Laro Maintenance Corp.

National Labor Relations Board - Board Decisions

Apr 13, 2001

333 N.L.R.B. 958 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 958
Laro Maintenance Corporation and Local 32B-32J,
Service Employees International Union, AFL–
CIO. Case 2–CA–31249
April 13, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On July 8, 1999, Administrative Law Judge D. Barry
Morris issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel filed cross-exceptions, a supporting brief, and an an-
swering 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 af-
firm the judge’s rulings, findings, and conclusions and to
adopt the recommended Order.1
ORDER
The National Labor Relations Board adopts the recom-
mended Order of the administrative law judge and orders
that the Respondent, Laro Maintenance Corporation, New
York City, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.

Jessica Drangel, Esq., for the General Counsel.
Clifford P. Chaiet, Esq. (Naness, Chaiet & Naness), of Jericho,
New York, for the Respondent.
Ira A. Sturm, Esq. and Ronald A. Goldman, Esq. (Raab &
Sturm), of New York, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City, New York, on April 19,
1999. On a charge filed on February 17, 1998,1 a complaint was
issued on December 9, alleging that Laro Maintenance Corpora-
tion (Respondent) violated Section 8(a)(1) and (5) of the Na-
tional Labor Relations Act (the Act). Respondent filed an answer
denying the commission of the alleged unfair labor practice.

1 In cross-exceptions, the General Counsel raises issues arising from a
settlement agreement entered into by the General Counsel and the Re-
spondent which resolved prior unfair labor practice charges involving
the same parties in Cases 2–CA–29598, et. al. Specifically, the General
Counsel asks us to rule on whether the judge accurately characterized the
settlement agreement’s provisions and also to change the proposed rem-
edy in this case to reflect that the Respondent’s rescission of the unilat-
eral change and its return to the status quo ante must be consistent with
the settlement agreement in the other case. We decline to rule on these
issues at this time. While agreed to prior to the unilateral change at issue
in this case, the settlement agreement was not formally approved and
implemented until a year after its occurrence. Further, the complaint in
this case does not allege that the Respondent was not adhering to the
settlement agreement. Consequently, we do not pass on the judge’s
description of the settlement agreement or its effect on the remedy here.
We will leave these issues to compliance or other proceedings arising
out of the instant case or in Cases 2–CA–29598, et al.
1 All dates refer to 1998 unless otherwise specified.
The parties were given full opportunity to participate, produce
evidence, examine and cross-examine witnesses, argue orally,
and file briefs. Briefs were filed by counsel for the General
Counsel and Respondent on June 11, 1999.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, Laro Maintenance Corporation, a New York cor-
poration, with an office and place of business in Bayshore, New
York, provides building service and maintenance to commercial
customers, including the Port Authority Bus Terminal located in
New York City, New York, the only facility involved in this
proceeding. Respondent admits, and I so find, that it is an em-
ployer engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. In addition, it has been admitted, and I so
find, that Local 32B-32J, Service Employees International Un-
ion, AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
In late 1995, Respondent assumed the contract with the Port
Authority for the janitorial work at the Port Authority Bus Ter-
minal. At that time, Respondent hired a majority of its employ-
ees from its predecessor, Dunn & Son. Those employees had
previously been represented by the Union. Respondent recog-
nized the Union after having hired the former Dunn & Son em-
ployees. In January 1996, Respondent’s employees struck. The
strike lasted approximately 6 months. On September 27, 1997,
the Region approved a settlement agreement concerning various
unfair labor practice charges which the Union had filed. The
settlement agreement provided for a preferential list for perma-
nent workers to be comprised of former Dunn & Son employees
who were not hired by Respondent. In addition, the settlement
agreement contained the names of four employees who were to
be given preference for standby work. While the settlement
agreement was not implemented until January 1999, Respon-
dent’s policy was to follow the terms of the agreement with re-
spect to standby employees. Thus, in a letter dated December 18,
1997, from Clifford Chaiet, counsel to Respondent, it was stated,
“Laro’s policy with regard to the use of stand-by employees is
simple. Laro is abiding by the terms of the settlement . . . which
requires Laro to offer stand-by . . . opportunities to the former
Dunn & Son employees on the schedule appended to the settle-
ment papers.”
On January 7, 1998, Chaiet advised Ira Sturm, counsel to the
Union, that Respondent expected to lay off approximately 16
employees. By letter dated January 14, Chaiet advised Ron
Goldman, cocounsel to the Union, that the laid-off employees
“will be placed at the top of the standby list.” This had the effect
of removing the four former Dunn & Son employees from being
at the top of the standby list. The layoff was to become effective
the following day, on January 15. Goldman testified that on
333 NLRB No. 118
LARO MAINTENANCE CORP. 959
January 14, after he received the letter, he telephoned Chaiet and
told him that changing the method of hiring standby employees
“is going to open a whole new can of worms. That they were,
meaning Laro, . . . supposed to be abiding by the settlement. And
they could not just put these people on the top of the list like
that.” Chaiet responded, “[T]his is what Laro is doing.” Gold-
man testified that there had been no discussion of the change in
the standby policy prior to the January 14 letter.
B. Discussion and Conclusions
The Board has long held that a reasonable time between noti-
fying the Union of a proposed change and its implementation is
required under an employer’s obligation to bargain in good faith.
As was stated in Ciba-Geigy Pharmaceuticals Division, 264
NLRB 1013, 1017 (1982), enfd. 722 F.2d 1120 (3rd Cir. 1983):

To be timely, the notice must be given sufficiently in advance
of actual implementation of the change to allow a reasonable
opportunity to bargain. However, if the notice is too short a
time before implementation or because the employer has no in-
tention of changing its mind, then the notice is nothing more
than informing the union of a fait accompli. [Footnotes omit-
ted.]

In S & I Transportation, Inc., 311 NLRB 1388 (1993), the
Board held that the employer violated the Act by notifying the
union of the proposed change 2 days before its implementation.
In the instant proceeding, Respondent notified the Union of the
proposed change on January 14, only 1 day before its implemen-
tation. When Goldman protested the change, Chaiet responded,
“[T]his is what Laro is doing.” I find that Respondent’s notifica-
tion to the Union of the proposed change on January 14, 1 day
before its implementation, amounted to the announcement of a
fait accompli. In so doing, Respondent engaged in a unilateral
change, without affording the Union an opportunity to bargain,
in violation of Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. By unilaterally changing its hiring policy with respect to
standby employees, without giving the Union sufficient time to
be able to bargain, Respondent has engaged in an unfair labor
practice within the meaning of Section 8(a)(1) and (5) of the
Act.
4. The aforesaid unfair labor practice constitutes an unfair la-
bor practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in an unfair labor
practice, I shall order Respondent to cease and desist therefrom
and to take certain affirmative action necessary to effectuate the
policies of the Act. Having found that Respondent violated the
Act by unilaterally changing its practice with respect to hiring
standby employees, without adequate notice to and bargaining
with the Union, I shall order Respondent, on request from the
Union, to restore the status quo by rescinding the unilateral
change, and make all affected employees whole for losses they
incurred by virtue of the unilateral change, in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), with interest as
prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Laro Maintenance Corporation, New York
City, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unilaterally changing its hiring policy with respect to
standby employees without giving sufficient prior notice to the
Union as the exclusive representative of the employees in the
appropriate bargaining unit.
(b) Refusing to bargain with the Union in the following ap-
propriate unit:

All custodial employees employed by Respondent at the Port
Authority Bus Terminal located at 42nd Street and Eighth
Avenue, New York, NY, excluding all other employees,
guards, professional employees and supervisors as defined in
the Act.

(c) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectu-
ate the policies of the Act.
(a) On request, bargain collectively with the Union as the ex-
clusive representative of the employees in the appropriate unit,
and if understandings are reached, embody such understandings
in signed agreements.
(b) On request of the Union, rescind the unilateral change and
make whole affected employees for losses incurred by virtue of
the unilateral change, with interest, as prescribed in the remedy
section of the decision.
(c) Preserve and, within 14 days of a request, make available
to the Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at the
Port Authority Bus Terminal in New York City, New York,
copies of the attached notice marked “Appendix.”3 Copies of the
notice, on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
3 If this Order is enforced by a judgment of the United States court of
appeals, the words in the notice reading “Posted by Order of the National
Labor Relations Board” shall read “Posted Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National La-
bor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 960
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pend-
ency of these proceedings, the Respondent has gone out of busi-
ness, the Respondent shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondent at any time since Janu-
ary 14, 1998.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

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

WE WILL NOT unilaterally change our hiring policy with re-
spect to standby employees without giving sufficient prior notice
to the Union.
WE WILL NOT refuse to bargain with the Union in the fol-
lowing appropriate unit:

All custodial employees employed by us at the Port Authority
Bus Terminal excluding all other employees, guards, profes-
sional employees and supervisors as defined in the Act.

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, on request of the Union, bargain collectively with
the Union, as the exclusive representative of the employees in
the aforesaid appropriate unit, and if understandings are reached,
embody such understandings in signed agreements.
WE WILL, on request of the Union, rescind the unilateral
change and make whole affected employees for losses incurred
by virtue of the unilateral change, with interest.

LARO MAINTENANCE CORPORATION