act in the manner alleged in the complaint.
[Recommended Order omitted from publication.]