297 N.L.R.B. 1059 (N.L.R.B. 1990)

International Shipping Association, Inc. And Lederle Laboratories

National Labor Relations Board - Board DecisionsMar 28, 1990

297 N.L.R.B. 1059 (N.L.R.B. 1990)

INTERNATIONAL SHIPPING ASSN 1059 International Shipping Association, Inc. and Lederle Laboratories, a Division of American Cyanamid, Inc. and Greater New York Joint Board, Amal- gamated Clothing and Textile Workers Union, AFL-CIO, CLC. Case 2-CA-22553 March 28, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 30, 1988, Administrative Law Judge Steven Davis issued the attached decision Respondent Lederle filed exceptions and a support- ing brief The General Counsel filed exceptions, a supporting brief, and a brief in support of the judge's decision The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions and briefs, and has decided to affirm the judge's rulings, findings,' and conclusions, 2 and to adopt his recommended Order as modified and set forth in full below Respondent Lederle contends that because it is not the employer of the discnmmatees it cannot be found to have violated Section 8(a) This conten- tion is without ment The Board consistently has held that an employer under Section 2(3) of the Act may violate Section 8(a) not only with respect to its own employees but also by actions affecting employees who do not stand in such an immediate employer/employee relationship See, e g, Jimmy Kilgore Trucking, 254 NLRB 935, 946-947 (1981), Lucky Stores, 243 NLRB 642, 643 (1979), Dews ' We note that Respondent International Shipping Association (ISA) has not filed any exceptions Thus, in the absence of exceptions, we adopt the judge's findings as to that Respondent The Respondent Lederle has excepted to some of the judge's credibil- ity findings The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re- versing the findings Additionally, Respondent Lederle alleges that the judge's decision demonstrates his prejudice to its position After a careful examination of the entire record, we are satisfied that this allegation is without ment 2 In adopting the judge's conclusion that it would not effectuate the purposes and policies of the Act to honor the purported non-Board set- tlement, we emphasize that the record does not establish the precise terms of the settlement, nor the various circumstances under which It was reached, so that it is not possible to evaluate It against the relevant cnte- na set forth in Independent Stave Go, 287 NLRB 740 (1987) We further note that apparently Respondent Lederle is not a party to the alleged pri- vate settlement In agreeing with the judge, however, we disavow his conclusion that under Independent Stave a settlement would be unaccept- able per se because it contains no provision for backpay or the posting of a notice See American Pacific Pipe Co, 290 NLRB 623 (1988), and M & B Contracting, 290 NLRB 775 (1988) 297 NLRB No 172 Construction, 231 NLRB 182 fn 4 (1977), enfd 578 F 2d 1374 (3d Cir 1978), and Fabric Services, 190 NLRB 540 (1971) See also Neo-Life Co of Amer- ica, 273 NLRB 72, 77 (1984), and Georgia Pacific Corp, 221 NLRB 982, 986 (1975) Further, although consistent with the complaint, the judge found that Respondent Lederle violated Section 8(a)(1), (3), and (4) by refusing to employ or to offer to reemploy the warehouse employees in December 1987, we shall amend the Conclusions of Law to more closely reflect the violations estab- lished here 3 In this regard, we note that the judge found, and we agree, that Respondent Lederle was not a Joint employer of the warehouse employees with Respondent ISA, and that there is no allega- tion or evidence establishing that in December 1987 Respondent Lederle either directly hired its own warehouse employees or that it was a joint employer of the warehouse employees with Empire Omm Temporary Services In these circumstances, we find that Respondent Lederle's conduct in De- cember 1987, rather than an unlawful refusal to employ or to offer to reemploy the warehouse em- ployees, constituted an unlawful attempt to cause and causing Empire Omni to refuse to hire the dis- cnmmatees, a matter clearly encompassed by the complaint and fully litigated See Georgia-Pacific, supra, and Dews, supra We therefore also shall modify the recommended Order to provide an ap- propriate remedy 4 AMENDED CONCLUSIONS OF LAW Substitute the following for the judge's Conclu- sion of Law 7 "7 By attempting to cause and causing Empire Omni Temporary Services to refuse to hire the fol- lowing employees in about early December 1987 because they supported or assisted the Joint Board, and because a complaint was pending, Lederle vio- lated Section 8(a)(1), (3), and (4) of the Act 13 Steven Ackerman Samuel McCoy Cahvar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith 'Member Cracmft agrees with the judge and her colleagues that Re- spondent Lederle violated Sec 8(a)(3) and (I) in December 1987 by its conduct toward the warehouse employees She finds it unnecessary to pass on the question of whether the same conduct also violated Sec 8(a)(4) because the finding of such an additional violation would not ma- terially affect the Order 4 The judge Inadvertently failed to provide a notice with respect to Respondent ISA We shall include an appropnate notice Additionally, as it appears that Respondent ISA has ceased operations, we shall provide that the notice be mailed to the Pearl River warehouse employees em- ployed as of the time of Respondent ISA s unfair labor practices c 1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gary Germond Roger Tichi Gregory Howard" ORDER A The National Labor Relations Board orders that the Respondent, International Shipping Asso elation, Inc , Palisades, New York, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Discharging or otherwise discnmmatmg against any employees because of their activities in behalf of any labor organization (b) Interrogating its employees regarding their union activities and sympathies (c) Threatening employees with discharge if they joined or supported any labor organization (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act ...,' t 2 Take the- following affirmative action neces- sary to effectuate the policies of the Act (a) Make whole the following employees for any losses of earnings and other benefits suffered as a result of the discrimination against them, m the manner set forth in the remedy section of the judge's decision Warehouse Employees Steven Ackerman Samuel McCoy Calivar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith Gary Germond Roger Tichi Gregory Howard Clerical Employees Christine Bromley Sharon Livermore Catherine Dava Myra Sanford Mary Ann Jenkins (b) Remove from its files any reference to the unlawful discharges and notify them in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy mg, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Mail a copy of the attached notice marked "Appendix A" 5 to all employees employed by Re- spondent ISA at the Pearl River, New York ware- house at the time of its unfair labor practices Such notice shall be mailed to the last known address of each employee Copies of the notice, on forms pro vided by the Regional Director for Region 2, after being signed by Respondent ISA's authorized rep resentative, shall be mailed immediately upon re- ceipt by Respondent ISA, as directed B The National Labor Relations Board orders that the Respondent, Lederle Laboratories, A Divi- sion of American Cyanamid, Inc , Pearl River, New York, its officers, agents, successors, and as signs, shall 1 Cease and desist from (a) Attempting to cause and causing other em ployers to refuse to hire employees because they supported or assisted any labor orgamzation, or be- cause of the pendency of an NLRB complaint (b) Threatemng employees that it would cancel its contract with a subcontractor and cause the layoff of employees if they formed a labor organi- zation (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Notify the present employer of the ware- house employees at the warehouse in Pearl River, New York, in writing that it has no objection to the employment of the following employees Make the employees whole for any losses of wages and other benefits suffered as a result of the discrimina- tion against them from the date of the unlawful conduct in early December 1987 to the date they secure substantially equivalent employment, with interest m the manner set forth in the remedy sec tion of the judge's decision Warehouse Employees Steven Ackerman Samuel McCoy Calivar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith Gary Germond Roger Tichi Gregory Howard 5 If this Order is enforced by a judgment of a United States court of appeals the words in the notice reading Posted by Order of the Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board INTERNATIONAL SHIPPING ASSN 1061 (b) Remove from its files any reference to its un- lawful conduct in attempting to cause and causing Empire Omni to refuse to hire the above-named employees and notify them in writing that this has been done and that the refusal to hire them will not be used against them in any way (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (d) Post at its Oak Tree warehouse facility ,copies of the attached notice marked "Appendix B " 6 Copies of the notice, on forms provided by 0 ' the Regional Director for Region 2, after being signed by Lederle's authorized representative, shall , be posted by Lederle immediately upon receipt and maintained for 60 consecutive days in conspicuous A places including all places where notices to em- ployees are customarily posted Reasonable steps shall be taken by Lederle to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 6 See fn 5, supra 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 the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT discharge or otherwise discrimi- nate against any of you because of your activities in behalf of any labor organization WE WILL NOT interrogate you regarding your union activities and sympathies WE WILL NOT threaten you with discharge if you join or support any labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL make whole the following employees for any losses of earnings and other benefits suf- fered as a result of the discrimination against them, with interest Warehouse Employees Steven Ackerman Samuel McCoy Cahvar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith Gary Germond Roger Tichi Gregory Howard Clerical Employees Christine Bromley Sharon Livermore Cathenne Dava Myra Sanford Mary Ann Jenkins INTERNATIONAL SHIPPING ASSOCIA- TION, INC .: 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 the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT atiempt to cause or cause other employers to refuse to hire employees because they supported or assisted any labor organization, or be- cause of the pendency of an NLRB complaint WE WILL NOT threaten employees that we would cancel our contract with a subcontractor and cause the layoffs of employees if they joined a labor organization WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL notify the present employer of employ- ees at our warehouse in Pearl River, New York, that we have no objection to the employment of the following employees WE WILL make them whole for any losses of earnings and other benefits suffered as a result of the discrimination against them from the date of the refusal to employ them in early December 1987 to the date they secure substantially equivalent employment, with interest Steven Ackerman Samuel McCoy Calivar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gary Germond Roger Tichi Gregory Howard WE WILL remove from our files any reference to our unlawful conduct in attempting to cause and causing Empire Omni to refuse to hire the above- named employees and notify them in wntmg that this has been done and that the refusals to hire them will not be used against them in any way LEDERLE LABORATORIES, A DIVISION OF AMERICAN CYANAMID, INC Judy Mmette Sandler Esq for the General Counsel Gerald Clendenny Esq of Wayne New Jersey, for the Respondent DECISION STATEMENT OF THE CASE STEVEN DAVIS Administrative Law Judge Pursuant to a charge filed on November 27 1987 by Greater New York Joint Board Amalgamated Clothmg and Tex tile Workers Union, AFL-CIO, CLC (Joint Board) a complaint was issued by Region 2 of the National Labor Relations Board on February 29 1988 against Interna tional Shipping Association, Inc (ISA) and Lederle Lab oratories, A Division of American Cyanamid, Inc (Le derle), both sometimes referred to as Respondents The complaint alleges that Lederle and ISA, which operated a Lederle warehouse are joint employers of ISA s employees who are employed at that warehouse The complaint further alleges that subsequent to the Joint Board s filing of a petition to represent those work ers Respondents threatened and mterrogated its employ ees and on November 20 1987, discharged all 20 of the warehouse and clerical workers i The complaint also alleged that in mid December 1987, following ISA s closure Lederle refused to employ or offer to reemploy any of the warehouse workers except the clerical employees Lederle s answer denied the material allegations of the complaint ISA did not file an answer to the complaint On May 16 and 17 1988 a hearing was held before me in New York City Upon the entire case, including my observation of the demeanor of the witnesses and after consideration of the briefs filed by the General Counsel and Lederle I make the following FINDINGS OF FACT I ISA'S FAILURE TO ANSWER THE COMPLAINT The General Counsel moved at the hearing for a find mg that ISA, not having filed an answer, be deemed to have admitted all the allegations of the complaint Le derle stated that It was not opposed to the motion al though it objected to the prejudicial effect upon it of 'The complaint names 21 employees but I person Roger Ticlu was listed twice ISA s default Thus a critical allegation, that ISA and Lederle were joint employers of the employees of ISA would be deemed to be admitted by ISA At the hearing I reserved decision on the motion and it is discussed herein The complaint was mailed on February 29 1988 to ISA at 307 Oak Tree Road Palisades New York, which is the address of the Lederle warehouse at issue 2 On about March 1, the envelope contammg the complaint was marked by the U S Postal Service moved left no address and was returned to the Board with the nota non not deliverable as addressed—unable to forward Thereafter, on March 8, the complaint was mailed to ISA s attorney, Robert L Cope On March 11 Cope sent a letter to Regional Director Daniel Silverman which advised Silverman that Cope received a copy of the complaint evidently for purposes of our forwarding [it] to [ISA] Cope stated that ISA has ceased all oper ations and is indebted to the law firm and other credi tors Cope further stated that the law firm was not au thonzed to and did not intend to accept service of the complaint and would not enter an appearance for ISA since there is no means to compensate us for our serv ices Section 102 20 of the Board s Rules and Regulations provides that the allegations in the complaint shall be deemed admitted if an answer is not filed within 10 days from service of the complaint unless good cause is shown The complaint states that unless an answer is filed within 10 days of service all of the allegations in the complaint shall be deemed to be admitted to be true and shall be so found by the Board It is undisputed that the complaint was properly served upon ISA, and that its attorney Robert Cope, re coved a copy No answer has been filed to the com plaint ISA s alleged fmancial condition referred to by Cope does not constitute good cause for its failure to file a timely answer within the meaning of Section 102 20 of the Board s Rules and Regulations Rite Style Fashions 280 NLRB 1134 (1986) Nor do the asserted facts that ISA is out of busmess and Attorney Cope has not been paid by his client constitute such good cause Kramer Volkswagen 284 NLRB No 28 (June 15 1987) (not re ported in Board volume), Sullivan Magee 229 NLRB 543 (1977) I accordingly find and conclude that because of ISA s failure to file a timely answer all the allegations of the complaint are deemed to be admitted by ISA to be true A threshold question presented is the effect upon Le derle of ISA s failure to answer the complaint By virtue of its failure to answer the complaint, ISA 'has admitted the factual allegations concerning its joint employer rela tionship with Lederle and has also admitted the conclu sionary allegation that Lederle and ISA are joint em ployers Lederle has denied those allegations 2 On November 27 1987 the charge which named ISA was sent to Oak Tree A signed postal return receipt therefor was dated December 1 1987 INTERNATIONAL SHIPPING ASSN 1063 Thus, one of the alleged joint employers (ISA) has ad- mitted that it is a joint employer with the other (Le- derle) The Board has considered a similar matter in the con- text of a Motion for Summary Judgment for failure to file an answer to a backpay specification Transportation by La Mar, 281 NLRB 508 (1986) In that case, four re- spondents were served with the specification Three of them filed answers raising the issue of interim earnings The fourth, Jerome Butler, filed no answer The Board, in directing a hearing on the issue of inter- im earnings for the three respondents, stated Moreover, Butler has not shown good cause for his failure to file an answer We therefore deem the al- legations in the amended backpay specification to be admitted as true Under the circumstances of this case, however, since the other Respondents have raised the issue of interim earnings, a determination of the exact amount of backpay liability will not be made until such Issue has been resolved at a hear- ing Accordingly, we grant the General Counsel's Motion for Summary Judgment against Respondent Butler, except as to the extent that the issue of in- terim earnings raised by the other Respondents has been remanded for a heanng In the instant case, it too would be unfair to find that Lederle and ISA are joint employers based upon ISA's failure to answer the complaint Making such a finding on the basis of a default and not on the merits of an issue vigorously contested by Lederle would be improper, particularly where, as set forth below, I find that, based upon the_ evidence, Lederle and ISA are not Joint em- ployers II JURISDICTION Lederle, a Maine corporation, having corporate offices and a pharmaceutical factory in Pearl River, New York, and a warehouse distribution center on Oak Tree Road in Palisades, New York, is engaged in the business of manufacturing and distnbutmg pharmaceutical products Annually, in the course of its business operations, Le- derle sells and ships goods and materials valued in excess of $50,000 from its New York plant directly to firms lo- cated outside New York State Lederle admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act Lederle also stipulated and I find that the Joint Board is a labor organization within the meaning of Section 2(5) of the Act ., Lederle has admitted that from March 1987 to on or about November , 20, 1987, ISA, a New York corpora- tion, was in the international shipping business and the business of operating warehouses, including Oak Tree Lederle also admitted that in the course of its operations with ISA, that company provided services valued in excess of $50,000 to Lederle In addition, by virtue of its failure to answer the complaint, I find that ISA is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act III ALLEGED UNFAIR LABOR PRACTICES A Facts 1 Background Lederle operates a pharmaceutical manufacturing plant at Pearl River, New York It also operated a warehouse facility at Blauvelt, New York The Blauvelt warehouse employees were employed by Ogden Allied, a contrac- tor, and were represented by Local 32E, Service Em- ployees International Union, AFL-CIO (Local 32E) In March 1987, the Blauvelt warehouse operation was moved to Oak Tree Road, in Palisades, New York The Oak Tree warehouse stored, packed, and assembled packaging supplies such as cotton and bottles for the Pearl River plant When supplies were needed, orders for such materials would be sent from the plant to Oak Tree where they were packed and delivered to the plant Virtually all of the Blauvelt warehouse employees, clerical employees, and supervisors transferred to Oak Tree, which became fully operational in March 1987 • On March 1, 1987, ISA became the contractor which employed the Oak Tree warehouse and clerical employ- ees The Oak Tree warehouse manager is Larry Kirchner, a Lederle employee who formerly worked at Blauvelt He is in overall charge of the facility and its mainte- nance, and it is his responsibility to ensure that the equip- ment is safe, and that Food & Drug Administration rules regarding cleanliness are followed Michael Ackerman, who also was employed at Blau- velt and moved to Oak Tree, is an ISA supervisor whose job it is to oversee ISA's operation of the warehouse Ackerman's responsibilities include the direct supervision of ISA's warehouse and clerical employees, maintaining payroll and time records, and discipline and grievance handling His assistant, Steven Smedley, also directed the workers Rod Iaccoppmo, a Lederle employee employed at Oak Tree, was Lederle's liaison with ISA He was told by the Pearl River plant how many orders to expect and he would advise Ackerman if a large number of orders would be arriving, or if a rush order had to be done Ackerman was expected to have the orders filled in the order in which Iaccoppmo directed In June 1987, a new assembly process was instituted at Oak Tree, which in- volved counting items, such as bottles and caps Iaccop- pmo instructed and trained the ISA employees in that process, including the use of digital scales 2 The organizing drive (a) The employees contact the Joint Board Samuel McCoy, an ISA warehouse employee, stated that the paychecks given to employees by ISA bounced five or six times After the first time, in about September 1987 his fellow workers spoke about the need for a union, and they asked him to begin a union drive McCoy urged them to wait, and 2 months later, after their paychecks bounced two or three more times, or their checks were delivered late, it was agreed that he 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD should contact a union About five warehousemen and a few clerical employees spoke about the need for a union during lunch and after work McCoy called the Joint Board He arranged a meeting at a restaurant which was attended by seven unit em ployees and at which union cards were signed He also later obtained signed cards and sent them to the Joint Board On November 10 1987 the Joint Board filed a petition for representation with the Board It was received by Kirchner on November 16 Shortly before that date ISA Supervisor Ackerman observed groups of employees speaking together in the warehouse He asked his assist ant Steven Smedley what was happening and was told that the workers had gotten together to start a union and had signed cards for it (b) The events of November 16 Kirchner stated that when he received the petition on November 16 he wanted to find out what the Joint Board was and why the petition had been sent to Le derle and not ISA He first approached a group of workers in the shipping area and asked them if they knew what the Joint Board was They either denied knowing or made no response He asked the same ques ton of a group of workers in the receiving area McCoy answered that he knew about it What happened next is in dispute McCoy stated that Kirchner asked him to accompany him to his office McCoy further testified that at their meeting in Kirchner's office, Kirchner told him that he better watch your ass from now on McCoy replied in kind Kirchner also said that Lederle did not want a union at Oak Tree, and that Lederle could get nd of or fire ISA, and all the workers would be done Kirchner concluded by saying that if McCoy had any problem he should have come to him and predicted that he would be out the door by the end of the month Kirchner s version is that McCoy asked to speak to Kirchner about the Joint Board in his office where McCoy said that the employees wanted a union, and ad mitted contacting the Joint Board in their behalf Kirchner asked McCoy why the petition was addressed to Lederle and suggested that McCoy send it to McCracken ISA s president Kirchner denied threaten ing McCoy and denied saying that he or Lederle was opposed to a union 3 Kirchner called McCracken and told him that he re ceived a union petition addressed to Lederle regarding the warehouse employees joining a union Kirchner told McCracken that the petition should have been addressed to ISA That day, Kirchner showed the petition to Ackerman and told him that it should have been sent to ISA 3 Kirchner further attempted to demonstrate the absence of union bias by testifying that after the move to Oak Tree the representative for Local 32E which had formerly represented the workers told him that he wanted to speak to the employees about union representation Kirchner told him that they were not Lederle employees but that he would put him in touch with their supervisor Michael Ackerman Kirchner did so and made the facility available for a meeting which was held Kirchner told him that employees have a nght to vote on the issue and if they have a union they have a union Ackerman testified that he told his assistant Smedley that he had ambivalent feelings concerning a union and he hoped the workers knew what they were doing and getting into by organizing a union He told Smedley that standard operating procedure and the work attitude could change Later, Ackerman spoke to McCoy in his office They differ as to what was said McCoy testified that Acker man called him into his office, banged on his desk and told him that if he (Ackerman) would have foreseen this McCoy would not have been hired Ackerman also said that the company does not want a union, and that a union would come in only over his dead body Ackerman concluded by saying none of us are going to have a job, and that we are all going to be gone Ackerman s version of this conversation is that he was approached by McCoy Ackerman said that he wished that McCoy could have done it differently before [McCoy] went and did all this Ackerman added that standard operating procedures might have to be followed and new ones might have to be added which would have to be followed by the book Ackerman also admitted asking employee Roger Tichi if the men were trying to get a union and how he thought a union would make things better for them Tichi replied that he believed that a union meant more money Ackerman also asked leadmen Gregory Howard and Fred Schofer for their feelings concerning the Union Both said that they were not approached by the workers 4 Tichi testified that Ackerman told him thlt he was a fool and stupid to try to organize the warehouse and that he should not have participated in the union effort He asked why he signed the union card and told him that he should not have signed it Ackerman concluded by telling Tichi that if the Union was successful every one would probably lose their jobs (c) Subsequent events in November Kirchner stated that on November 17 McCracken gave him a copy of a letter dated November 16 from Robert Cope ISA s attorney The letter addressed to Lederle states as follows ISA Inc has previously provided personnel serv ices to your company Please be advised that as of November 13, 1987 ISA has ceased operations We are currently m the process of collecting receivables and attemptmg to ensure that payment is forwarded to the Internal Revenue Service and other statutory creditors Accordingly, we request that you for ward final payment for services corresponding to 4 The leadmen do not appear to be statutory supervisors Michael Ack erman testified that they did physical work with the workers including loading trucks but that in addition they also prepared paperwork such as bills of lading checking orders and determined which order goes on which truck INTERNATIONAL SHIPPING ASSN 1065 the November 13 payroll to ISA in order that those moneys might be forwarded to statutory creditors Kirchner told McCracken that he could not stop oper- ations on November 13 because employees were working on November 16 and 17 and had to be paid On November 19, Lederle sent the following letter to ISA We have received from your attorney Robert L Cope a letter dated November 16, 1987 advis- ing us that your company will cease operations on November 13, 1987 Our attorney, John M Mackey has discussed this letter with Mr Cope Mr Cope had a misunderstanding as to the exact timing of the cessation of operations and that your employees will actually continue working through November 20, 1987 We regret that you did not provide us with the 30 days notice of termination as provided in Article V of our Agreement dated March 1, 1987 Howev- er, under the circumstances, we accept your request to terminate the agreement By letter of the same date, Cope wrote the following to Lederle The purpose of this letter is to clarify our letter of November 16, 1987, wherein we informed you that ISA has ceased operations ISA has ceased operations as of the close of the payroll week beginning November 13, 1987 That is, ISA will no longer be able to provide personnel as of the close of business on November 20, 1987 ISA employees will be paid on November 20, 1987, for all work performed through November 20, 1987 It will be necessary for your company to make its own arrangements to provide personnel for the week beginning November 23, 1987 We are currently in the process of collecting re- ceivables and forwarding payment to the Internal Revenue Service and statutory creditors of ISA We request, therefore, that you forward your final payment to ISA so that the proper payment may be made Ackerman testified that on November 19, Kirchner told him that ISA was losing money, and that the fol- lowing Friday ISA would be going out of business Kirchner further told him that McCracken wanted to return on Monday and supply workers to the warehouse, but under a different company name Ackerman replied that that plan did not sound "kosher," and he doubted that Lederle would approve it ISA President McCracken visited Oak Tree and called a meeting of all employees in the cafetena He told them that this was their last day, he had financial trouble, could not pay his bills, and that he was bankrupt and going out of business According to employee Preston Smith, he also told them that if anyone wanted to know exactly what happened, he should ask after the meeting Employee McCoy stated that after the workers re- ceived their final pay, and were leaving the meeting he heard McCracken tell Michael Ackerman, "I told you these guys were union happy I told you this would happen" McCracken asked for Ackerman's home phone number Employee Tichi stated that he went from the cafeteria to the locker room and was told by Ackerman "thanks for making us all lose our jobs You guys shouldn't have started this in the first place" Twin re- turned to the cafeteria where McCracken told him and a couple of the employees, "if you guys didn't start this stupid union we would have never been in this mess in the first place" Two days later, on November 22, McCracken called Ackerman and told him that Lederle would not permit him to resupply the warehouse with employees From November 20 until mid-December, Lederle op- erated the warehouse using supervisors from its Pearl River plant 3 The hire of employees Carol Galgano, the office manager for Empire Omm Temporary Services, testified that in early December 1987, her agency was asked by Lederle to supply tempo- rary help for the Oak Tree warehouse She said she would place a newspaper advertisement for the people needed Kirchner told her that if the following people re- sponded to the ad, he was not interested in interviewing them McCoy, Tichi, Rodney Morgan, Calivar Acosta, Richard Acosta, Ramon Diaz, Michael Beybre, 5 John Solomone, and Calvin Alleyne Kirchner also gave Galgano the names and phone numbers of five people who worked for him in the past who he wished to employ again They were Michael Ackerman, Gregory Howard, Fred Schofer, Stephen Ackerman, and Gary Germand 6 Galgano called them and asked them to fill out applications at her office if they were interested in a position at Oak Tree They all came and completed applications The following day Kirchner called Galgano and told her he decided not to use the men She called all but Ackerman, who had al- ready started work that day, and told them that there was a change and that she could not use them at Oak Tree Eleven warehousemen, including Michael Ackerman, were hired through the advertisement Galgano initially interviewed the applicants Kirchner did the second interview and he decided who would "best suit our oper- ation" Kirchner . testified that he told Galgano that he did not wish to speak to certain former employees because of the pending complaint—the matter was in litigation and he "kept away from those people" and "didn't want to in- volve us any further," until the matter was resolved Kirchner told four clerical employees to go to Empire Omni, and he then told that agency that Lederle would rehire them One clerical, Sharon Livermore, did not return to work After he returned to work at Oak Tree, Ackerman called employees McCoy and Preston Smith He told 5 Beybre's name is as spelled in the complaint a Germand's name is as spelled in the complaint 1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD McCoy that the company asked him to call to see if he wanted to return to work McCoy said that he did not know Ackerman replied that the company was upset about the union and they really did not want the people back, but had to go through this procedure He called McCoy a troublemaker and accused him of rummg things there Ackerman told Smith that Kirchner asked him to call all the workers back, but Kirchner s boss had Just re coved a letter from the Board and wanted to defer hinng Ackerman further testified that Kirchner told him that a change had occurred, and they would not be able to rehire any of the former employees Thereafter Empire Omni was replaced by Ogden Allied as the new employer of the warehouse and den cal employees Employee McCoy stated that he was not contacted by Empire Omni regarding work at Oak Tree However, he was offered a job by Ogden Allied which he declined because he had another job Employee Preston Smith stated that he was among those discharged by ISA on November 20 and was hired about 5 months later by Ogden Allied at the Oak Tree warehouse, where he is represented by the Joint Board Employee Roger Ticlu stated that, after November 20 1987 he was offered a job at Oak Tree but was not em ployed there at the time of the heanng 4 Joint employer status The complaint alleges that ISA and Lederle are joint employers of ISA s employees at the warehouse by virtue of Lederle s possession and exercise of substantial control over the labor relations policies and practices of ISA, with respect to the wages, hinng and supervision of employees and other terms and conditions of employ ment of those employees Lederle denies that allegation (a) The contract The contract between Lederle and ISA executed on March 1 1987, provides that ISA will furnish workers to perform the shipping and receiving function at Oak Tree and agrees to perform such work as is assigned to it as an independent contractor, in a careful, proper and workmanlike manner The contract further provides that ISA shall comply with all Lederle rules and regula lions applicable to the work ISA provided insurance for the workers The benefits received by them were provid ed by ISA and were not Lederle benefits The contract included the rates of pay for the employees covered by it, and Lederle agreed to pay ISA for costs incurred by ISA such as payroll and insurance (b) Supervision of ISA employees Employee Preston Smith testified that on a few occa sons Lederle Official Kirchner asked him to perform certain tasks, such as assembling cabinets, movmg small items or doing some job in the office Preston conceded that ISA Official Michael Ackerman gave him work di rections on a day to day basis Employee Roger Twill stated that Kirchner occasion ally told him to unload a truck Employee McCoy stated that on a couple of occa sions Kirchner, while walking past him asked him to move a few skids and pick up paper or garbage that was on the floor Once he told McCoy and others to move a load from a truck to a certain area McCoy also testified that he asked Kirchner for 1 week s leave without pay Kirchner told him not to worry about it and that he (Kirchner) would take care of it McCoy took the leave After the ISA employees paychecks bounced on two separate occasions Kirchner told ISA President McCracken that if he could not guarantee the checks he should pay the employees in cash Michael Ackerman is the direct supervisor of the ISA warehouse and clencal employees Each day he receives orders from the Lederle Pearl River plant and plans the day's workload based upon the number and kind of orders received If Kirchner was contacted concerning a rush order Kirchner told Ackerman to have it complet ed quickly Ackerman gives the work orders to the den cal to complete, and distnbutes work assignments to the warehousemen each morning Ackerman testified that he decided whether overtime was needed and who to assign Kirchner s affidavit stated that Ackerman and Lederle Official Iaccoppino mutually agreed as to whether overtime should be worked but in explanation of this he testified that when Ackerman announced at the end of the day that work had not been finished, Iaccoppmo told him to get the job done Kirchner conceded patrolling the warehouse looking for spills and unsafe or unclean conditions He stated that when he saw such conditions he told Ackerman about It and perhaps told an ISA employee to pick up some paper from the floor As set forth above Iaccoppmo trained Ackerman and the other ISA employees on a new order assembly proc ess which was instituted in June 1987 Iaccoppmo also did safety training of the workers Ackerman also trained ISA workers (c) Hire fire and discipline Kirchner stated that Michael Ackerman hired the ISA employees Employees McCoy and Smith testified that when they asked Kirchner about a job at the warehouse he referred them to Ackerman McCoy stated that Kirchner told him (McCoy) to tell Ackerman to hire him Two disciplinary problems were testified to The first, concerning Ackerman s assistant, Steven Smedley, oc cuffed when Kirchner and Iaccoppmo observed Smed ley ndmg on a forklift As a supervisor, he should not have been operating the equipment Kirchner and lac coppmo mentioned this to Ackerman who called ISA Official McCracken McCracken and Ackerman spoke to Smedley and told him not to nde the equipment An other instance of discipline involved clencal employee Sharon Livermore who made numerous mistakes Acker man handled this hunself INTERNATIONAL SHIPPING ASSN 1067 Neither Kirchner nor Iaccoppmo was involved in any other way with discipline of ISA employees When all the employees were terminated on November 20, McCracken made that announcement (d) Benefits and uniforms ISA's employees were paid by ISA, and received ben- efits provided by that company They did not receive Lederle's benefits The workers' hours were called in to ISA's office by Ackerman on a weekly basis The warehousemen wore uniforms—pants and a shirt with the employee's name on it A uniform supply com- pany furnished the uniforms and then billed ISA for them After the move from Blauvelt, jackets bearing Le- derle's name were distributed to everyone involved in the move Lederle did this to show its appreciation for their help in making the move to Oak Tree successful The ISA warehousemen, the general contractor's fore- man, and' Lederle's Pearl River plant manager all re- ceived such jackets IV ANALYSIS AND DISCUSSION A The Joint Employer Issue In Chesapeake Foods, 287 NLRB 405, 407 (1987), the Board set forth its test for determining an employer's al- leged joint employer status [W]hether two separate entities share or codeter- mine "those matters governing the essential terms and conditions of employment" and to establish such status "there must be a showing that the [al- leged Joint] employer meaningfully affects matters relating - to 'the employment relationship such as hiring, firing, discipline, supervision and direction" I do not believe that the evidence supports a finding of joint employer status between Lederle and ISA for ISA's warehouse employees The contract between the parties states that ISA is an independent contractor Cf Sun-Maid, 239 NLRB 346, 348 (1978) With respect to the day-to-day operations of ISA, Michael Ackerman, ISA's onsite supervisor, is the direct supervisor of ISA's employees He gives them their assignments, records their hours, and is directly in- volved in their discipline The work performed by ISA's employees at the ware- house—the filling of orders for Lederle's Pearl River plant—is necessarily dependent upon the needs of that plant The General Counsel argues that because Acker- man organizes the workday of the ISA workers based upon the orders received from Pearl River and is some- times told by Lederle officials to have a rush order filled quickly, that that is evidence of a joint employer rela- tionship I do not agree Ackerman is given the orders which had to be performed, and he assigns the work to the ISA workers Lederle does not make the assignments of work to the ISA employees Chesapeake Foods, supra, TLI, Inc , 271 NLRB 798 (1984) Although there were instances where Lederle Official Kirchner asked ISA warehousemen to perform certain tasks, the nature of the work requested and the number of times they were so asked to perform the work does not support a finding that Kirchner "meaningfully" su- pervised or directed the ISA employees Thus, occasion- ally, Kirchner asked employee Tichi to unload a truck, a couple of times, Kirchner asked McCoy to move a few skids and pick up paper or garbage, and once asked him and others to move a truck's load, a few times Kirchner asked Smith to assemble cabinets, move small items, or do a small job in the office These few occasions when Kirchner asked certain ISA workers to do certain tasks were isolated, "limited and routine" and basically unre- lated to the general types of work performed by those employees TLI, supra ' Although the record is not clear as to how it was de- cided whether overtime would be worked, the testimony of Ackerman and Kirchner taken together establishes that Ackerman, who was aware of the workload and status of the work remaining at the end of the day, in- formed Lederle Official Iaccoppino that the work had not been completed' and Iaccoppmo authorized overtime This is consistent with Lederle's overall responsibility for its warehouse, and its obligation to ensure that' its Pearl River plant's needs are met It is not suggestive of a Joint employer relationship, especially since Ackerman select- ed the ISA employees to perform the overtime work and supervised the work 7 Regarding the hire of ISA employees, employee McCoy stated that when he asked Kirchner about a job he referred him to Ackerman with the instruction that McCoy should tell Ackerman that he should be hired McCoy was hired by Ackerman, but there was no testi- mony concerning the discussion between McCoy and Ackerman This one isolated, vague incident is not proof that ISA hired McCoy because of Kirchner's instruction or that that order was even conveyed by McCoy to Ackerman As to the disciplinary incident regarding Smedley, Le- derle officials reported his operation of equipment to Ackerman Ackerman spoke to Smedley with ISA Presi- dent McCracken Thus, Lederle was not involved with that discipline Chesapeake Foods, supra Similarly 'the fire of all employees on November 20 was done by ISA President McCracken, and not by Lederle The training of ISA employees on new equipment and methods of picking orders by Lederle Official Iaccop- pino cannot be deemed to constitute significant control over ISA's employees Once trained, Ackerman super- vised them and there was no proof that any Lederle offi- cial supervised the ISA employees' work performance or exercised any meaningful control over them Chesapeake Foods, supra The jackets given by Lederle to ISA employees and others, including the general contractor's foreman, have not been shown to be anything more than gratuities, and are not emoluments of employment Chesapeake Foods, 7 McCoy requested I week's leave without pay from Kirchner who told him that he would take care of It McCoy took the leave Inasmuch as Ackerman is in charge of ISA's time and payroll records, it must be assumed that Kirchner Informed Ackerman of this, and he then must have then approved the leave 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD supra fn 8 The fact that they bear Lederle s name does not prove that the person wearing it is employed by Le derle Based on all of the above I find that there has not been sufficient evidence adduced to prove that Lederle possessed sufficient control over the work of ISA s em ployees to qualify as a Joint employer with ISA 8 I cannot find based upon the evidence that Lederle and ISA shared or codetermined those matters governmg the essential terms and conditions of employment of ISA s employees Club A 285 NLRB 521 (1987) 9 V THE ALLEGED 8( A ) ( 1 ) VIOLATION I credit McCoy s testimony that on November 16 after telling Kirchner that he knew what the Joint Board was, Kirshner told him that he better watch himself from now on, and that Lederle could get rid of ISA and the employees and threatened that McCoy would be out the door shortly I also credit McCoy s further testimony that Acker man told him that if Ackerman had foreseen this (an ob vious reference to the Union) McCoy would not have been hired Ackerman added that the company did not want a union and threatened that all of the ISA people would be fired I credit McCoy because he testified in a forthright candid manner and because his testimony was in part consistent with admissions made by Kirchner and Acker man about these events Thus Kirchner testified that he asked groups of workers if they knew what the Joint Board was and was upset that Lederle received the peti B I cannot find a joint employer relationship based upon McCoy s state ment which I credit that Kirchner told him that Lederle could get nd of or fire ISA that all the workers would be done and that McCoy would be out by the end of the month Although I find that these are unlawful threats they do not establish or tend to establish a joint employ er relationship The most that could be said is that the statements Imply that Lederle could cancel ISA s contract There is no allegation nor has It been proven that Lederle canceled ISA s contract or that it caused ISA to cease doing business on November 20 and fired its employees The evidence is sufficient based upon the statements of Ackerman and McCracken that ISA Itself decided to close on November 20 and dis charge the work force 9 The cases cited by the General Counsel in support of a joint employ er theory are inapposite or distinguishable upon their facts Sun Maid Growers 239 NLRB 346 348 (1978) was decided upon the old theory which enabled joint employer status to be found if the alleged jomt em ployer exercised effective control over the working conditions of the employees The Board found that It had controlled the employees per formance by originating their work schedule telling them what work needed to be done and regularly instructing them as to the work to be done without contacting their supervisors There unlike here the parties did not agree that the subcontractor was an independent contractor In Metcalf 223 NLRB 642 (1976) the employees of the joint employers were jointly involved in certain mining operations at one mine The em ployees of both companies worked closely together had similar job clas sit-mations and performed many of the same functions One company s su pervisors directed the other s employees In Pacemaker Driver Service 269 NLRB 971 (1984) truckdnvers of Pacemaker were leased to Carrier to provide delivery service for Carrier In finding a joint employer relation ship the Board noted that Carrier maintained day to day control over the drivers Carrier could reject and discharge any dnver who in its judg ment It did not desire to dnve for It and the drivers routes were direct ed and controlled by Carrier In Mar Del Plata Condominium 282 NLRB 1013 (1987) a condominium association and a property management com pany were found to be joint employers where both companies jointly (a) hired and fired workers and (b) prepared the building s budget which de termmed the staffing and employees wages and benefits tion Kirchner s grant of access to Local 32E to see Ack erman and hold a meeting does not demonstrate a lack of union animus That umon had been decertified by the Board and represented no threat of unionization Acker man conceded telling McCoy that he wished that McCoy would have done this differently and noted that new rules might be added which must be strictly followed Ackerman also admitted asking employee Tichi if the men were trying to get a union and how he thought a union would make things better for them He also asked employees for their feelings concerning the Union and why they signed cards for it I credit Ticlu s testimony that he was told by Acker man that if the Union was successful everyone would probably lose their jobs Thus, I find that Kirchner s and Ackerman s threats to discharge employees because of their interest in the Union and Ackerman s interrogations of employees con cernmg their union interests violate Section 8(a)(1) of the Act VI THE ALLEGED 8(A) ( 3 ) VIOLATIONS A The Discharges On November 20 ISA President McCracken visited the Oak Tree warehouse and fired all the employees The complaint alleges that the discharges were made because of the employees interest in and activities on behalf of the Joint Board The evidence in support of that theory is substantial As set forth above on November 10, the Joint Board filed a petition to represent the ISA warehouse workers Kirchner received it on November 16 and on that day he mformed ISA President McCracken and ISA Super visor Ackerman of it Ackerman immediately mterrogat ed employees concerning their mterest in the Union and threatened employees with discharge if the Union was successful He alco told them that the company did not want a union and that a umon would come in only over his dead body Only 4 days later, McCracken announced that ISA was out of business due to financial reasons and he fired all ISA s employees McCoy credibly testified that he heard McCracken tell Ackerman that I told you these guys were union happy and that this would happen Ticlu who was earlier interrogated and threatened by Ackerman was thanked by Ackerman for making ev eryone lose their jobs, and was warned that the men should not have started this in the first place Tichi was also told by McCracken that day that if the men had not started this stupid union we would have never been in this mess in the first place The timing of the discharges coming only 4 days after the receipt of the Joint Board s petition which was ac compamed by the immediate unlawful interrogations and threats of discharge of the employees, and expressions of union animus combined with the postdischarge admis mons of ISA officials that in effect the reasons for the discharges were the workers union activities, provide ample support for a finding that the discharges were INTERNATIONAL SHIPPING ASSN 1069 made because of the workers' exercise of their Section 7 rights I accordingly find and conclude that General Counsel has made a prima facie showing that the employees' union activities were a motivating factor in ISA's deci- sion to discharge them Wright Line, 251 NLRB 1083 (1980) ISA's defense is that it ceased doing business and dis- charged all the employees because of financial difficul- ties On November 16, the same day it received notice of the petition's filing, ISA's attorney sent Lederle a letter advising that it ceased operations as--of November 13 When Kirchner advised McCracken that he could not have ceased operations on November 13 because em- ployees were employed on November 16 and 17 and had to be paid, ISA's attorney then advised that ISA would close on November 20 ISA's attorney's letters asked Lederle to send its final payments so that such funds would be forwarded to "statutory creditors," including the Internal Revenue Service The only other references to ISA's financial condition were (a) Ackerman's testimony that on No- vember 19 he was told by Kirchner that ISA was losing money and would go out of business the following day, and (b) McCracken's statement to the fired workers on November 20 that ISA had financial trouble, was bank- rupt, and could not pay its bills ISA's defense of financial distress has not been proven Its attorney's letters that moneys would be sent to "statu- tory creditors" proves nothing, as creditors who are owed money, for wages, or taxes, are such creditors McCracken's self-serving statements that ISA was bank- rupt cannot be accepted There was no hint of ISA's al- leged financial difficulty prior to November 20 Al- though some payroll checks bounced on a few occasions, this occurred long before the union drive, and were quickly covered The workers never failed to be paid for their work In addition, the precipitate nature of ISA's demise— occurring in the middle of its contract with Lederle and according to which ISA was supposed to give 30 days' notice of cancellation—which was not done, demon- strates that the end of the business was not due to finan- cial reasons Even ISA's attorney was not aware of the actual closing date of the business and had to amend his letter to state a different date that ISA would close This establishes that the decision to close and fire the employ- ees was made hastily, in response to the Joint Board's pe- tition I accordingly find that ISA has not proven that its em- ployees would have been discharged in the absence of their union activities Wright Line, supra Inasmuch as I have found that Lederle and ISA were not joint employ- ers, I cannot find that Lederle is responsible for the dis- charges of November 20 I therefore find and conclude that the following em- ployees of ISA were discharged by it for their union ac- tivities '0 10 ISA's closing of its business is not alleged as an unfair labor prac- tice, and no remedy is sought as to that Warehouse Employees Steven Ackerman Gregory Howard Ramon Diaz Samuel McCoy John Salamone Rodney Morgan Calivar Acosta Fred Schofer Richard Acosta Steven Smedley Calvin Alleyne Preston Smith Michael Beybre Roger Tichi Gary Germond Clerical Employees Christine Bromley Sharon Livermore Catherine Dava Myra Sanford Mary Ann Jenkins B The Refusals to Hire the Employees , The complaint alleges that since mid-December 1987, Lederle refused to employ any of the warehouse employ- ees, except the clerical employees Empire Omni Temporary Services was engaged by Lederle to supply warehouse employees Kirchner told Empire's official, Galgano, that he was not interested in interviewing 10 named people, but would want to hire 5 other named people, including Michael Ackerman Gal- gano called the five and they completed applications, but then Kirchner decided not to hire them Galgano called all but Ackerman, who had already begun work, and told them that they were not needed Eleven people were hired Apparently the only former Oak Tree worker hired was Michael Ackerman The above establishes that General Counsel has made a prima facie showing that the employees' union activi- ties was a motivating factor in Lederle's refusal to hire them Lederle refused to consider any of the former Oak Tree personnel—those who were most qualified, by virtue of their training and experience—to perform the work at the warehouse Kirchner's animus toward the Joint Board is reflected in his conversation with McCoy 1 month earlier, and it is obvious that he believed that the warehousemen were responsible for bringing in the Joint Board Kirchner's admitted explanation of his refusal to con- sider the discharged warehousemen is evidence of a vio- lation of Section 8(a)(4) of the Act He would not speak to them because of the pendency of the complaint, and the pending litigation A refusal to hire employees for that reason violates Section 8(a)(4) of the Act Woodhne, 278 NLRB 1141, 1237 (1986), Thriftway, 276 NLRB 1450, 1464 (1985), Crest, 270 NLRB 47, 52 (1984) Although no charge al- leging a violation of Section 8(a)(4) has been filed, Le- derle's failure to hire these employees was included in the original charge and complaint, was fully litigated at the hearing, and General Counsel's evidence concerning this issue was, in part, the testimony of Kirchner I thus find that Lederle has not been prejudiced by General Counsel's failure to amend the complaint to allege a vio- lation of Section 8(a)(4) of the Act r. 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I accordingly find and conclude that Lederle s failure and refusal to hire the following employees violated Sec non 8(a)(1), (3), and (4) of the Act Warehouse Employees Steven Ackerman Samuel McCoy Calivar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith Gary Germond Roger Tichi Gregory Howard VII THE SETTLEMENT Before the complaint was issued settlement discussions took place between Judy Sandler, counsel for General Counsel and Gerald Clendenny Lederle s attorney Sandler suggested that Lederle recommend to the new contractor Ogden Allied, that it hire the employees for merly employed by ISA Lederle made such a recom mendation and thereafter when Ogden Allied began op crating it hired all or virtually all of the discharged workers No backpay has been offered or paid to any of the employees In addition, Sandler asked Lederle if it could intercede with Ogden Allied to resolve the issue of union recogni tion Thereafter, Ogden Allied voluntarily recognized the Joint Board and has entered into a collective bargain mg agreement with it The hire of the employees and the recognition of the Joint Board occurred after the issuance of the complaint Clendenny stated that Sandler told him that if Lederle interceded with Ogden Allied the situation would be re solved Clendenny believed that that statement constitut ed a representation that the Instant case would be settled and withdrawn if Lederle (a) recommended the rehire of the employees by Ogden Allied and (b) suggested that Ogden Allied resolve the union representation issue The Joint Board has requested withdrawal of its charge, and the Regional Director has refused to ap prove that withdrawal Lederle argues that the Joint Board s request for with drawal of its charge should be approved by the Regional Director citing Independent Stave Co 287 NLRB 741 (1987) and further argues that by General Counsers sug gestmg the steps which Lederle ultimately took and by stating that the matter would thereby be resolved the Regional Director cannot now refuse to approve the Joint Board s request for withdrawal Counsel for General Counsel argues that no specific representation was made to Lederle that if it interceded with Ogden Allied the complaint would be dismissed Moreover, she states that the dischargees have not been offered nor have they received any backpay and that they object to the Joint Board s request for withdrawal of its charge I reject Lederle s arguments that the charge must be dismissed pursuant to Independent Stave or upon a theory that General Counsel is estopped from refusing to approve the withdrawal request because of her alleged statements to Clendenny Independent Stave held that, in evaluating a settlement agreement in order to assess whether the purposes and policies underlying the Act would be effectuated by its approval the Board would examine all the surrounding circumstances including (1) whether the charging party(ies) the respond ent(s) and any of the individual discrimmatee(s) have agreed to be bound and the position taken by the General Counsel regarding the settlement, (2) whether the settlement is reasonable in light of the nature of the violations alleged, the risks inherent in litigation and the stage of the litigation, (3) whether there has been any fraud coercion or duress by any of the parties in reaching the settlement, and (4) whether the respondent has engaged in a history of violations of the Act or has breached previous set tlement agreements resolving unfair labor practice disputes [287 NLRB at 743] It must be noted initially that the precise terms of the settlement agreement are not before me If the agreement was put in wntmg, it was not offered at the heanng The evidence of the agreement is based upon the representa tions of counsel for Lederle and General Counsel at the hearing Here, the Charging Party and one respondent Le derle, have agreed to be bound by the settlement None of the 20 employees have agreed to be bound, and they object to the terms of the settlement agreement, appar ently because they are not to receive any backpay 1' General Counsel has objected to the terms of the settle ment agreement and the Regional Director has refused to approve the Joint Board s request for withdrawal of its charge The settlement was arnved at some time after the issu ance of complaint which alleged the discharge of 20 em ployees and the refusal to rehire 15 of them and threats and interrogations of employees In settlement of the complaint certain workers were reinstated, and others offered remstatement who declined such offers 12 In ad dition Ogden Allied the new employer of the employ ees has entered mto a contract with the Joint Board for those workers The complaint contained no allegation concerning the employer s alleged failure to recognize and bargain with the Joint Board and thus that union obtained more in the settlement, than it could have achieved after trial Further there is no evidence of fraud coercion, or duress in the settlement and there is similarly no evi dence that Respondents have engaged in a history of vio lations of the Act Nor is there evidence of breach of any prior settlement agreements Nevertheless I cannot find that the non Board settle ment is reasonable because it contains no provision for backpay or the posting of a notice Independent Stave I ' No evidence was presented at the heanng as to the amount of back pay due 12 Inasmuch as the precise terms of the settlement have not been placed on the record I make no findings as to who has been reinstated or offered reinstatement Such matters are best left to the compliance stage of this proceeding INTERNATIONAL SHIPPING ASSN 1071 provided for the payment of some backpay-10 percent, and more importantly, the three individuals involved therein were the charging parties and they agreed to the terms of the settlement Significantly, the fourth individ- ual, Raley, who did not sign a settlement agreement, was not held to be bound by the terms of the agreement Thus, Independent Stave's emphasis upon whether "em- ployees affected by the dispute have agreed to the settle- ment," and its refusal to bind Raley to the settlement demonstrate that the Board will not accept a settlement over the objection of the employees affected thereby, es- pecially where little or no backpay was included in the settlement Independent Stave's reliance upon the dissent in Clear Haven Nursing Home, 236 NLRB 853 (1978), also establishes the Board's reluctance to approve settle- ment agreements which ignore employee's desires The dissent in that case noted that although no backpay was provided for in the settlement, the employees voted in favor of the settlement by a vote of 60 to 14 Similarly, cases cited in Independent Stave show that the Board was conCerned with the remedy afforded to the employees and whether they were in favor of the settlement APD, 253 NLRB 468, 470 (1980), House of Adler, 206 NLRB 228 fn 1(1973) In both cases, the, employees objected to the terms of the settlement which failed to provide any backpay In addition, the absence of a notice posting, advising the employees that the employer will not violate the Act in certain specific ways, is necessary here in order to re- assure the workers of their rights under the Act The un- lawful activity, occumng immediately after the Joint Board's petition was received, was of a drastic nature— the firing of the entire bargaining unit, interrogations and threats and refusals to rehire them The effect upon the employees was therefore overwhelming, and a notice posting is necessary to advise them of the employer's commitment to respect their Section 7 rights Nor do I find that General Counsel, in her conversa- tion with ,or representations to Lederle's attorney, stated that if the complaint was resovled in a certain manner, the case would be dismissed It appears that there were suggestions and recommen- dations as to how the matter could be resolved Never- theless it does not appear that a specific quid pro quo was ever set forth It should also be noted that it appears that Lederle used its best efforts and acted in good faith in securing the reinstatement of the employees and sug- gesting to Ogden Allied that it negotiate with the Joint Board—which led to its recognition and a contract However, it cannot be said that the efforts it undertook, were a condition precedent to the General Counsel's dis- missal of its complaint I accordingly find and conclude that the Regional Di- rector properly refused to approve the Joint Board's re- quest to withdraw its charge and that no basis exists for my approval of the non-Board settlement agreement CONCLUSIONS OF LAW 1 Respondents International Shipping Association, Inc (ISA) and Lederle Laboratories, a Division of American Cyanamid, Inc (Lederle) are employers en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Greater New York Joint Board, Amalgamated Clothing and Textile Workers Union, AFL-CIO, CLC is a labor organization within the meaning of Section 2(5) of the Act 3 Lederle and ISA are not and have not been joint employers of the employees of ISA at the Oak Tree warehouse 4 By threatening employees that Lederle would cancel its contract with ISA, and thereby cause the layoff of all the warehouse employees if the employees joined or supported the Joint Board, Lederle violated Section 8(a)(1) of the Act 5 By interrogating employees about their union activi- ties and sympathies, and by threatening employees with discharge if they joined or supported the Joint Board, ISA violated Section 8(a)(1) of the Act 6 By discharging the following employees on Novem- ber 20, 1987, because they supported or assisted the Joint Board, ISA violated Section 8(a)(1) and (3) of the Act Warehouse Employees Steven Ackerman Samuel McCoy Calmar Acosta Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon Diaz Preston Smith Gary Germond Roger Ticlu Gregory Howard Clerical Employees Christine Bromley Sharon Livermore Catherine Dava Myra Sanford Mary Ann Jenkins 7 By refusing to employ or offer to reemploy the fol- lowing employees in about early December 1987, be- cause they supported or assisted the Joint Board, and be- cause a complaint was pending Lederle violated Section 8(a)(1), (3), and (4) of the Act 13. Steven Ackerman Samuel McCoy Calivar Acosta , Rodney Morgan Richard Acosta John Salamone Calvin Alleyne Fred Schofer Michael Beybre Steven Smedley Ramon DiazPreston Smith Gary Germond s Roger Tichi Gregory Howard 8 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act ' 3 Although it appears that certain employees have been reinstated or offered reinstatement, I will leave to the compliance stage of this pro- ceeding the determination as to which specific employees have been so treated 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that the Respondents have violated the Act in certain respects I shall recommend that they cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act With respect to those employees who have been dis charged by ISA and not reinstated by Lederle, I shall recommend that Lederle offer them full and Immediate reinstatement to their former positions or if those jobs no longer exist to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed I shall also recommend that, as to all the employees discharged on November 20, 1987 ISA shall make those employees whole for any loss of earnings they may have suffered because of the discrimination practiced against them I shall further recommend that as to all the employees that Lederle refused to employ in December 1987 that Lederle shall make them whole for any loss of earnings that they may have suffered because of the discnmma tion practiced against them ISA ceased doing business on November 20 1987 It has not been alleged that ISA ceased operations for un lawful reasons and I accordingly cannot make any find mgs, affecting ISA as to that issue Therefore, Inasmuch as the employees were discharged by ISA on the day it closed the backpay of those em ployees terminated as of the date of the closing of ISA s operations at the Lederle warehouse ISA Attorney Cope s letter to Lederle, dated Novem ber 19 stated that the employees would be paid on No vember 20 for all work performed through November 20 In the event that that has not been done I will rec ommend that ISA make employees whole for backpay for the day of November 20 1987 Inasmuch as I have found that ISA and Lederle are not joint employers, I will treat them as separate employ ers The backpay liability of Lederle commences when the employees were refused hire by Lederle in early De cember 1987, and shall continue until they receive a proper offer of reinstatement Backpay is to be computed in accordance with the for mula set forth in F W Woolworth Co 90 NLRB 289 (1950) New Horizons for the Retarded 283 NLRB 1173 (1987) [Recommended Order omitted from publication ]