New Breed Leasing Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1995

317 N.L.R.B. 1011 (N.L.R.B. 1995)

1011
317 NLRB No. 146
NEW BREED LEASING CORP.
1 The Respondent reinstated employees Larry Taylor, Tommie
Nunez, and Fred Williamson pursuant to a Federal district court
order in the Sec. 10(j) proceeding in Cases 21–CA–29995 and 21–
CA–30003. The Respondent then discharged them shortly thereafter.
The General Counsel alleged in Case 21–CA–30299 that these dis-
charges violated Sec. 8(a)(5), (3), and (1) of the Act. The judge dis-
missed the complaint. There were no exceptions filed to the judge’s
dismissal of these complaint allegations. The General Counsel’s lim-
ited exceptions requested that the Board make the judge’s ‘‘condi-
tional’’ findings ‘‘unconditional’’ and that we adopt these findings
in connection with the compliance stage of Cases 21–CA–29995 and
21–CA–30003 and that Case 21–CA–30299 be reconsolidated with
Cases 21–CA–29995 and 21–CA–30003. The Respondent filed no
opposition to the General Counsel’s limited exceptions.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The judge found that but for the Respondent’s desire to avoid
being bound as a successor, the Respondent would have hired all of
the former Maersk unit employees. These employees would have
comprised all of Respondent’s unit employees. In these cir-
cumstances, the Board finds that, but for Respondent’s unlawful mo-
tive, Respondent would have had a ‘‘plan to retain all’’ of the
Maersk unit employees. Love’s Barbeque Restaurant, 245 NLRB 78,
82 (1979), enfd. in relevant part sub nom. Kallmann v. NLRB, 640
F.2d 1094 (9th Cir. 1981). Therefore the Respondent was not free
to change the prevailing terms and conditions of employment unilat-
erally.
4 Although the Respondent has offered reinstatement to employees
Larry Taylor, Tommie Nunez, and Fred Williamson, pursuant to a
Federal district court order in an action brought under Sec. 10(j) of
the Act, that offer was not sufficient to qualify as a valid offer of
reinstatement as required by our order in Cases 21–CA–29995 and
21–CA–30002. Thus, Taylor, Nunez, and Williamson are subject to
the same affirmative remedies as all of the former Maersk unit em-
ployees. We further note, however, that we leave to compliance the
issue of how many discriminatees will be entitled to reinstatement
and backpay. See Laro Maintenance Corp., 312 NLRB 155 fn. 3
(1993). Accordingly, we shall modify the judge’s recommended
Order to make clear that the reinstatement and make-whole provi-
sions are subject to this limitation.
New Breed Leasing Corporation and International
Longshoremen’s and Warehousemen’s Union;
International Longshoremen’s and Warehouse-
men’s Union, Local 13; and International
Longshoremen’s and Warehousemen’s Union,
Local 63 and International Longshoremen’s
and Warehousemen’s Union, Local 63, Office
Clerical Unit. Cases 21–CA–29995, 21–CA–
30003, and 21–CA–30299
June 30, 1995
DECISION AND ORDERS
BY MEMBERS BROWN, COHEN, AND TRUESDALE
On February 14, 1995, Administrative Law Judge
Clifford H. Anderson issued the attached Order Grant-
ing Motion Severing Case 21–CA–30299 and Decision
in Cases 21–CA–29995 and 21–CA–30003. On March
21, 1995, Judge Anderson issued the attached decision
in Case 21–CA–30299. The Respondent filed excep-
tions in Cases 21–CA–29995 and 21–CA–30003 and a
supporting brief. The General Counsel filed limited ex-
ceptions in Case 21–CA–30299 and a supporting
brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to grant the General Counsel’s limited excep-
tions in Case 21–CA–30299 in their entirety. In all
other respects, we affirm the judge’s rulings, findings,2
and conclusions3 and adopt the judge’s recommended
Orders.4
ORDER RECONSOLIDATING CASES
The National Labor Relations Board orders the re-
consolidation of Case 21–CA–30299 with Cases 21–
CA–29995 and 21–CA–30003.
ORDER
The National Labor Relations Board adopts the rec-
ommended orders of the administrative law judge. In
Case 21–CA–30299, the complaint is dismissed. The
judge’s rulings, findings, and conclusions, however,
are reconsolidated with the judge’s rulings, findings,
and conclusions in Cases 21–CA–29995 and 21–CA–
30003. In Cases 21–CA–29995 and 21–CA–30003 the
National Labor Relations Board orders that the Re-
spondent, New Breed Leasing Corporation, Compton,
California, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Subject to the limitation set forth in the
Board’s decision, offer, in writing, immediate and full
reinstatement to all of the former Maersk unit employ-
ees to the positions they held with the predecessor, dis-
charging as necessary employees in the units not pre-
viously employed in the predecessor units or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed while working
for its predecessor, and make them whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against them. With the written rein-
statement offers, Respondent shall notify these individ-
uals in writing that it will recognize and bargain with
the Unions as their exclusive representative.’’
1012 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
The National Labor Relations Act holds that an em-
ployer who employs a majority of employees from a
bargaining unit employed by the former employer
whose operations the new employer takes over must
recognize and bargain with the labor organization that
represented the predecessor’s unit employees.
The Act further holds that an employer may not
refuse to hire a predecessor’s employees because it
wishes to avoid recognizing and bargaining with a
labor organization.
When New Breed Leasing Corporation took over the
operations of Maersk Pacific at the 1412 Army Com-
mand in April 1994, it improperly failed to hire the
unit employees of Maersk. Had it hired those employ-
ees, a substantial majority of its employees in the units
described below would have come from the prede-
cessor units. Accordingly, New Breed Leasing Cor-
poration from the very beginning of its operations on
April 1, 1994, was obligated to recognize and bargain
with the following labor organizations as the exclusive
representatives of the following units of employees.
The following unit of New Breed Leasing Corpora-
tion’s longshoremen and marine clerks employed at the
Army Terminal is represented by International Long-
shoremen’s and Warehousemen’s Union, International
Longshoremen’s and Warehousemen’s Union, Local 13
(Local 13) and International Longshoremen’s and
Warehousemen’s Union, Local 63 (Local 63):
All longshoremen and marine clerks employed by
Respondent at 1312 Medium Post Command lo-
cated at 1620 South Wilmington, Compton, Cali-
fornia, excluding all other employees, professional
employees, management employees, temporary
management employees, trainees, confidential em-
ployees, salesmen, guards, watchmen, and super-
visors as defined in the National Labor Relations
Act.
The following unit of New Breed Leasing Corpora-
tion’s office clerical employees employed at the Army
Terminal is represented by the International Long-
shoremen’s and Warehousemen’s Union, Local 63, Of-
fice Clerical Unit:
All office clerical employees employed by Re-
spondent at 1312 Medium Post Command located
at 1620 South Wilmington, Compton, California,
excluding all other employees, professional em-
ployees, management employees, temporary man-
agement employees, trainees, confidential employ-
ees, salesmen, guards, watchmen, and supervisors
as defined in the National Labor Relations Act.
Given all these facts, we give you the following as-
surances:
WE WILL NOT fail and refuse to hire employees of
the predecessor employer, Maersk Pacific, in order to
avoid becoming obligated to recognize and bargain
with the Unions as representatives of our unit employ-
ees.
WE WILL NOT refuse to recognize and bargain in
good faith with the Unions as the exclusive representa-
tives of the employees in the bargaining units set forth
in this notice to employees.
WE WILL NOT unilaterally set terms and conditions
of employment for bargaining unit employees and
thereafter unilaterally change those terms and condi-
tions of employment without notifying the Unions or
providing them an opportunity to bargain respecting
proposed changes.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees and or employee appli-
cants in the exercise of the rights guaranteed them in
Section 7 of the Act.
WE WILL, subject to the limitation set forth in the
Board’s decision, offer in writing immediate and full
reinstatement to all former Maersk unit employees to
the same positions they held with the predecessor, ter-
minating if necessary any non-Maersk employees or, if
those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed while
working for the predecessor, and WE WILL make them
whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination
against them. With our written reinstatement offers WE
WILL notify these individuals in writing that we will
recognize and bargain with the Unions as their exclu-
sive representatives.
WE WILL remove from our files any reference to our
unlawful refusal to hire the former Maersk unit em-
ployees and WE WILL notify these employees in writing
1013NEW BREED LEASING CORP.
that this has been done and that this unlawful conduct
will not be used against them in any way.
WE WILL, on request, bargain with the Unions as the
exclusive bargaining representative of the employees in
the appropriate bargaining units concerning terms and
conditions of employment and, if understandings are
reached, WE WILL embody such understandings in
signed agreements.
WE WILL on request of the Unions, restore the status
quo ante and rescind the unilateral changes in the unit
employees’ wages, hours, and working conditions that
we implemented in the hiring of unit employees in
March 1994 and all changes made thereafter, and make
affected employees, including those whose employ-
ment is directed above, whole for any and all losses
they incurred by virtue of the unilateral changes to
their wages, fringe benefits, and other terms and condi-
tions of employment from the initial hire of unit em-
ployees in March 1994 and thereafter, until Respond-
ent negotiates in good faith with the Unions to agree-
ment or to impasse, in the manner set forth in the rem-
edy section of the decision.
WE WILL preserve and, on request, make available
to the Board or its agents, for examination and copy-
ing, all payroll records and other records and docu-
ments necessary to analyze the amount of backpay and
other moneys due under the terms of this Order and
to insure that the terms of this Order have been fully
complied with.
NEW BREED LEASING CORPORATION
Jean Libby, Esq., for the General Counsel.
Gary F. Overstreet and Michael R. Goldstein, Esqs. (Musick,
Peeler & Garrett), of Los Angeles, California, for the Re-
spondent.
Steven Holguin, Esq. (Greenstone, Holguin, Garfield &
Knox), of Los Angeles, California, for Charging Party
Local 13.
Robert Remar, Esq. (Leonard, Carder, Nathan, Zuckerman,
Ross, Chin & Remar), of San Francisco, California, for
Charging Party Local 63 and Charging Party OCU.
ORDER GRANTING MOTION SEVERING CASE
21–CA–30299 AND DECISION IN CASES 21–CA–
29995 AND 21–CA–30003
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard the issues raised by the complaint in Cases 21–CA–
29995 and 21–CA–30003 in trial on September 26 through
29, 1994, in Los Angeles, California. A separate hearing on
the allegations of the complaint in Case 21–CA–30299 was
held in Los Angeles, California, on January 30, 1995.
Posthearing briefs respecting the complaint in Cases 21–CA–
29995 and 21–CA–30003 were submitted on November 10,
1994. Posthearing briefs respecting the complaint in Case
21–CA–30299 are due on March 7, 1995. The cases arose
as follows.
On April 4, 1994, the International Longshoreman’s and
Warehousemen’s Union (ILWU), International Longshore-
men’s and Warehousemen’s Union, Local 13 (Local 13), and
International Longshoremen’s and Warehousemen’s Union,
Local 63 (Local 63) filed a charge with Region 21 of the Na-
tional Labor Relations Board (the Board) docketed as Case
21–CA–29995 against New Breed Leasing Corporation (Re-
spondent or the Employer). On April 19, 1993, the ILWU
and Locals 13 and 63 amended their charge. On April 7,
1994, the International Longshoremen’s and Warehousemen’s
Union, Local 63, Office Clerical Unit (Local 63 OCU and
collectively with the ILWU, Local 13, and Local 63, as the
Unions or the Charging Parties) filed a charge with Region
21 docketed as Case 21–CA–30003 against Respondent.
On May 27, 1994, the Regional Director for Region 21
issued an order consolidating cases, consolidated complaint,
and notice of hearing consolidating Cases 21–CA–29995 and
21–CA–30003. Respondent filed an answer to the consoli-
dated complaint dated June 10, 1994. The complaint and the
answer were each further amended at the September 26,
1994 hearing.
The complaint respecting the two cases alleges and the an-
swer denies that Respondent is a successor employer with re-
spect to two bargaining units represented by the Unions and
that Respondent wrongfully failed and refused to hire the
predecessor employer’s unit employees in violation of Sec-
tion 8(a)(3) and (1) of the National Labor Relations Act. The
complaint further alleges, and the answer denies, that Re-
spondent had a bargaining obligation with respect to employ-
ees in the two units and violated its duty to recognize and
bargain with the Union in violation of Section 8(a)(5) and (1)
of the Act in the following ways: (1) by failing to recognize
and bargain with the Unions as representatives of its unit em-
ployees; (2) in initially establishing its unit employees’ terms
and conditions of employment without bargaining with the
Unions; and (3) by failing to bargain with the Unions re-
specting changes from the predecessor’s terms and conditions
of employment.
On September 30, 1994, the Unions filed a charge dock-
eted as Case 21–CA–30299 against Respondent and amended
the charge on December 14, 1994. On November 25, 1994,
the Regional Director for Region 21 issued a complaint re-
specting Case 21–CA–30299 (the latter complaint). The latter
complaint alleges essentially the same violations of the Act
as the complaint respecting Cases 21–CA–29995 and 21–
CA–30003 (the earlier complaint) with the additional allega-
tions here summarized that Respondent terminated three em-
ployees in late September and early October 1994 because of
their union activities in violation of Section 8(a)(3) and (1)
of the Act and changed work rules of unit employees without
bargaining with the Unions in violation of Section 8(a)(5)
and (1) of the Act.
On December 12, 1994, the General Counsel filed a mo-
tion to consolidate the latter complaint with the case then
pending decision in the former complaint case. I granted the
motion by order dated January 3, 1995. The hearing on the
latter complaint was held on January 30, 1995. Posthearing
briefs in Case 21–CA–30299, as of the time of the issuance
of this decision, were due on March 7, 1995.
Severance of Cases
The parties have consistently indicated their strong desire
that the decision on the complaint in Cases 21–CA–29995
and 21–CA–30003, if at all possible, not be delayed by the
1014 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The record respecting Cases 21–CA–29995 and 21–CA–30003,
i.e., the record underlying the instant decision, includes all materials
of record up to and including the filing of posthearing briefs in those
two consolidated cases and, for purposes of procedural continuity, all
motions and positions filed by the parties and orders issued there-
after to the date of the issuance of this decision bearing their case
numbers. The instant record shall not include the transcript and ex-
hibits of the hearing respecting Case 21–CA–30299 opened on Janu-
ary 30, 1995, other than those aspects respecting the motion to sever
and the discussion and positions of the parties related thereto.
The record in Case 21–CA–30299 shall include all aspects of the
record in Cases 21–CA–29995 and 21–CA–30003 including the in-
stant decision.
2 When not otherwise noted, the findings are based on the plead-
ings, the stipulations of counsel, or unchallenged credible evidence.
3 Although there was some discussion and dispute respecting the
existence of a separate corporate entity operating the terminal, see
for example Respondent’s original answer, the parties agreed to deal
exclusively with Respondent as the sole legal entity whose actions
were in contest and amended their pleadings accordingly. Consistent
with the pleadings and the manner in which the case was litigated,
no findings are made with respect to any other entity acting as a
subsidiary of or agent for Respondent in operating the terminal at
relevant times.
4 A local of the ILWU that represents statutory supervisors also
represented one of Maersk’s employees, Foreman Rick Ponce.
consolidation of the complaints. Counsel for Charging Parties
Local 63 and OCU moved at the hearing in Case 21–CA–
30299 to sever that case from Cases 21–CA–29995 and 21–
CA–30003 in order to expedite issuance of the former deci-
sion. The other parties did not object.
I have determined that it will avoid unnecessary delay and
effectuate the purposes and policies of the Act to sever Case
21–CA–30299 from Cases 21–CA–29995 and 21–CA–30003
and decide the former cases herein retaining the record with
respect to Case 21–CA–30299 for further consideration and
subsequent issuance of decision.
The Board has affirmed cases in which administrative law
judges have severed cases during or after the evidentiary
record has been concluded. See, e.g., Money Radio, 297
NLRB 698 (1990), and Money Radio, 297 NLRB 705
(1990). Indeed, the Board has granted motions to sever cases
even after the issuance of an administrative law judge deci-
sion on a consolidated matter. Storer Cable TV of Texas, 292
NLRB 140 (1988). I shall therefore grant the motion to sever
below and will not further address Case 21–CA– 30299 here-
in.
Respecting Cases 21–CA–29995 and 21–CA–30003
On the entire record concerning Cases 21–CA–29995 and
21–CA–30003,1 including helpful briefs from the General
Counsel, the Charging Parties, and Respondent respecting
those cases, I make the following2
FINDINGS OF FACT
I. JURISDICTION
At all times since April 1, 1994, Respondent,3 a New
York corporation with an office and place of business in
Compton, California, has been engaged in the operation of
a container freight station providing warehousing and inter-
state and foreign shipment of cargo pursuant to a contract
with the United States Army respecting its 1312 Medium
Port Command (the army terminal). Based on a projection of
its operations, Respondent’s business operation of the termi-
nal will annually derive revenues in excess of $50,000 for
the warehousing and transportation of freight in interstate
and foreign commerce, under arrangements with various
common carriers, each of which operates between California
and various other States of the United States or between
California and foreign countries.
Based on the above I find that Respondent at all times ma-
terial has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The complaint alleges, the answer admits, and I find the
International Longshoremen’s and Warehousemen’s Union
(the ILWU), the International Longshoremen’s and
Warehousemen’s Union, Local 13 (Local 13), the Inter-
national Longshoremen’s and Warehousemen’s Union, Local
63 (Local 63 and, together with the ILWU and Local 13, the
Longshore Unions), and International Longshoremen’s and
Warehousemen’s Union, Local 63, Office Clerical Unit
(Local OCU and, together with the ILWU Local 13 and
Local 63, the Unions), and each of them, are labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The army terminal
For many years the United States Army Military Traffic
Management Command through its 1312 Medium Port Com-
mand has maintained a container freight station and privately
owned vehicle processing facility at 1620 Wilmington Ave-
nue, Compton, California (the army terminal or the facility),
for the purpose of consolidation and transshipment of Depart-
ment of Defense service personnel’s household goods, gen-
eral cargo, and privately owned vehicles in Southern Califor-
nia. The Army for many years has contracted out the oper-
ation of the facility to private stevedoring contractors. Each
of these contractors for many years until the events in ques-
tion had recognized and bargained with the Longshore
Unions respecting the longshore and marine clerks unit and
with Local OCU respecting the office clerical employees.
For 3 years until March 31, 1994, Maersk Pacific Limited
(Maersk) operated the army terminal pursuant to a contract
with the Army. Maersk at relevant times was a member of
the Pacific Maritime Association (PMA), an organization of
employers in the maritime industry. Maersk’s army terminal
employees were at all relevant times represented by locals of
the ILWU.4 As a member of the PMA, Maersk was bound
to a collective-bargaining agreement with the Longshore
Unions extending through July 1, 1996, respecting the fol-
lowing West Coast multiemployer bargaining unit (long-
shoremen and marine clerk’s unit):
All longshoremen and marine clerks employed by
members of PMA and the employers who have author-
ized PMA to bargain on their behalf, including Maersk.
1015NEW BREED LEASING CORP.
5 Material conflicts in significant testimony are noted. When there
is no essential difference in the testimony of witnesses regarding ma-
terial events or when there is no conflict between witnesses or rel-
evance to differing timing or versions of events, events are recited
without evidentiary attribution. Unchallenged business records and
other documents in evidence have provided substantial aid in estab-
lishing the timing of events.
6 Maersk’s bid was rejected by the military due to a technical defi-
ciency.
On the same basis Maersk was bound to an agreement with
Local OCU through June 30, 1995, respecting the following
unit (the office clerical unit or OCU):
All office clerical employees employed at 1312 Me-
dium Post Command located at 1620 South Wilming-
ton, Compton, California, excluding all other employ-
ees, professional employees, management employees,
temporary management employees, trainees, confiden-
tial employees, salesmen, guards, watchmen, and super-
visors as defined in the Labor Management Relations
Act.
In the year to March 31, 1994, Maersk’s army terminal long-
shoremen and marine clerk’s unit contained approximately
eight employees and its office clerical unit contained ap-
proximately four employees.
Each of the units described above has been at all relevant
times appropriate within the meaning of Section 9(a) of the
Act. Based on the record as a whole and the contracts in evi-
dence, I find: (1) that at relevant times through March 31,
1994, the longshore locals were the exclusive representatives
for purposes of collective bargaining of Maersk’s longshore-
men and marine clerk’s unit employees and (2) that at rel-
evant times through March 31, 1994, Local OCU was the ex-
clusive representative for purposes of collective bargaining of
Maersk’s office clerical unit.
2. The Pacific Maritime Association
The Pacific Maritime Association (PMA) is an association
of employers who have recognized the ILWU and its various
locals as the representative of their employees engaged in the
longshore industry on the West Coast of the United States.
The Association negotiates and administers collective-bar-
gaining agreements on behalf of its members as well as sup-
plies related administrative and industrial relations support.
3. Respondent
Respondent is a corporation with headquarters in Greens-
boro, North Carolina. It operates facilities under contract
with the government and others in various States of the
United States. Louis DeJoy is the chief executive officer
(CEO). Dennis Hunt is the manager of accounting and ad-
ministration. William Lee is a consultant of Respondent reg-
ularly involved in Respondent’s commencement of new oper-
ations. The agency of these individuals was not in contest.
B. Events5
1. Respondent’s activities respecting the 1994 bid to
operate the army terminal
Maersk Pacific Limited’s contract to operate the army ter-
minal was to expire on March 31, 1994. Respondent,
Maersk, and others submitted bids to operate the facility
thereafter for a 2-year period commencing on April 1, 1994,
with a 3-year option reserved to the government. Respond-
ent’s bid was dated January 24, 1994. It noted in part:
Conversations have been initiated and provision
made to work with the Pacific Maritime Association
(PMA) to obtain both long-term and occasional work-
ers. Membership in PMA assures the experience level
of the work force and simplifies personnel administra-
tion. For long-term employees, a selection process will
begin not later than March 15. These opportunities can
be posted and selection conduced under PMA auspices
to ensure employees of known skill levels.
. . . .
The New Breed site manager will be a participant on
the implementation team. Supervisors will be selected
and will begin training by March 21st and workers by
March 28th. If existing employees are retained, they
will be working already, and any added training will
take place as soon as possible.
As the quoted portion of the bid noted, Respondent had
initiated telephonic inquiries of PMA earlier in January 1994
and had as a result received a communication from PMA
dated January 19, 1994, which included membership applica-
tions, booklets of association bylaws, and ‘‘copies of the cur-
rent longshore, clerk, and forman agreements, by which you
will be bound upon acceptance into [PMA] membership.’’
There were apparently financial advantages to Respondent if
it joined PMA sooner rather than later. Accordingly, on or
about February 22, 1994, Respondent mailed to PMA a com-
pleted membership application and check for $1000 in pay-
ment of the required application fee.
By letter dated March 9, 1994, the PMA informed Re-
spondent that its application for membership had been ac-
cepted by the PMA board of directors. The letter continued:
In order to complete your membership, it is nec-
essary for an officer of your company to affix his or
her signature on the Bylaws of the Association. For this
purpose two blank letter agreements are enclosed, one
of which should be completed and returned to this of-
fice.
The PMA followed on March 11, 1994, with an additional
letter detailing Respondent’s financial obligations of mem-
bership and reporting and payroll procedures. Respondent did
not at any time return the signed letter agreement.
Respondent’s bid for the army terminal contract was fa-
vorably received.6 On or about March 8, 1994, Respondent
was advised by telephone that it had been awarded the con-
tract. By March 15, 1994, the documents establishing its
award of the contract had been physically received by Re-
spondent.
2. Respondent’s actions in preparing to assume army
terminal operations
On or soon before Thursday, March 17, 1994, CEO LeJoy
sent Hunt and Lee to Compton to commence Respondent’s
onsite transition efforts. Hunt and Lee arrived in Compton,
California, on the March 17 and held a postaward conference
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with Lt. Colonel Dennis Faver, the commanding officer of
the Army’s 1312 Medium Port Command, and his staff. In
the meeting the contract and the planned transition from
Maersk to Respondent on April 1, 1994, were discussed.
Colonel Faver testified that in that meeting:
I don’t know who initiated it, but it did come up, as
to what was going to be the future of the current work
force. And one of the New Breed individuals said, ‘‘We
haven’t made a decision yet. We are keeping all of our
options open.’’
With a day or two Hunt and Lee went to the local PMA
headquarters and met with PMA Southern California rep-
resentative Vince LaMaestra. Respondent’s responsibilities
and obligations under the collective-bargaining agreements as
well as the existing state of industrial relations generally at
the army terminal and the PMA’s role in assisting Respond-
ent in such areas were discussed. At one point LaMaestra
brought ILWU Local 13 Secretary Treasurer Norman Tuck
and another ILWU representative into the meeting and brief-
ly introduced Hunt and Lee to the others as representatives
of a ‘‘new member of PMA.’’
Hunt testified that he also arranged through Lee to place
blind employment advertisements in the local paper—which
ads were to appear the following week on March 23 or 24—
and to look for a place in which Respondent’s staff could
interview job candidates responding to the ads.
James Moynihan testified CEO LeJoy contacted him at his
New Jersey home on the evening of March 17 and informed
him that Respondent had been awarded the army terminal
contract and, as earlier proposed, Moynihan would be Re-
spondent’s Compton operations manager. Moynihan testified
that LeJoy discussed with him the specifics of his new posi-
tion, but also told him that ‘‘there were decisions yet to be
made involving labor, and I was not involved. . . . At that
time I didn’t know exactly what the hiring process would
be.’’ Moynihan testified that he had further conversation by
telephone with LeJoy on the evening of Saturday, March 19,
respecting the operational needs of the Compton facility and
the types of people needed. The next day, Sunday, March 20,
Moynihan flew to Compton from New Jersey.
On Monday, March 21, Moynihan plunged into the oper-
ational aspects of the assumption of operations such as mak-
ing leasing arrangements for necessary equipment. He testi-
fied that in the early part of the week he had no involvement
in the recruitment process that was in the hands of two addi-
tional staff, John O’Neil and Ed Campbell. It was their task
to contact and screen the applicants who would respond to
Respondent’s newspaper advertisements appearing on and
after March 23 or 24.
Moynihan and Lee went to the offices of ILWU Local
OCU’s offices on March 21 for a meeting with Jerry Rich
and Ibarra. The army terminal operation was discussed as
well as the then current collective-bargaining agreements
with Maersk. Rich testified that the New Breed agents ex-
plicitly indicated that they were going to retain the Maersk
staff asserting, ‘‘they needed the people . . . the experienced
people.’’ Lee specifically denied any such intention had been
expressed and Moynihan testified had no recollection of such
statements ever being made. Moynihan testified, however,
that at the meeting it was clear that the union representatives
assumed that Respondent would sign the then current collec-
tive-bargaining agreements and further assumed that Re-
spondent would retain the existing Maersk unit employees.
During this period, Respondent’s employee Michael
Woods was at the facility documenting Maersk’s work proce-
dures and attempting to learn the duties and responsibilities
of various Maersk unit employees. In so doing he had con-
versations with various of the unit employees. Maersk em-
ployee Kevin Reilly testified that Woods discussed his job
with him and he specifically asked Woods if Respondent was
planning on replacing the Maersk employees. He testified
that Woods told him that Respondent was not going to re-
place the current employees. Woods specifically denied both
that he was ever asked such a question by Maersk employees
or that he assured any Maersk employee of a job with Re-
spondent. Maersk employee Linda Kennedy recalled that
Woods, on learning that she was the only employee who
could issue a necessary certification as part of the army ter-
minal operations, asserted, ‘‘Well, I guess in the future we
better make sure you don’t get sick.’’
Maersk employee Bernis Gald testified that she had re-
ceived a local county court subpoena in January requiring her
appearance for jury duty on April 5, 1994. She testified she
assumed as an employee who would be employed by Re-
spondent that she needed to be at work during the transition
from Maersk operations to Respondent’s operations and
therefore she raised the matter of the subpoena that required
her appearance at court during the critical week of April 5
with both Lee and later Moynihan. She testified she re-
quested that Respondent provide directly to the court, or to
her for retransmission to the court, a letter of explanation
that would allow her to postpone her jury service so that she
would not be absent in the first days of Respondent’s as-
sumption of operations. She testified that Lee told her it was
important for all the workers to be present during the transi-
tion, but that since he was not going to be at the facility at
relevant times, Moynihan would take care of the matter. Lee
testified he did not recall a Maersk employee named Gald
and did not recall ever being approached by anyone regard-
ing a summons for jury service.
Gald testified that after speaking to Lee she spoke to Moy-
nihan repeating what she had said to Lee and telling Moy-
nihan she would make him a copy of the subpoena so he
would have all the information necessary to take care of the
matter. She testified that Moynihan said that would be fine
and that he would pick up the subpoena from her later. Moy-
nihan testified that Gald did in fact speak to him as she testi-
fied, but that he simply told her in response that ‘‘I didn’t
know what she thought my involvement in that would be and
that I couldn’t help her.’’
Gald testified that after her conversation with Moynihan
she made a copy of the subpoena. She looked for Moynihan
on several occasions over the next day or two, but he was
not at the facility. Because she was off on Friday, March 25,
1994, on Thursday, March 24, she left the subpoena with fel-
low employee Linda Kennedy asking her to give it to him
that Friday.
On Wednesday and Thursday, March 23 and 24, 1994, Re-
spondent’s blind advertisements seeking job applicants ran in
the local papers. Applications responded over the next 2 or
3 days. Respondent’s agents Campbell and O’Neil screened
the replies, selected promising individuals, and interviewed
1017NEW BREED LEASING CORP.
selected applicants at a local hotel. While these two made
initial screenings, Hunt and DeJoy also looked at some of the
submitted applicant resumes.
On Thursday evening, March 24, following the conclusion
of what he described had been a very busy day, Moynihan
left his hotel and went to a nearby bar. There he had a con-
versation with a Maersk employee, Eric Gonzales. The spe-
cifics of the conversation are in very substantial dispute.
Gonzales testified that while the conversation was social and
convivial he turned it to work matters. He testified that he
asked Moynihan about Respondent’s intentions regarding re-
taining Maersk employees. Gonzales testified that Moynihan
told him that Respondent was going to ‘‘go with the Local
13 work force.’’ He recalled Moynihan said, ‘‘Yes. I don’t
see any problem with the present work force there, that it is
going to stay status quo.’’ Gonzales testified that he identi-
fied specific employees of Maersk and told Moynihan of
their concerns regarding their jobs such as Linda Kennedy.
He recalled that Moynihan responded to his statements about
Kennedy: ‘‘Oh. Linda is a very good worker, and I wouldn’t
want Linda to be upset. I should probably talk to her and let
her know that her job wasn’t going to be lost.’’ Gonzales
testified that Moynihan in turn asked questions of him re-
specting work arrangements of particular employees includ-
ing Forman Ricky Ponce and that Gonzales explained what
he could.
Moynihan recalled meeting Gonzales at the bar. He testi-
fied, however, that when Gonzales sought to introduce work
matters into their conversation Moynihan protested saying he
did not want to discuss work issues, Moynihan recalled the
conversation was simply social and brief. He specifically de-
nied that any work related conversation occurred or that he
made the statements attributed to him by Gonzales.
Gonzales, corroborated by the testimony of Maersk em-
ployees Linda Kennedy, Kevin Reilly, and Rick Ponce testi-
fied that on the morning of Friday, March 25, at work, he
related the substance his prior evening’s conversation with
Moynihan to Kennedy, Ponce, and all the clerical workers
and marine clerks at work that day. In effect Gonzales told
them not to worry about their jobs because Moynihan had
told him Respondent was going to retain the Maersk staff.
Gonzales testified that all the Maersk employees were con-
cerned about their jobs because Respondent had made no an-
nouncement about whether they would be retaining the cur-
rent work force and the changeover from Maersk to Re-
spondent’s operation of the army terminal was to occur the
following week.
That same day, Friday, March 25, in Moynihan’s recollec-
tion, Kennedy put a copy of Gald’s subpoena on his desk.
Moynihan denied knowing its purpose or taking any action
respecting it. Kennedy testified that Moynihan took the sub-
poena from her and told her that he would be speaking to
somebody ‘‘back east’’ about it.
Moynihan met with Colonel Faver on Friday. Colonel
Faver testified that he asked what the intentions of Respond-
ent were respecting the Maersk work force. He recalled that
Moynihan told him that the decision on the work force
would be made over the weekend by someone at head-
quarters—not him. Moynihan also recalled the conversation
and the question from the Colonel. He agreed that he told
the Colonel that he did not have an answer about the Maersk
employees because the decision had not been made on how
to staff the facility. Moynihan testified, however, that at the
time of this Friday workday conversation, he was aware that
the following morning he was to begin personally giving
interviews to job applicants screened by other Respondent
staff from those who had responded to the newspaper ads.
A second conversation took place between Moynihan and
Gonzales that is in dispute. Gonzales testified that he met
Moynihan at the same bar on Friday evening:
Jim came to the bar, and we both sat down there.
And we were both having a drink, and he said, ‘‘I have
got some bad news to tell you.’’ I said, ‘‘Well, what
is the bad news?’’ And he goes, ‘‘Well, I heard from
the people up on top that I had no right to probably tell
you anything about labor, that my job now was just to
run the facility after it was set up.’’
So, I said, ‘‘Wow, why this sudden change?’’ He
said, ‘‘Well, to tell you the truth, I thought that I was
going to be in charge of all the hiring, and my superi-
ors are now telling me not to worry about the hiring,
not to worry about the work force, that I had nothing
to do with that.’’ He goes, ‘‘I am going to be honest
with you. I am really upset. I thought that I was going
to have a lot more power than just the operating. I
thought I was going to do the hiring or I would at least
have a say so.’’
And he said, ‘‘So, as of this conversation, if you see
me walking around the warehouse and I don’t talk to
you, I don’t have anything to tell you. So, you might
as well look at it like if I am just not talking to you,
it is not that I am doing it intentionally. And you might
think that one day we could be friends or you might
look at me as an asshole.’’
And I said, ‘‘Well, if that is the way you look at it.’’
I was pretty upset and left it at that. I didn’t really have
anything else to say to him because he sort of laid it
out flat, and I accepted it and left it at that.
Moynihan recalled the conversation but testified that
Gonzales initially seemed to be approaching him as a spokes-
man for Rick Ponce respecting Ponce’s work arrangements
and that Moynihan cut Gonzales off with the admonition that
he was not there to discuss labor issues. Moynihan specifi-
cally recalled the conversation was otherwise social, very
limited, and brief.
Moynihan testified that on Saturday, March 26, he re-
ceived a ‘‘stack of resumes’’ of screened job applicants from
the blind newspaper ads and commenced interviewing can-
didates. He spent the day entire interviewing. He testified
that during the interview process he remained unsure whether
Respondent would be hiring the Maersk unit employees or
the individuals selected from those who responded to the
blind newspaper advertisements. The two groups were exclu-
sive, no Maersk employees had learned of Respondent’s off-
site interview process or responded to the advertisements.
Respondent took its final decision not to join PMA and
not to hire the Maersk employees, according to Hunt, after
casual conversations between Hunt and DeJoy, DeJoy and
counsel, and DeJoy and others. DeJoy testified that his deci-
sion was made ‘‘close to the end of it,’’ without placing a
specific date on his decision. DeJoy testified that ultimately
the complexity and potential liability to Respondent of the
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Subsequent events occurring pursuant to a Federal district court
order in an action brought under Sec. 10(j) of the Act are not rel-
evant to a determination of the merits of the March and April 1994
unfair labor practice allegations and are therefore not considered.
8 The new employees, as noted above, were hired on March 28
and 29. Training, with Army assistance, took place on March 30 and
31.
commitments involved in joining PMA convinced him in the
end not to join. He testified that the possibility that Respond-
ent would be obligated to high cost labor over the entire west
coast as a result of joining PMA was a factor in the decision.
He specifically denied, however, that ‘‘any decision in re-
cruiting the work force was based in any part on someone’s
having once been a Maersk employee or having been affili-
ated with any union.’’
On Sunday, March 27, in the afternoon or evening, Moy-
nihan testified that he and DeJoy spoke by telephone. DeJoy
told him a decision had been made not to join PMA and
DeJoy instructed Moynihan to ‘‘go ahead and select from the
people I had interviewed for employment.’’ DeJoy’s instruc-
tions were put into effect.
Eric Gonzales testified that on Monday morning, March
28, the first work day following his Friday evening conversa-
tion with Moynihan, he randomly informed his fellow em-
ployees at the army terminal of Moynihan’s remarks to him.
Gonzales was corroborated regarding both the conversations
and concerning the specifics of Moynihan’s remarks de-
scribed by Gonzales, by Maersk employees Bernice Gald,
Ricky Ponce, and Linda Kennedy.
Gald testified she has a conversation with Moynihan on
Monday in which she reminded him of the subpoena matter
and the letter he had agreed to have sent. She testified he
responded not to her statements about the subpoena but rath-
er said that he could not answer all of Gonzales’ questions.
When she responded that Gonzales that had nothing to do
with the jury subpoena and repeated her question respecting
getting a letter sent to the court, Moynihan said he had faxed
the subpoena to North Carolina. When Gald expressed con-
cern respecting the short time remaining until her Monday,
April 5, appearance date pursuant to the jury subpoena, Moy-
nihan responded, in Gald’s recollection, ‘‘Oh, that is no
problem. My company is real good about Overnight Mail,
and they will get the letter back to you.’’
Ricky Ponce testified that after Gonzales reported his con-
versation with Moynihan, he waited for Moynihan, and con-
fronted him as he arrived at work. Ponce testified,
I stopped [Moynihan] right at the foot of the door-
way there, and I asked him, ‘‘What the heck is going
on here? Eric [Gonzales] is telling me the whole story
has changed, and we don’t know if we are going to be
here.’’ I wanted to know what was going on.
Q. And what did he say?
A. He said—actually, he didn’t know what was
going on. He didn’t know if he was going to be there.
He mentioned something about he had just gotten mar-
ried or something, and he didn’t even know if he was
going to move his wife over here, so he was caught in
the dark and didn’t know what the heck was going on.
So, in turn, I told him, ‘‘Well, maybe you don’t want
us here, but being that you belong to PMA at the
time’’—I understood that they were under PMA—I told
him, ‘‘We may not be here, but there will be an ILWU
work force here, because you are under PMA. And
what I am going to have to do is I am going to have
to get in touch with my Union officials and we are
going to go from there.’’
And he mentioned something to the effect that, ‘‘We
have dealt with ILA’’—something with reference to
ILA. And in turn, I turned about and I said, ‘‘Well, we
are not ILA. We are ILWU.’’ And I said, ‘‘I will talk
to my Union officials, and I got to do what I got to
do, and you got to do what you got to do.’’ I put out
my hand, and we shook hands, and we turned around
and he walked one direction and I walked in the other.
Ponce also testified that on the same day he told Maersk Ter-
minal Manager Constanti that it was possible that the Maersk
work force would not be retained by Respondent.
On that Monday, consistent with his earlier promise to
keep the Colonel informed, Moynihan met with Colonel
Faver and told him that Respondent had decided to go with
its own work force rather than hire the Maersk employees
and that Respondent was conducting offsite job applicant
interviews.
Moynihan testified that Respondent made up its mind re-
specting which applicants to offer employment on Tuesday,
March 28, and made job offers to applicants on March 29
with some applicants being contacted on Wednesday, March
30. On Wednesday Moynihan again met with Colonel Faver.
Colonel Faver testified that Moynihan
indicated that the interviews appeared to be going well.
He did make a statement—yes, he did make a statement
that he was surprised that none of the current employ-
ees had requested an interview or filed an application,
whatever their process was.
Constanti, Moynihan, and Colonel Faver met on Thursday,
March 31. Moynihan again indicated that Respondent was, in
Colonel Faver’s recollection, ‘‘going to go with our own
work force, we are not going to retain this group of people.’’
In Moynihan’s recollection this was the first time he had in-
formed anyone save Colonel Faver that Respondent was not
going to retain the Maersk work force. There was discussion
on how to disseminate the news to the Maersk staff and
union officials who were arriving at the premises.
In the event Moynihan met with union officials and an-
nounced Respondent’s intentions later that day. Thereafter
Maersk employees were informed they would not be retained
by Respondent. The union officials were displeased, the em-
ployees upset, but the day passed without grave incident.
This was the last day any of the Maersk employees worked.7
3. Respondent’s operation of the army terminal
On April 1, 1994, Respondent commenced operations of
the army terminal with a staff of eight or nine employees8
of whom three were office clericals. Respondent at no time
has recognized or bargained with the Unions respecting any
army terminal employee. Respondent neither bargained with
the Unions respecting the setting of initial terms and condi-
tions of its employees employment nor subsequent changes
in those terms.
1019NEW BREED LEASING CORP.
Although Respondent’s terms and conditions of its army
terminal employees’ employment are similar to those appli-
cable to Maersk employees till April 1, there is no doubt
they differed in significant ways. Further, Respondent did not
maintain the job descriptions and classifications of unit em-
ployees utilized by Maersk under its contracts with the
Unions, but rather assigned employees with far less concern
respecting particular work jurisdiction.
C. Analysis and Conclusions
1. Basic arguments of the parties
The General Counsel argues that Respondent failed to con-
sider and hire Maersk’s army terminal unit employees be-
cause of a desire to avoid being obligated to recognize and
bargain with the Unions respecting the two Maersk army ter-
minal bargaining units. In so failing and refusing, the Gen-
eral Counsel argues, Respondent has violated Section 8(a)(3)
and (1) of the Act with respect to each Maersk unit em-
ployee. From this starting point, the General Counsel argues
further that, had Respondent not violated Section 8(a)(3) and
(1) of the Act as described, Respondent would have been ob-
ligated to recognize and bargain with the Unions as a succes-
sor employer. Further, because the constructive successorship
occurred before Respondent commenced operations, Re-
spondent under Board law was obligated to bargain with the
Unions respecting initial terms and conditions of unit em-
ployees. The General Counsel argues that Respondent’s fail-
ure to recognize the Unions as the exclusive representative
of the army terminal employees as well as its failure to bar-
gain respecting both initial terms and all subsequent changes
in terms and conditions of employment violated Section
8(a)(5) and (1) of the Act.
The Charging Parties take the same position as the General
Counsel respecting the alleged violations of the Act de-
scribed above, but make additional contentions. They argue
that Respondent actually or constructively joined PMA and
recognized and bargained with the Unions and was therefore
obligated not only to recognize and bargain with the Unions,
but also was legally bound to the PMA collective-bargaining
agreements for their terms. Thus, the Charging Parties argue
that the remedy for the violations found should include a re-
quirement that Respondent be held a part of the PMA multi-
employer unit and that Respondent be bound to the PMA-
Union collective-bargaining agreements in force with respect
to Maersk unit employees.
Respondent does not so much dispute the General Counsel
or the Charging Parties’ legal arguments as challenge the un-
derlying factual assumptions necessary to sustain them. Thus,
Respondent argues that the record contains insufficient credi-
ble evidence to suggest, let alone sustain, a finding that Re-
spondent’s hiring for the army terminal was other that cus-
tomary, benign, and permissible under the Act. Given that no
Maersk employee was improperly denied employment by Re-
spondent, Respondent argues no successorship obligation on
Respondent’s parts exists and no violations of the Act oc-
curred.
2. Arguments of the Charging Parties respecting
additional violations and or special remedies
The Charging Parties on brief present a scholarly argument
that the facts and case law require that Respondent be held
to have: (1) joined PMA; (2) become a part of the multiem-
ployer bargaining unit; and (3) adopted and hence become
bound to the relevant collective-bargaining contracts. A
threshold issue is presented, however, by the fact that the
General Counsel did not plead in his complaint nor did coun-
sel for the General Counsel contend at the hearing that Re-
spondent had ever joined PMA, failed to join PMA for im-
proper reasons, or ever recognized the Unions or bargained
with them. To the contrary, in colloquy at the hearing, coun-
sel for the General Counsel made it clear that she specifically
rejected each such argument.
The Charging Parties initially concede ‘‘that Section 3(d)
of the Act vests the General Counsel with exclusive jurisdic-
tion with respect to the prosecution of unfair labor practice
complaints.’’ They argue, however, that the Board in
Kaumagraph Corp., 313 NLRB 624 (1994), held the Board,
not the General Counsel, is responsible for fashioning rem-
edies for unfair labor practices and therefore the General
Counsel’s control over the complaint does not preclude liti-
gation respecting what the appropriate remedy should be for
the violations alleged. In this respect the Charging Parties as-
sert on brief at 23:
[T]he evidence and caselaw support the conclusion that
the appropriate remedy of restoration of the status quo
ante by New Breed as a legal successor should include
the requirement that New Breed reinstate or perfect
membership in the PMA and adhere to its adoption of
the [applicable collective bargaining agreements] in ac-
cordance with its clearly expressed intentions.
The Charging Parties correctly argue that the Board not
the General Counsel is charged with the obligation under the
statute to craft appropriate remedies for unfair labor practice
violations. This principle, however, is not to be applied so
broadly that it swallows the General Counsel’s discretion in
respect of the issuance of complaints. The decision in
Kaumagraph Corp. and others of like ilk stand for the propo-
sition that, once a complaint allegation is made by the Gen-
eral Counsel, all appropriate remedies for the violation may
be considered, even if the General Counsel does not advance
or even opposes a particular remedy. These cases do not
challenge the fundamental notion, however, that if a particu-
lar violation of the Act is not alleged by the General Counsel
and such a violation is necessary for a particular remedy to
be invoked then the General Counsel has, by refusing to al-
lege such a violation, precluded the Board from directing
such a remedy.
The threshold issue to be decided here, therefore, is wheth-
er or not the remedy sought by the Charging Party, i.e., an
order requiring Respondent to join the PMA and be bound
by the current collective-bargaining agreements, may be sus-
tained by the current complaint or requires additional inde-
pendent allegations of violations of the Act.
Considering the record herein and the case law on the
question of an employer’s membership in multiemployer as-
sociations, I find that the remedy sought by the Charging
Parties may not be supported on the current complaint but
rather requires the finding of additional violations of the Act
not alleged in the complaint. More particularly I find that for
any remedy to include directing Respondent to sign or adopt
the contract as part of the PMA multiemployer unit, the com-
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
plaint must have included an allegation that was sustained by
the evidence that Respondent either had joined or wrongfully
refused to join the PMA. Indeed the very cases cited by the
Charging Parties for the proposition that the remedies the
Charging Parties seek are appropriate involve specific com-
plaint allegations by the General Counsel respecting such
conduct. Thus, for example, World Evangelism, 248 NLRB
909 (1980), deals with a successor bargaining obligation. The
issue of whether or not the employer in that case had bound
itself to the successor contract was specifically alleged as a
separate violation of the Act and handled as a separate viola-
tion of the Act by the administrative law judge, 248 NLRB
at 916, rather than as a question of remedy.
Put another way, the remedy sought by the Charging Par-
ties presupposes violations of the Act not contained in the
complaint and expressly disavowed by the General Counsel.
To hold that a remedy in the instant case should include an
order directing Respondent to join or rejoin the PMA as part
of a status quo ante remedy for violations of Section 8(a)(5)
of the Act implicitly suggests that Respondent should be held
to have joined the PMA as a matter of law and its failure
to acknowledge that fact and its legal consequences was
wrongful. Counsel for the General Counsel expressly indi-
cated at trial that such a contention was not being made.
Similarly, to include a make-sign order requiring Respondent
to sign the applicable PMA-Union contracts as part of the
remedy directed in the case, requires a finding that Respond-
ent wrongfully breached its obligation to sign such an agree-
ment. Again the General Counsel did not contend Respond-
ent had such an obligation nor include such allegations in the
complaint.
Based on all the above, I find the complaint will not sup-
port the remedies the Charging Parties seek, irrespective of
the question of whether or not the record would support such
relief had the complaint included the allegations found nec-
essary above. I find that what the Charging Parties seek is
not simply to obtain a remedy for the violations alleged but
rather to expand the scope of the complaint. Because the
complaint is within the exclusive jurisdiction of the General
Counsel, who has declined to adopt the violations of law the
Charging Parties advance herein, I shall also decline to con-
sider the arguments of the Charging Parties on the merits of
the unfair labor practice contentions they advance. Accord-
ingly, I shall not further consider the contentions of the
Charging Parties in these regards.
3. Resolution of testimonial conflicts
Although the greater portion of evidence respecting events
herein was not at material variance, several important con-
versations or portions of conversations were in dispute. Al-
though the entire record including the demeanor of witnesses
is relevant to and was a basis for resolving the evidentiary
conflicts presented, the more important disputes are set forth
separately below for purposes of greater understanding and
clarity.
a. The Moynihan-Gonzales contentions respecting their
offsite conversations
As described above, Eric Gonzales testified to two detailed
conversations with James Moynihan on Thursday and Friday
March 24 and 25 at a local bar. Moynihan agreed that he had
the two conversations with Gonzales at the place and about
the times indicated, but Moynihan specifically denied that ei-
ther conversation dealt with work issues or that he made any
of the work related comments attributed to him by Gonzales.
Although the two individuals conversed alone and neither
witness’s version of the conversation is susceptible to direct
corroboration, the conversations were repeated to others.
Thus, Gonzales testified that he reported each conversation
to other Maersk employees the morning of the first workday
after its occurrence. As noted above, several Maersk employ-
ees corroborated Gonzales testimony in this regard. I credit
both Gonzales and the corroborating witnesses in this testi-
mony and find he made the reports to employees reciting his
conversation with Moynihan substantially as he described in
his testimony. This finding strongly supports Gonzales’ ver-
sion concerning what Moynihan said in their conversations
because Gonzales would without doubt not have given de-
tailed reports respecting Moynihan’s remarks to the other
employees unless the conversations occurred as he testified
or unless he was involved in some elaborate plot too fantas-
tic to reasonably contemplate on this record. Further support-
ing my finding here, I found Gonzales’ demeanor to be sig-
nificantly superior to that of Moynihan particularly during
the portion of the latter’s testimony at issue here.
In summary, based on the record as a whole, the demeanor
of the two witnesses and the corroboration that Gonzales’
testimony received through the testimony of witnesses who
received his almost contemporary reports of Moynihan’s
statements to him, I credit Gonzales over Moynihan when
the two differ. I find therefore that Moynihan on Thursday,
March 24, told Gonzales that he intended to retain the
Maersk staff and that he told Gonzales on March 25 that he
had heard from his superiors that he had no right to tell
Gonzales ‘‘anything about labor’’ and that he was not going
to have anything to do with the initial hiring decisions.
b. The subpoena issues
Bernise Gald and Linda Kennedy testified as described
above about various conversations with Lee and Moynihan
concerning a subpoena Gald had received for jury duty.
Moynihan and Lee, in essence, disputed the specifics of the
two Maersk employees’ testimony. The version of events
given by the two Maersk employees is the more coherent and
logical and is mutually corroborative. Their demeanor was
superior to that of Lee and Moynihan on the issue. Lee and
Moynihan struck me in their testimony as simply preferring
to deny or fail to recall actions and statements that they felt
might be inconsistent with their employer’s defense. The two
Maersk employees to the contrary convinced me they were
testifying truthfully about events they clearly recalled. Ac-
cordingly, I credit Gald and Kennedy over Lee and Moy-
nihan when the testimony on the matter differs.
c. Statements in contest respecting Respondent’s
intention to hire Maersk employees
Union Officials Joe Ibarra and Jerry Rich contended either
William Lee or James Moynihan was directly asked if Re-
spondent was retaining the current Maersk employees and
that one or the other specifically said that Maersk’s employ-
ees would be retained by Respondent in the meeting of the
four individuals at the union premises on March 21. Neither
1021NEW BREED LEASING CORP.
Moynihan nor Lee acknowledged either being asked if Re-
spondent would retain the Maersk employees or asserting
that Respondent would in fact do so.
I specifically credit Iberra and Rich and discredit Moy-
nihan and Lee who, I believe, found it convenient to simply
fail to recall statements made which they wished had not
been made. Beyond the question of demeanor, which strong-
ly favored Iberra and Rich in this aspect of their testimony,
I find it very probable that the union agents would have
asked about the Maersk employees they then represented and
would have remembered the favorable response of Respond-
ent’s agents. The issue of the employees’ retention was a
matter of import to the Union and the individuals in the rep-
resented bargaining units. Because Moynihan’s testimony
made it clear that he was sure that the union agents at the
meeting believed that the Maersk employees would be re-
tained, there is no question that the subject was in the minds
of all at the meeting. Given all the above, I find little reason
to doubt the union agents’ testimony that they received ex-
plicit assurances in that regard from Respondent.
I reach the same conclusion for similar reasons respecting
the contention of Maersk employee Kevin Reilly that Re-
spondent’s agent, Woods, in reviewing Reilly’s duties at the
workplace told him Maersk employees would be retained. I
find it highly probable that a Maersk employee would regard
it of primary importance to learn if his or her job were to
continue into the following month and would ask an official
of the new employer if his or her job was safe. Further, hav-
ing received such an assurance, I do not believe that the em-
ployee would be inclined to miscall the answer received, nor
do I believe that Reilly simply lied about the conversation.
I was particularly impressed with the demeanor of the
Maersk employees including Reilly and am convinced his
testimony was consistent with his recollection of events.
I think that Woods, like other of Respondent’s agents,
gave initial assurances to Maersk employees that they would
be hired and, when the subsequent events and litigation made
that conduct inconvenient to acknowledge, simply forgot that
it had occurred. In denying the attributions of the employees,
Woods, like Moynihan and Lee discussed above, struck me
as a witness not testifying from a memory of events but rath-
er denying inconvenient actions directly or through the mech-
anism of an asserted failure to recall.
4. Hiring issues—the 8(a)(3) and (1) allegations
a. Argument of the parties respecting Respondent’s
hiring motivation
The parties argued at trial and on brief at length regarding
Respondent’s motivation underlying its hiring of staff at the
army terminal. Addressing the highlights of those arguments
here, Respondent argues that as a commercial entity it has
an established philosophy disfavoring wholesale hiring of the
employees of the employers whose operations Respondent
assumed. Further, Respondent argues that it has had a con-
sistent practice of utilizing ‘‘blind’’ newspaper advertise-
ments as a means of creating an initial pool of job applicants
from which final hires were made. Respondent argues that its
hiring at the army terminal, both with respect to its place-
ment of newspaper advertisements and its nonsolicitation of
Maersk’s army terminal employees, was consistent with its
past practice and therefore free from improper, unlaw-
ful, or antirepresentational considerations.
The General Counsel and the Charging Parties attack Re-
spondent’s argument in several ways. First, they argue that
the past practices of Respondent were not in fact followed
at the army terminal. Thus, the prosecution emphasizes that
Respondent in its bid had documents specifically represented
that it had made provisions to work the PMA to acquire a
skilled work force and further represented:
For long-term employees, a selection process will
begin not later than March 15. These opportunities can
be posted and selection conduced under PMA auspices
to ensure employees of known skill levels.
. . . .
The New Breed site manager will be a participant on
the implementation team. Supervisors will be selected
and will begin training by March 21st and workers by
March 28th. If existing employees are retained, they
will be working already, and any added training will
take place as soon as possible.
Thus, the General Counsel argues that Respondent in the
instant case had in effect publicly committed itself from the
very beginning of its efforts to obtain the army terminal con-
tract to the hire of the existing employees and that, whether
by using the auspices of the PMA or the retention of the ex-
isting employees, Respondent was not following its past
practices.
The General Counsel and the Charging Parties further
argue that, unlike all of Respondent’s earlier hiring experi-
ences described in the record, Respondent’s advertisement
and job hire implementation in the instant case did not occur
early on in the bidding process. Thus, the past practice of
Respondent was to advertise for employment well before the
operation was to be started and in many cases even before
Respondent was assured of receiving the work. In the instant
case Respondent’s hiring occurred well after the bid had
been awarded Respondent and within a very few days of the
time Respondent was to commence operations.
The General Counsel and the Charging Party argue that
the credible record evidence supports the conclusion that Re-
spondent at all times intended to hire outside or nonpred-
ecessor employees so as to avoid creating any obligation to
recognize and bargain with the Unions. Thus the moving par-
ties argue that Respondent’s contacts with PMA and the
Unions as well as the statements made by its agents to
Maersk employees were simply part of an elaborate charade
designed to conceal Respondent’s true intention to hire out-
side employees and operate without recognizing and bargain-
ing with the Unions until the last possible minute. The Gen-
eral Counsel argues Respondent’s agents affirmatively de-
ceived both the Maersk employees and the Union by assert-
ing the Maersk employees would be hired while following a
concealed parallel track of offsite interviews and hiring.
Respondent argues that, while it did give initial consider-
ation to joining PMA and, consequently, recognizing the
Unions, it ultimately did not join the PMA for business rea-
sons which, in all events, are not under challenge by the
General Counsel. Having made that decision, Respondent ar-
gues, it simply utilized its usual hiring practices and, indif-
ferent to the source of its job applicants as former Maersk
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Such a course is not wildly improbable even for employers who
have no previous experience with represented units. The contract that
Respondent was pursuing through its bid covered the wages of em-
ployees. Such an agreement would greatly facilitate staffing. Further
as Justice White noted in NLRB v. Burns International Security Serv-
ices, 406 U.S. 272 at 291 (1972):
In many cases, of course, successor employers will find it ad-
vantageous not only to recognize and bargain with the union,
but also to observe the pre-existing contract rather than to face
uncertainty and turmoil.
10 Colonel Faver was a no-nonsense, straight forward witness with
an impressive demeanor, firm recollections, and no evident stake in
shaping his testimony to favor any particular point of view. I found
his testimony highly credible and have relied on it heavily in reach-
ing my findings.
employees or no, hired those applicants it felt most qualified
for the positions open without consideration of irrelevant fac-
tors such as applicants’ former Maersk unit employee status
or union membership and without consideration of its poten-
tial bargaining obligations.
b. Findings and conclusions
(1) Respondent’s creation of two hiring options
On this record and given the credibility resolutions noted
above, I find as follows. It is clear that in the initial stages
of the bid process, Respondent’s agents, both as reflected in
their contacts with PMA and in the representations, quoted
above in its bid documents, either decided to or strongly con-
sidered joining PMA and adopting and applying the collec-
tive-bargaining contracts to its army terminal operations.9
Part and parcel of this action was hiring through PMA’s
‘‘auspices,’’ which, it soon became apparent, included retain-
ing Maersk unit employees.
It is also clear that, either a part of initial caution or as
a result of second thoughts respecting its earlier decision. Re-
spondent endeavored to create a second option, that is the
choice of neither joining PMA or using PMA to staff the op-
eration. This management decision to create a second option
occurred no later than its determination to place blind em-
ployment advertisements in a local paper. The testimony in-
dicates that this occurred no later than March 17 or 18. The
record seems clear that each option was still under consider-
ation at that time. Thus, Hunt or Lee told Colonel Faver in
their March 17 meeting, in Colonel Faver’s recollection10
that I credit, that no decision on ‘‘the future of the current
work force’’ had as yet been made by Respondent. This is
consistent with Moynihan’s version of events. He testified
that he was told by CEO LeJoy that same day that ‘‘there
were decisions yet to be made concerning labor.’’
From the testimony it is also clear that a final decision by
Respondent’s highest level of management respecting reten-
tion of the Maersk staff had still not been made by Friday,
March 25. Colonel Favor testified that Moynihan told him on
that day that Respondent’s decision respecting the work force
would be made by headquarters that coming weekend. Moy-
nihan and LeJoy each testified that the final decision was
made that weekend.
(2) Respondent’s hiring decisions
(a) The legal standard to be applied
None of the above findings respecting timing are incon-
sistent with either the General Counsel and the Charging Par-
ties’ or Respondent’s argued view of Respondent’s motiva-
tion in hiring. Given my rejection of the Charging Parties’
argument that Respondent was obligated to join the PMA as
precluded by the General Counsel’s contrary position, Re-
spondent’s argument that, once having decided not to join
PMA, it thereafter simply hired employees consistent with its
past practice based on an objective evaluation of their merits
irrespective of their former status as Maersk unit employees,
is not implausible and, if sustained, defeats the 8(a)(3) alle-
gations of the complaint.
The General Counsel, having taken the position that Re-
spondent’s decision not to join the PMA was not improper,
argues, however, that Respondent further specifically deter-
mined not to hire the predecessor’s (i.e., Maerck’s) employ-
ees in order to avoid being obligated as a successor to recog-
nize and bargain with the Unions. Thus, the General Counsel
argues that the Maersk employees were deliberately not hired
because of their union activities and the fact of their union
representation. Thus, the General Counsel argues that Re-
spondent engaged in a course of conduct designed to avoid
hiring Maerck employees in violation of Section 8(a)(3) and
(1) of the Act.
The burden of proof respecting the issue of Respondent’s
motivation in hiring is squarely born by the General Counsel.
In a situation such as that presented herein the Board applies
the causation test enunciated in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). See, e.g., Cham-
pion Rivet Co., 314 NLRB 1097 (1994). Under the Wright
Line standard the General Counsel is required to make a
prima facie showing sufficient to support the inference that
protected conduct was a motivating factor in the employer’s
decision not to hire the predecessor’s employees. If this is
established, the burden shifts to the employer to demonstrate
that the same action would have taken place even in the ab-
sence of the protected conduct.
Further, the Board noted in U.S. Marine Corp., 293 NLRB
669 at 670 (1989):
The Board has held that the following factors are
among those that establish that a new owner has vio-
lated Section 8(a)(3) in refusing to hire employees of
the predecessor: substantial evidence of union animus;
lack of a convincing rationale for refusal to hire the
predecessor’s employees; inconsistent hiring practices
or overt acts or conduct evidencing a discriminatory
motive; and evidence supporting a reasonable inference
that the new owner conducted its staffing in a manner
precluding the predecessors employees from being hired
as a majority of the new owner’s overall work force to
avoid the Board’s sucessorship doctrine.3
3 Houston Distribution Service, 227 NLRB 960 (1977); Lemay Car-
ing Centers, 280 NLRB 60 (1986), enfd. mem. 815 F.2d 711 (8th Cir.
1987).
1023NEW BREED LEASING CORP.
11 There is no business justification for the creation of two pools
of potential employees apparent on this record, nor does Respondent
advance one. Rather, Respondent argues that its job hires were based
on individual determinations of applicant merit and that Maersk em-
ployees who applied would have been evaluated on their individual
merits as were other applicants.
12 I reject Respondent’s arguments that it was essentially ignorant
of the legal consequences of hiring or not hiring a majority of the
predecessor’s employees in a previously union represented bargain-
ing unit. Respondent’s management officials did not impress me as
either ignorant or naive respecting the commercial world. Further, as
noted above, CEO Lejoy took legal counsel before deciding not to
join the PMA or retain the Maersk staff.
(b) Conclusions respecting Respondent’s motivation
in hiring
(i) The General Counsel’s prima facie case
Applying Wright Line with the quoted factors set forth in
U.S. Marine in mind, I find the General Counsel has met his
burden to make a prima facie showing sufficient to support
the inference that protected conduct was a motivating factor
in Respondent’s decision not to hire the Maersk employees.
I do so for the following reasons.
First, I accept the General Counsel and the Charging Par-
ties’ argument that the past practice of Respondent respecting
hiring is largely inapplicable to the instant situation because
of the very different timing and circumstances presented.
Thus, the lateness of the hiring relative to its assumption of
operations, the fact that Respondent had earlier announced an
intention to use PMA auspices to accomplish hiring and the
fact that it had made it clear to the Maersk employees and
the Union that the Maersk employees would be retained—all
these factors distinguish the instant case from Respondent’s
previous hiring experiences.
Second, and most critical to my finding, I find that Re-
spondent took two actions that together precluded hire of
Maersk employees. Thus, I find that Respondent initially set
up two exclusive pools of potential army terminal employ-
ees—those who responded to its blind newspaper advertise-
ments and the Maersk employees—and affirmatively acted to
keep the Maersk employees from being aware of or becom-
ing part of the former group of newspaper advertisement re-
sponders. Thus, as found above, Respondent’s agents took
various steps to convince the Unions and Maersk employees
that the Maersk employees would be retained. These assur-
ances combined with Respondent’s failure to divulge the ex-
istence of the offsite application and hiring process effec-
tively precluded the Unions or Maersk employees from ever
becoming aware of or participating in the offsite hiring proc-
ess.
In making this finding I specifically reject Respondent’s
contentions that Maersk employees could have applied for
and would then have been considered for employment. Re-
spondent’s affirmative acts of deception, as found above, fa-
tally impeach this assertion. I reject as improbable, incred-
ible, and insincere Moynihan’s assertion to Colonel Faver
that he was surprised that no Maerck employees had applied
for employment. I also find the testimony of Moynihan that
he referred Maersk employees to headquarters when they
asked about the employment process at the very time other
Respondent agents were screening applicants off site in
Compton supports my finding. Given the fact that Moynihan
knew Gonzales had repeated to Maersk employees Moy-
nihan’s barroom statements to Gonzales that the Maersk em-
ployees were to be retained, Moynihan well knew those em-
ployees were unlikely to take active steps to apply for jobs
in essence already promised them.
Respondent’s second action was to insure that only non-
Maersk employees were hired for Respondent’s army termi-
nal operations. Having created and maintained two separate
pools11 of potential hirees, Respondent’s chief executive offi-
cer instructed his agents to hire all employees from the pool
that excluded the Maersk employees. In the March 27, 1994
conversation in which LeJoy informed Moynihan that Re-
spondent would not be joining the PMA, he also instructed
Moynihan whom to hire. Moynihan testified LeJoy told him
to ‘‘go ahead and select from the people I had interviewed
for employment.’’ At no time was the possibility of belatedly
informing Maersk employees of the hiring process or other-
wise considering offering employment to Maersk employees
ever contemplated. Thus, Respondent decided to hire only
from a pool of applicants from which all Maersk employees
had been excluded. This is strong evidence in my view that
Respondent was motivated to exclude all Maersk employees
from potential hire.
Even if Respondent’s constructive exclusion of the Maersk
employees from the pool of applicants was benign up to this
point, which I do not find, Respondent did not thereafter so-
licit applications from Maersk employees who, being un-
aware of the process, did not apply. Indeed, Moynihan, even
as late as Monday, March 28, the day following his receipt
of LeJoy’s instructions to begin hiring from the newspaper
applicant pool, continued to actively mislead Maersk employ-
ees into believing that they were being retained by Respond-
ent. Thus, Moynihan on that day, in Gald’s credited testi-
mony, continued to represent to her that Respondent was tak-
ing care of her jury duty obligation so that she could be
present at work during the transition to Respondent’s oper-
ation of the army terminal. This continuing pattern of
misstatements to employees, clearly intended to create the
impression that they would be hired by Respondent, even
after a specific decision had been made and communicated
to Moynihan that the Maersk employees were not to be re-
tained, further demonstrates that Respondent sought to ex-
clude all Maersk employees for its applicant pool.
I find from all of the above compelling evidence that Re-
spondent intended to avoid hiring Maersk employees and un-
dertook a course of conduct designed to and successful in
reaching the intended result—the exclusion of all Maersk
employees from the selected hiring pool. Given the fact that
the timing of the decision not to hire Maersk employees was
coterminous with Respondent’s decision not to join PMA, a
strong inference may be drawn, and which on this record I
do draw, that the reason for the decision sounded in the rep-
resentational consequences of the hiring choices. Respondent
simply wanted to avoid any of the numerous complications
that would arise if a successorship obligation was created as
a result of the hiring of Maersk employees.12
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Many of the requirements of successorship are not in dispute.
Thus, for example, Respondent’s army terminal operation was essen-
tially the same as Maersk’s and Respondent’s commencement of op-
erations followed immediately on Maersk’s cessation of operations
without hiatus.
(ii) Respondent’s argument that it would not have hired
the Maersk employees irrespective of the fact of their
representation by the Unions
Once the General Counsel has established a prima facie
case under Wright Line, the burden shifts to Respondent to
demonstrate that the same action would have taken place
even in the absence of protected conduct. Thus, Respondent
bears the burden of demonstrating that the Maersk employees
would not have been hired, even had they never been rep-
resented by the Unions.
Two general types of arguments were made by Respond-
ent that the Maersk employees would not have been hired.
The first, that generally Respondent did not approve of hiring
predecessor employer employees as a class because of pos-
sible trouble from the former employer, is not persuasive in
the instant case because, as discussed in detail above, Re-
spondent had widely announced its intention of retaining the
employees and because the lateness of the hiring decisions
made the hiring of experienced staff highly desirable. Past
practice was simply not controlling in the instant, signifi-
cantly different circumstances.
Respondent argued further that the initial impressions of
the Maersk employees taken by Respondent’s agents in their
initial visits to the premises and in conversations with PMA
agents, Maersk agents, and other individuals was that they
were a dismal and inefficient lot who were unworthy of hire.
Respondent is entitled to form subjective impressions of em-
ployment applicants and to hire them or not hire them based
on any reason or reasons other than those prohibited under
the Act. Had Respondent come to dislike and refuse to hire
the Maersk employees either as a class or individually for
benign reasons, Respondent’s defense would be sustained
and the 8(a)(3) complaint allegations dismissed.
Respondent’s assertions must be addressed in two parts.
First, to the extent Respondent is asserting that the Maersk
employees were properly rejected as a class, based on their
work quality, Respondent has not sustained its burden of
proof. To the contrary, Moynihan’s statements to Gonzales,
as found above, establish that Moynihan, the onsite manager
who had a major role in the final selection of new employ-
ees, thought well of at least some of the Maersk employees
and intended to retain them if he could. I simply do not find
the testimony of Respondent’s witnesses respecting their un-
favorable impressions of the Maersk work force generally is
sufficient to overcome the substantial evidence that there
were Maersk employees who were viewed objectively and
subjectively as worthy of consideration by Respondent. In-
deed, Respondent’s argument that any Maersk employee who
had applied for employment would have been considered on
his or her own merits, supports my finding that the Maersk
employees, as a class, were not and could not properly have
been rejected by Respondent.
Respondent’s argument also suggests that, if some or all
of the Maersk employees had applied for employment with
Respondent, they would have been rejected individually
based on their individual merits as compared to the individ-
uals actually hired. Even when, as here, a general finding of
impermissible motivation in hiring has been made, a re-
spondent may show that individual predecessor employees
would not have been hired under any circumstances. See,
e.g., Honda of Hayward, 307 NLRB 340 (1992).
Respondent on this record, however, has not established
sufficient credible evidence that, had any particular Maersk
employee applied for employment with Respondent, that per-
son would have been rejected on his or her merits irrespec-
tive of the union representation issue. Not only does Re-
spondent bear the burden on the issue as set forth in Wright
Line, it also bears the additional burden resulting from the
fact that it was its unlawful conduct that caused the Maersk
employees to be ignorant of and hence not participant in the
offsite interview and hiring process as all those who were ul-
timately hired did. Thus, it is a matter of speculation what
would have occurred had Maersk employees participated in
the offsite interview and hiring process. The Board has long
held that to the extent there is uncertainty with respect to
what a respondent would have done absent its unlawful pur-
pose, such uncertainty must be resolved against the wrong
doer who cannot be permitted to benefit from its unlawful
conduct. Love’s Barbecue Restaurant No. 62, 245 NLRB 768
(1979). Given the essential paucity of evidence respecting
particular Maersk employees and what would have happened
had they applied, I find Respondent’s arguments in this re-
spect fail on their facts.
(iii) Summary and conclusions
In summary, I have found that Respondent undertook a
course of conduct that was designed to prevent and success-
ful in preventing Maersk unit employees from participating
in the offsite interview and hiring process that was the exclu-
sive source of Respondent’s employees for its army terminal
operations. I further found that Respondent motivation for
this exclusion was a desire to insure that no Maersk employ-
ees were hired so as to avoid any possible obligation as a
successor employer to recognize and bargain with the Unions
who represented the Maersk employee bargaining units. Re-
spondent’s failure to hire the Maersk unit employees because
of the fact of their union representation and the desire to
avoid an obligation to recognize and bargain with the Unions
as a successor employer is a violation of Section 8(a)(3) and
(1) of the Act. The General Counsel’s complaint paragraph
11(a) is therefore sustained.
5. The bargaining issues—the 8(a)(5) allegations
a. The existence of a bargaining obligation
Because the General Counsel makes no contention that
Respondent ever recognized the Unions as representatives of
its employees, the only theoretical mechanism for obligating
Respondent to recognize and bargain with the Unions is a
successor employer’s obligation to recognize the union or
unions that represented its predecessor’s employees. Under
the Supreme Court’s doctrine established in NLRB v. Burns
International Security Services, 406 U.S. 272 (1972), and its
progeny, a new employer is bound to recognize and bargain
with the labor organization that represented the predecessor
employer’s employees under certain conditions.13 Relevant
here is the successorship requirement that the new employer
1025NEW BREED LEASING CORP.
14 Based on the uncontradicted testimony of various witnesses and
the stipulations of the parties, I find that Respondent set its own
terms and conditions of employment that were in material aspects
different from those Maersk unit employees had enjoyed under the
PMA contracts.
15 The General Counsel has alleged in pars. 10(a), 13, and 15 of
the complaint that Moynihan’s statement to the Unions—not to em-
ployees—that it would be futile for them to request recognition as
the unit employees’ representative violated Sec. 8(a)(1) and (5) of
the Act. In the absence of citation of authority finding such conduct
violative of the Act, I decline to sustain the violations alleged.
have hired a majority of the predecessor’s work force in the
relevant units.
Respondent in fact hired none of the predecessor’s work
force. The General Counsel has alleged and I have found,
however, that Respondent wrongfully failed to hire the pred-
ecessor’s unit employees. In such circumstances the Board
determines what the employee compliment would have been
had the Act not been violated and applies its successorship
standards to that situation. Honda of Hayward, 307 NLRB
340 (1992). As found above on this record I have concluded
that had Respondent not violated the Act it would have hired
the Maersk unit employees who would then have constituted
a majority, if not the entirety, of Respondent’s employees in
each of the two bargaining units at issue. Given the construc-
tive majority existing in each bargaining unit, I find that Re-
spondent was a successor to Maersk regarding each unit and
therefore was obligated to recognize and bargain with the
Unions concerning each.
b. The time of attachment of the bargaining obligation
A separate issue arises respecting the specific date Re-
spondent’s bargaining obligations respecting each unit at-
tached. The normal successorship bargaining obligation arises
at the time the successor employer has hired a majority of
the predecessor’s employees. The obligation does not in such
situations arise at the onset of Respondent’s hiring, but only
after a sufficient number of employees have been hired to
make the final numeric outcome known. The fact that the
bargaining obligation does not typically attach at the very be-
ginning of an employer’s hire of employees is important be-
cause, if an employer is not obligated from the inception of
its hiring to bargain with a labor organization concerning
terms and conditions of employees’ employment, it is free to
set initial terms and conditions of employment of its employ-
ees and to change those conditions without bargaining with
the union until the time the bargaining obligation attaches.
A different situation obtains in those situations when a
new employer makes it clear before any hiring occurs that
it intends to retain the predecessor’s employees. In such a
situation, it is obvious from the onset that the union will rep-
resent a majority of the successor’s employees and the bar-
gaining obligation therefore attaches immediately, before em-
ployees have been hired. In such a situation the employer is
not free to set initial terms and conditions of employment
without bargaining with the labor organization or organiza-
tions that represent the employees. In such a situation, the
terms of employment maintained by the predecessor must be
carried forward unless and until bargaining has occurred. The
Board discusses these timing issues and their consequences
in Spruce Up Corp., 209 NLRB 194 (1974).
In the instant case I have found that Moynihan told an em-
ployee, before Respondent hired any employees, that Re-
spondent would retain all the Maersk employees. I have also
found that Respondent’s subsequent determination not to re-
tain the Maersk was improper and a violation of the Act. I
find it is appropriate on this record to rely on the statement
of Moynihan and the other evidence that, but for the desire
to avoid being bound as a successor, Respondent would have
hired the Maersk work force and hold Respondent to have
determined, before any unit employees were hired, that the
predecessor’s unit complements would be retained.
Given this factual finding, I further find that Respondent
was obligated from the commencement of its operations, and
before it hired any non-Maersk unit employees, to recognize
and bargain with the Unions respecting the employees in the
two bargaining units noted above. Thus, Respondent was ob-
ligated to bargain with the Unions about the terms and condi-
tions of unit employees it offered the unit employees it hired
and was obligated to obtain the agreement or the Unions or
bargain to impasse on any changes in those employees’ terms
and conditions from the Maersk terms.
c. Conclusions
I have found that Respondent was obligated as a successor
to recognize and bargain with the Unions respecting the bar-
gaining units they represented with the predecessor employer,
Maersk, and that Respondent was obligated to do so from the
onset of its hiring of unit employees. There is no dispute that
Respondent never recognized nor bargained with the Unions
concerning unit employees’ terms and conditions of employ-
ment nor matched the terms and conditions of employment
earlier applied to Maersk’s unit employees under the PMA
contracts with the Unions.14 Once Respondent’s operations
were underway, it continued to change unit employees’ terms
and conditions of employment in material ways without rec-
ognizing, notifying, or providing the Unions an opportunity
to bargain respecting the changes.
Respondent’s failure to recognize and bargain with the
Union’s concerning the two bargaining units, as noted above,
including its failure to bargain respecting the setting of unit
employees initial terms and conditions of employment and
subsequent changes in those terms and conditions of employ-
ment, violated Section 8(a)(5) and (1) of the Act. Accord-
ingly, and based on the entire record, I sustain the General
Counsel’s complaint allegations 8, 9, 10(b), and 11(b), (c),
and (d).15
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall order it to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the purposes and policies of the Act. With respect to
the appropriate remedy of the violations of Section 8(a)(3)
and (5) of the Act, I shall follow the teachings of Fremont
Ford, 289 NLRB 1290, 1297–1298 (1988).
I shall order Respondent to offer the former Maersk unit
employees in writing immediate, full, and unconditional em-
ployment in the unit positions they occupied when employed
by Maersk, terminating unit employees not formerly em-
ployed by Maersk as necessary, if such positions no longer
exist, they shall be offered substantially equivalent positions,
without prejudice to their seniority and other rights and privi-
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
leges they would have enjoyed if initially hired at the com-
mencement of Respondent’s operations, and to make them
whole for any loss of earnings and benefits in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), and New
Horizons for the Retarded, 283 NLRB 1173 (1987).
I shall further order Respondent give all unit employees
written notice that it will recognize and bargain with the
Unions as specifically identified above as the exclusive rep-
resentative of employees in each unit. I shall also order Re-
spondent to remove from its records all references to its re-
fusal to employ the Maersk employees and notify each of
them in writing that this has been done and further assure
them that the fact of their original nonhire will not be used
against them in the future.
I shall order Respondent to recognize and, on request, bar-
gain with the Unions identified above as the exclusive rep-
resentative of all its employees in each unit. I shall also
order Respondent, on the Unions’ request, to restore the sta-
tus quo ante with respect to each unit, to rescind the unilat-
eral changes, including all initial terms and conditions of em-
ployment different from those in place under Maersk’s agree-
ment with the Unions, in unit employees’ wages, hours, and
terms and conditions of employment implemented on and be-
fore April 1, 1994, and subsequently; and to make all af-
fected unit employees whole for losses they incurred by vir-
tue of its unilateral changes in their wages, fringe benefits,
and other terms and conditions of employment in accordance
with Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in New Horizons for the Retarded,
supra.
Respondent shall determine all payments it owes to em-
ployee benefit funds in the manner set forth in Merryweather
Optical Co., 240 NLRB 1213, 1216 fn. 7 (1970). Respondent
shall reimburse its employees in the manner set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. 661
F.2d 940 (9th Cir. 1981), for any expenses resulting from
Respondent’s failure to make these payments.
In view of the widespread and egregious nature of Re-
spondent’s violations of the Act, I shall also include a broad
cease-and-desist order. See Hickmont Foods, 242 NLRB
1357 (1979).
On the basis of the above findings of fact and the record
as a whole, I make the following
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 Unions are, and each or them is, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(3) and (1) of the Act
by failing and refusing to hire the unit employees employed
by Maersk in order to avoid an obligation to recognize and
bargain with the Unions as a successor employer:
4. At all times since the commencement of Respondent’s
operations, the Unions, as set forth below, have been the ex-
clusive representative for purposes of collective bargaining of
Respondent’s employees in the following units:
The longshore and marine clerks unit represented by the
Longshore Locals:
All longshoremen and marine clerks employed by Re-
spondent at 1312 Medium Post Command located at
1620 South Wilmington, Compton, California, exclud-
ing all other employees, professional employees, man-
agement employees, temporary management employees,
trainees, confidential employees, salesmen, guards,
watchmen, and supervisors as defined in the National
Labor Relations Act.
The office clerical unit or OCU represented by Local
OCU:
All office clerical employees employed by Respondent
at 1312 Medium Post Command located at 1620 South
Wilmington, Compton, California, excluding all other
employees, professional employees, management em-
ployees, temporary management employees, trainees,
confidential employees, salesmen, guards, watchmen,
and supervisors as defined in the National Labor Rela-
tions Act.
5. Commencing in March 1994 and continuing to date,
Respondent violated Section 8(a)(5) and (1) of the Act by
engaging in the following acts and conduct:
(a) Failing and refusing to recognize the Unions as the ex-
clusive representatives of employees in the units described
above for purposes of collective bargaining.
(b) Failing and refusing to meet and bargain with the
Unions respecting the setting of initial terms and conditions
of employment of unit employees.
(c) Unilaterally and subsequent changing both initial and
subsequent terms and conditions of employment for unit em-
ployees without notifying the Unions of such initial terms
and subsequent changes nor affording them an opportunity to
bargain respecting such initial terms and changes.
6. The above unfair labor practices constitute unfair labor
practices effecting commerce within the meaning of Section
2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDERS
ORDER GRANTING MOTION TO SEVER CASE
21–CA–30299
The Charging Parties’ Motion to Sever is granted. Case
21–CA– 30299 is hereby severed from Cases 21–CA–29995
and 21–CA–30003. Case 21–CA–30299 shall remain before
the administrative law judge pending decision.
ORDER IN CASES 21–CA–29995 AND 21–
CA–30003
The Respondent, New Breed Leasing Corporation, Comp-
ton, California, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to hire the unit employees of the
predecessor employer, Maersk, in order to avoid becoming
1027NEW BREED LEASING CORP.
17 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
obligated to recognize and bargain with the Unions as rep-
resentative of unit employees.
(b) At all times since March 1994 refusing to recognize
and bargain in good faith with the Unions as the exclusive
representative of the employees in the bargaining units set
forth below by:
(1) Failing to recognize the Unions as representative
of unit employees.
(2) Failing to meet and bargain with the Unions re-
specting terms and conditions of employment for unit
employees.
(3) Unilaterally setting terms and conditions of em-
ployment for bargaining unit employees and thereafter
unilaterally changing those terms
(c) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer in writing immediate and full reinstatement to all
of the former Maersk unit employees to the positions they
held with the predecessor discharging as necessary employ-
ees in the units not previously employed in the predecessor
units or, if those jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed while working
for its predecessor, and them each of them whole for any
loss of earnings and other benefits suffered as a result of the
discrimination against them. With the written reinstatement
offers, Respondent shall notify these individuals in writing
that it will recognize and bargain with the Unions as their
exclusive representative.
(b) Remove from its files any reference to the unlawful re-
fusal to hire the Maersk unit employees and notify these em-
ployees in writing that this has been done and that this un-
lawful conduct will not be used against them in any way.
(c) On request, bargain with the Unions as the exclusive
bargaining representative of the employees in the following
appropriate units concerning employees’ terms and condi-
tions of employment and, if understandings are reached, em-
body said understandings in signed agreements:
The longshore and marine clerks unit represented by the
Longshore Locals:
All longshoremen and marine clerks employed by Re-
spondent at 1312 Medium Post Command located at
1620 South Wilmington, Compton, California, exclud-
ing all other employees, professional employees, man-
agement employees, temporary management employees,
trainees, confidential employees, salesmen, guards,
watchmen, and supervisors as defined in the National
Labor Relations Act.
The office clerical unit or OCU represented by Local
OCU:
All office clerical employees employed by Respondent
at 1312 Medium Post Command located at 1620 South
Wilmington, Compton, California, excluding all other
employees, professional employees, management em-
ployees, temporary management employees, trainees,
confidential employees, salesmen, guards, watchmen,
and supervisors as defined in the National Labor Rela-
tions Act.
(d) On request of the Unions, restore the status quo ante
of unit employees, rescind the unilateral changes in the unit
employees’ wages, hours, and working conditions that were
implemented in the hiring of unit employees in March 1994
and thereafter, and make all affected employees, including
those whose employment is directed above, whole for any
and all losses they incurred by virtue of the unilateral
changes to their wages, fringe benefits, and other terms and
conditions of employment from the initial hire of unit em-
ployees in March 1994, until it negotiates in good faith with
the Unions to agreement or to impasse, in the manner set
forth in the remedy section of the decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records
and other records and documents necessary to analyze the
amount of backpay and other moneys due under the terms
of this Order and to insure that this Order has been fully
complied with.
(f) Post at its Compton, California facility copies of the at-
tached Notice marked ‘‘Appendix.’’17 Copies of the notice,
on forms provided by the Regional Director for Region 21,
in English and such other languages as the Regional Director
determines are necessary to fully communicate with employ-
ees, after being signed by Respondent’s authorized represent-
ative, shall be posted for 60 consecutive days in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to ensure the notices are not altered, defaced, or
covered by other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
Ami Silverman and Jean C. Libby, Esqs. for the General
Counsel.
Gary F. Overstreet and Michael R. Goldstein, Esqs. (Musick,
Peeler & Garrett), of Los Angeles, California, for the Re-
spondent.
Steven Holguin, Esq. (Greenstone, Holguin, Garfield &
Knox), of Los Angeles, California, for Charging Party
Local 13.
Robert Remar, Esq. (Leonard, Carder, Nathan, Zuckerman,
Ross, Chin & Remar), of San Francisco, California, for
Charging Parties Local 63 and Local 63 OCU.
DECISION
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard the above-captioned matter in trial in Los Angeles,
California, on January 30, 1995. Posthearing briefs were due
on March 7, 1995. The case arose as follows.
On April 4, 1994, the International Longshoreman’s and
Warehousemen’s Union (the ILWU), International Long-
shoremen’s and Warehousemen’s Union, Local 13 (Local
1028 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint in Cases 21–CA–29995 and 21–CA–30003 al-
leged that Respondent is a successor employer with respect to two
bargaining units represented by the Unions and that Respondent
wrongfully failed and refused to hire the predecessor employer’s unit
employees in violation of Sec. 8(a)(3) and (1) of the National Labor
Relations Act. The complaint further alleged that Respondent had a
bargaining obligation with respect to employees in the two units and
violated its duty to recognize and bargain with the Union in viola-
tion of Sec. 8(a)(5) and (1) of the Act in the following ways: (1)
by failing to recognize and bargain with the Unions as representa-
tives of its unit employees; (2) in initially establishing its unit em-
ployees’ terms and conditions of employment without bargaining
with the Unions; and (3) by failing to bargain with the Unions re-
specting changes from the predecessor’s terms and conditions of em-
ployment.
2 When not otherwise noted, the findings are based on the underly-
ing record and decision in Cases 21–CA–29995 and 21–CA–30003
and the pleadings, stipulations of counsel, or unchallenged credible
evidence in the instant case.
The findings and conclusions earlier made in my decision in Cases
21–CA–29995 and 21–CA–30003, to the extent they are a necessary
part of my findings and conclusions, are set forth here only in sum-
mary form without an attempt to recapitulate the basis for those
findings. The decision, and the record underlying it, as discussed
above, is a part of the record in the instant case.
13), and International Longshoremen’s and Warehousemen’s
Union, Local 63 (Local 63) filed a charge with Region 21
of the National Labor Relations Board (the Board) docketed
as Case 21–CA–29995 against New Breed Leasing Corpora-
tion (Respondent or the Employer). On April 19, 1993, the
ILWU and Locals 13 and 63 amended their charge. On April
7, 1994, the International Longshoremen’s and Warehouse-
men’s Union, Local 63, Office Clerical Unit (Local 63 OCU
and collectively with the ILWU, Local 13 and Local 63, the
Unions or the Charging Parties) filed a charge with Region
21 docketed as Case 21–CA–30003 against Respondent. On
September 29, 1994, the Unions filed a charge docketed as
Case 21–CA–30299 against Respondent and amended the
charge on December 14, 1994.
On May 27, 1994, the Regional Director for Region 21
issued an order consolidating cases, consolidated complaint,
and notice of hearing consolidating Cases 21–CA–29995 and
21–CA–30003. Respondent filed an answer to the consoli-
dated complaint dated June 10, 1994. The complaint and the
answer were each further amended at the September 26,
1994 hearing. On September 26 through 29, 1994, hearings
were held respecting Cases 21–CA–29995 and 21–CA–
30003.
On November 25, 1994, the Regional Director for Region
21 issued a complaint respecting Case 21–CA–30299. The
complaint alleges some of the same violations of the Act as
the consolidated complaint respecting Cases 21–CA–29995
and 21–CA–300031 (the earlier complaint) with the addi-
tional allegations that Respondent terminated three employ-
ees in late September and early October 1994 because of
their union activities in violation of Section 8(a)(3) and (1)
of the Act and changed work rules of unit employees without
bargaining with the Unions in violation of Section 8(a)(5)
and (1) of the Act.
On December 12, 1994, the General Counsel filed a mo-
tion to consolidate the complaint with the case then-pending
decision in Cases 21–CA–29995 and 21–CA–30003. I grant-
ed the motion by Order dated January 3, 1995.
The reopened hearing on the consolidated complaints was
held on January 30, 1995. At that hearing counsel for Charg-
ing Party Local OCU moved that the cases be severed to ex-
pedite the issuance of the decision in Cases 21–CA–29995
and 21–CA–30003. The General Counsel, with the concur-
rence of the other parties, took the position that, if the sever-
ance motion were granted, the existing record to that date re-
specting Cases 21–CA–29995 and 21–CA–30003 should be
made a part of the litigation of the complaint in Case 21–
CA–30299.
On February 14, 1995, I issued an Order Granting Motion
Severing Case 21–CA–30299 and Decision in Cases 21–CA–
29995 and 21–CA–30003 (JD(SF)-25-95), which severed
Case 21–CA–30299 from Cases 21–CA–29995 and 21–CA–
30003, decided the latter two cases, and further held that
Case 21–CA–30299 would remain before me for decision
following receipt of briefs based on a record including the
record and decision in Cases 21–CA–29995 and 21–CA–
30003.
On the entire record as described above, including the de-
meanor of the witnesses, and helpful briefs from the General
Counsel and Respondent, I make the following 2
FINDINGS OF FACT
I. JURISDICTION
At all times since April 1, 1994, Respondent, a New York
corporation with an office and place of business in Compton,
California, has been engaged in the operation of a container
freight station providing warehousing and interstate and for-
eign shipment of cargo pursuant to a contract with the United
States Army respecting its 1312 Medium Port Command (the
army terminal). Based on a projection of its operations, Re-
spondent’s operation of the terminal will annually derive rev-
enues in excess of $50,000 for the warehousing and transpor-
tation of freight in interstate and foreign commerce, under ar-
rangements with various common carriers, each of which op-
erates between California and various other States of the
United States or between California and foreign countries.
Based on those projections, Respondent will annually per-
form services valued in excess of $50,000 for the United
States Army, an enterprise directly engaged in interstate
commerce. Based on its operations Respondent will function
as an essential link in the transportation of freight in inter-
state and foreign commerce.
Based on the above I find that Respondent at all times ma-
terial has been an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATIONS
The Unions are and each of them is, labor organizations
within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Previous Findings
In my decision in Cases 21–CA–29995 and 21–CA–30003,
I found that Respondent had improperly failed to hire the
employees of and was a successor to Maersk Pacific Limited
respecting the operation of the contained freight station of
the 1312 Medium Port Command of the United States Army.
I held further that Respondent was obligated to hire the pred-
1029NEW BREED LEASING CORP.
3 Docket 94–5196 AWT (Ctx).
4 The Ninth Circuit Court of Appeals by memorandum dated Janu-
ary 6, 1995, modified the order of Judge Tashima by deleting the
obligation that Respondent restore the former wages and conditions
of employment of Maersk unit employees and modifying the obliga-
tion to hire all the former employees to allow a demonstration by
Respondent that not all the former Maersk positions would have
been available regardless of any unfair labor practices committed.
ecessor’s employees and obligated to recognize and bargain
with the Unions respecting the units described below:
The longshore and marine clerk unit represented by the
Longshore Locals:
All longshoremen and marine clerks employed by
Respondent at 1312 Medium Post Command located at
1620 South Wilmington, Compton, California, exclud-
ing all other employees, professional employees, man-
agement employees, temporary management employees,
trainees, confidential salesmen, guards, watchmen, and
supervisors as defined in the National Labor Relations
Act.
The office clerical unit or OCU represented by Local
OCU:
All office clerical employees employed by Respond-
ent at 1312 Medium Post Command located at 1620
South Wilmington, Compton, California, excluding all
other employees, professional employees, management
employees, temporary management employees, trainees,
confidential employees, salesmen, guards, watchmen,
and supervisors as defined in the National Labor Rela-
tions Act.
I further found that the bargaining obligation arose before
Respondent hired employees and, therefore, Respondent was
obligated from the very beginning of its hiring to bargain
with the Unions before changing any of the existing (i.e.,
Maersk), terms and conditions of employment.
Because Respondent had changed certain of the unit em-
ployees’ terms and conditions of employment including work
rules and procedures as well as jurisdictional delineations
without bargaining with the Unions, I directed that Respond-
ent restore the status quo ante respecting the bargaining units
and thereafter change those unit terms and conditions only
after notification and bargaining with the Unions.
B. Subsequent Events
1. The Federal district court preliminary injunction
On August 22, 1994, Federal District Court Judge A. Wal-
lace Tashima issued an order granting preliminary injunc-
tion3 in an action brought by the Regional Director against
Respondent pursuant to Section 10(j) of the Act in connec-
tion with the complaint in Cases 21–CA–29995 and 21–CA–
30003. The order directed Respondent, pending final disposi-
tion of the unfair labor practice allegations, inter alia, to offer
full and immediate reinstatement to the former employees of
Maersk to their former positions displacing any persons hired
as their replacements, to restore the wages, hours, and other
terms and conditions of employment of the employees em-
ployed by Maersk in the appropriate units and to recognize
and bargain with the Unions representing the two units.4
Representatives of the Unions and Respondent met re-
specting the court’s order in September 1994. The Unions
sought reinstatement of all the Maersk employees to their
former positions with the same terms and conditions of em-
ployment that had then obtained including the various con-
tractual and other jurisdictional distinctions in job duties and
responsibilities applicable to the three types of employee:
longshoreman, marine clerks, and office clerical. Respondent
took the position that employment would be offered only to
those individuals who were needed under Respondent’s con-
solidated operations and that past practices of Maersk includ-
ing those respecting maintenance of traditional jurisdictional
lines between the various types of employees would not be
restored.
On September 21, and thereafter because of availability
problems associated with the September trial proceedings in
Cases 21–CA–29995 and 21–CA–30003, eight former
Maersk employees were employed by Respondent. Not all
former employees of Maersk who sought reinstatement were
employed nor were all replacement employees displaced. The
three individuals alleged in the instant complaint as
discriminatees were part of this group. Despite the Union
agents’ protestations, Respondent did not restore the status
quo ante with respect to these employee’s working condi-
tions including the jurisdictional distinctions between and
among longshoremen, marine clerks, and office clerical em-
ployees either before or during the employment of the three.
2. The employment and discharge of Larry E. Taylor
Larry E. Taylor had worked at the army terminal for the
various stevedoring contractors since about 1970 as a marine
clerk. He testified his job was basically to supervise paper-
work flow and the ‘‘warehouse situation’’ respecting loading
and shipping of containers. Taylor testified that he went to
work for Respondent on September 21, 1994, and was the
only marine clerk at that time hired by Respondent from
among the former Maersk employees.
Taylor was informed at the commencement of his employ-
ment by Respondent’s project manager and highest onsite su-
pervisor, James Moynihan, that although Taylor had done the
work for many years one way, he was to learn to do it the
way he was directed by Respondent’s agents.
Taylor testified that Respondent did in fact do things dif-
ferently than he had experienced with Maersk under the col-
lective-bargaining agreement. More particularly, the duties of
longshoremen and marine clerks were not separately main-
tained. Rather duties were organized in different ways with
employees doing some tasks that were previously longshore
unit work and other tasks that were previously marine clerk
unit work.
Taylor testified to a variety of work situations in which,
because of the different organization of work, he was called
on to process papers respecting freight he had not directly
tracked with the consequence that he was unable to correct
errors that had occurred in freight disposition. James Moy-
nihan testified that a series of freight handling mistakes cen-
tered around Taylor in the days following his employment.
Moynihan testified that he worked with Taylor to adjust pro-
cedures to insure such mistakes did not continue, but was un-
1030 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
able to prevent their continuing occurrence. Moynihan testi-
fied that he came to the final conclusion that Taylor was
simply sabotaging the job and, on October 3, 1994, termi-
nated him.
3. The employment and discharge of Tommie Nunez
Tommie Nunez had worked at the army terminal for many
years under Maersk and earlier contractors as a longshore-
man. He testified his duties with Maersk were as a ‘‘dock
utility’’ longshoreman stuffing and unstuffing containers,
handling the privately owned vehicles (POVOs) being
shipped, and running associated equipment to accomplish
these tasks.
Nunez reported to work with Respondent on September
21, 1994. He testified that he was aware of the court’s order
and believed he was ‘‘supposed to go back to work the way
it was.’’ During the next few days he was assigned both tra-
ditional longshore work and other work, which under the col-
lective-bargaining agreements would be marine clerks’ work.
He further testified that the working conditions and rules fol-
lowed at Maersk were not followed under Respondent. Thus,
for example, whereas at Maersk a pair of longshoremen
might undertake to stuff a container, under Respondent he
was assigned such duties alone.
On Tuesday, September 27, 1994, Nunez was loading and
unloading back containers of POV’s. In the afternoon he had
difficulty with a vehicle that had a dead battery with a bro-
ken battery post. Unable to start the vehicle, Nunez testified
he requested help to remove the vehicle from the container.
In time he was assigned someone to help him but, not rec-
ognizing the individual as a former Maersk longshoremen
nor as an employee dispatched from the union hiring hall
and, he testified, therefore not having confidence in the em-
ployee’s ability to work safely with him, Nunez refused to
work with the individual. Moynihan was summoned and the
problem reviewed. Moynihan directed Nunez to work with
the assigned employee. Nunez refused and was fired.
4. The employment and discharge of Fred Williamson
Fred Williamson had been a longtime army terminal em-
ployee who worked for Maersk as a marine clerk with the
further classification of chief truck delivery, receiving, and
delivery clerk. Williamson reported for work at Respondent
on September 26, 1994. Williamson testified that Moynihan
directed him to an individual not known to him but identified
by another witness as Bill Christe, a non-Maersk Respondent
employee, for instruction. Williamson went to Christe and
told him he would not take instruction from him because
Christe was not his ‘‘boss.’’ Christe reported to Moynihan
who came over and asked Williamson if he was refusing to
work. Williamson indicated he was not refusing to work, but
that Christe was not his boss.
Following a brief assignment respecting the filing of keys,
Williamson was told by Christe that he was to receive trucks
and that he would show Williamson how to do it.
Williamson testified he replied, ‘‘You ain’t going to show
me nothing.’’ Thereafter Christe went to Moynihan and, in
essence the earlier colloquy with Moynihan was repeated
with Williamson finally acceding to the assignment.
Williamson testified that he had been at his assigned task
for under 2 hours when Moynihan asked him how long he
was going to take to finish. Williamson demurred indicating
he would be done as soon as he could. Williamson recalled
the question and answer were repeated and thereafter Moy-
nihan told him he was fired.
Moynihan testified that Williamson from the time he
showed up on the job was uncooperative, insolent, and in es-
sence trying to sabotage the job. Moynihan noted that
Williamson had refused to cooperate with Christe, been away
from his work assignment location, and been insolently slow
in the completion of assigned tasks. Moynihan testified that
he confronted Williamson when he was going very slowly
through his task of checking out cars and asked when the job
would be done. When Williamson repeatedly refused to sug-
gest when he would complete his assigned tasks, Moynihan
fired him. Moynihan made it clear that in his view
Williamson was simply baiting him throughout the day.
C. Analysis and Conclusions
1. Duplicate allegations sustained in the complaint in
Cases 21–CA–29995 and 21–CA–30003
The instant complaint duplicates allegations contained in
the earlier complaint in Cases 21–CA–29995 and 21–CA–
30003. To the extent that these allegations have been sus-
tained in the earlier matter and no change in the conduct
found violative was presented in the instant case, they will
not be sustained a second time. There is no basis for finding
a further violation of the Act, if the conduct in the instant
case is in effect a continuation of conduct found violative in
the earlier decision and is therefore fully remedied therein.
Thus, for example, the instant complaint alleges at para-
graph 13(a) that Respondent at all times since April 1, 1994,
implemented work rules and procedures and imposed terms
and conditions of employment on the employees in the bar-
gaining units, which were different from those that existed
prior to April 1, 1994. Complaint paragraph 13(d) alleges
these matters are mandatory subjects of bargaining and com-
plaint paragraph 13(e) alleges that this was done without
prior notice to the Unions and without affording the Unions
an opportunity to bargain with Respondent respecting the
conduct and its effect. Complaint paragraph 14 alleges this
conduct to be violative of Section 8(a)(5) of the Act. All
these allegations have been sustained in the prior proceeding
and a remedy directed. The parties stipulated that Respondent
has simply continued during the period relevant the same
conduct found violative in the earlier case.
Respecting those ‘‘repeated’’ alleged violations, I here dis-
miss them as repetitive of the earlier allegations in the prior
case and fully dealt with in the decision in Cases 21–CA–
29995 and 21–CA–30003. The ‘‘new’’ allegations not here
dismissed address the September and October 1994 termi-
nations of three individuals: Larry Taylor, Tommy Nunez,
and Fred Williamson.
2. New complaint allegations
a. The complaint language
Complaint subparagraphs 12(a), (b), and (c) allege that Re-
spondent terminated Taylor, Nunez, and Williamson respec-
tively. Complaint subparagraph 12(d) alleges the terminations
were because the employees assisted the Unions and engaged
in concerted activities, and to discourage employees from en-
1031NEW BREED LEASING CORP.
gaging in such activities. Paragraph 15 of the complaint al-
leges that the conduct set forth in paragraph 12 is discrimina-
tion in regard to the hire or tenure or terms and conditions
of employment of its employees, thereby discouraging mem-
bership in a labor organization in violation of Section 8(a)(1)
and (3) of the Act.
Subparagraphs 13(b), (c), and (e) of the complaint allege:
(b) Since their reinstatements . . . until they were
terminated . . . Williamson, Nunez and Taylor were as-
signed work duties outside their traditional unit jurisdic-
tion, and were subjected to wages, hours and terms and
conditions of employment different from those of
Maersk.
(c) Respondent terminated Williamson, Nunez and
Taylor for violation of work rules and procedures
which were different from the work rules and proce-
dures which had existed prior to April 1, 1994.
. . . .
(e) Respondent engaged in the conduct described
above in paragraphs 12(a) through 12 (c) and 13 (a)
through 13(c), without prior notice to the Unions and
without affording the Unions an opportunity to bargain
with Respondent with respect to this conduct and the
effects of this conduct.
Paragraph 14 of the complaint alleges, inter alia, that Re-
spondent’s actions alleged in paragraphs 12(a) through (c)
and 13(b) through (c) and 13(e) are violations of Section
8(a)(1) and (5) of the Act. Paragraph 16 of the complaint al-
leges the same conduct as violative of Section 8(a)(1) of the
Act.
b. The arguments of the parties
The General Counsel argues on brief that Williamson,
Nunez, and Taylor were confronted with a ‘‘New Breed
way’’ that was far different from what they had experienced
under Maersk’s pre-April 1, 1994 working conditions, was
far different from the working conditions that Respondent
was obligated to apply to them as found in the decision in
Cases 21–CA–29995 and 21–CA–30003 and was far dif-
ferent from what their Union and they had expected when
they commenced employment. The General Counsel argues
that this failure to restore the status quo ante was the cause
of the discharge of each employee. Citing cases for the prop-
osition that employees who lose their jobs pursuant to ille-
gally instituted working conditions are improperly dis-
charged, the General Counsel argues in effect that Respond-
ent could not discharge the three employees for violating uni-
laterally adopted work and jurisdiction rules or for refusing
to abide by such illegal rules. The General Counsel further
argues that the three employees are also entitled to an offer
of reinstatement and backpay under the decision in Cases
21–CA–29995 and 21–CA–30003.
Respondent on brief argues that the three were terminated
for poor performance and insubordination free from any im-
permissible motives and therefore Respondent did not violate
the Act in any way. Further, Respondent argues that if any
of the three were unhappy with their working circumstances
they ‘‘could have worked under protest and subsequently
grieved Moynihan’s instructions,’’ Respondent’s brief at
footnote 3, page 8.
c. Analysis and conclusions respecting the discharges
(1) An initial caveat
In my view the instant case has been somewhat confused
as a result of its consolidation with and subsequent severance
from Cases 21–CA–29995 and 21–CA–30003 after those
cases had been tried, but before a decision respecting them
had issued. At the outset of the analysis it is important to
note what is and is not at issue in the instant case as opposed
to the earlier case. First, as noted above, although the instant
case is not a simple repetition of the complaint allegations
in Cases 21–CA–29995 and 21–CA–30003, to the extent it
does repeat allegations earlier litigated and decided, those re-
peated allegations are not considered anew, but have been
dismissed, above. Second, the instant case is not the compli-
ance stage of the earlier case. That is, a subsequent unfair
labor practice complaint and hearing is not the normal means
or forum for deciding whether discriminatees are entitled to
offers of reinstatement under a remedy directed in an earlier
case. More specifically, addressing the three individuals at
issue, who were ordered hired by Respondent in Cases 21–
CA–29995 and 21–CA–30003, such issues are normally liti-
gated, if then ripe, when Cases 21–CA–29995 and 21–CA–
30003 are in the compliance stage.
(2) The alternative discharge theories of the
General Counsel
(a) The antiunion animus motive theory
The General Counsel has, in essence, two theories of dis-
charge that must be separately considered. The first, alleged
in complaint subparagraph 12(d), is that the three individuals
were discharged by Respondent out of an antiunion,
antiprotected activity, or retaliatory motive. This is a tradi-
tional factual issue.
The General Counsel relies on the animus implicit in the
violations earlier found, in Respondent’s refusal either to hire
all the Maersk employees or to restore the status quo ante
particularly respecting preservation of the work or jurisdic-
tional distinctions clearly of concern to the Unions and the
individuals at issue and in Respondent’s agents’ reactions to
the actions of the three individuals.
Respondent’s agent Moynihan denied his actions in termi-
nating any of the three were so motivated. I discredited Moy-
nihan in the earlier case. I credit him here based on his de-
meanor as well as a consideration of the probabilities and the
record as a whole including the earlier record as noted
above. I believe that he did not fire Williamson, Nunez, or
Taylor for such reasons. From Moynihan’s point of view,
based on his credited testimony, the conduct of the three was
inadequate and merited discharge. There is no evidence that
higher-ups within Respondent’s organization caused these
discharges for antiunion reasons. Accordingly, I find the
General Counsel’s traditional animus theory of illegal dis-
charge is not sustained by the facts.
(b) The discharges as a consequence of illegal working
conditions theory
The General Counsel’s latter theory, as explicated on brief
and described briefly above, is grounded in the line of Board
cases that hold that if an employee is discharged from failing
1032 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to conform to rules or working conditions, which are them-
selves illegally imposed, the discharge is also improper.
The General Counsel’s theory as applied to the instant
case is that Respondent was obligated to restore Williamson,
Nunez, and Taylor to the working conditions they enjoyed
under Maersk and, when Respondent admittedly failed to do
so, it could not properly fire them for their failure to comply
with the illegal working conditions that were in fact applied
to them. As a matter of law, argues the General Counsel, Re-
spondent violated the Act in terminating them for their refus-
als to acquiesce in the illegal working conditions.
The error in the General Counsel’s approach to the termi-
nations under this theory, in my view, is that it presupposes
that for the purposes of deciding this case, Respondent was
obligated to restore the working conditions of the three
former Maersk unit employees at issue. That is, of course,
true under my decision in Cases 21–CA–29995 and 21–CA–
30003 and would be true, if the instant case were in the
compliance stage of that earlier case considering if the three
were reinstated consistent with the Order in that case.
As noted several times, above, however, Cases 21–CA–
29995 and 21–CA–30003 are independent of the instant case
and I shall not herein direct or find what has been found pre-
viously. I have ruled that the aspects of the instant complaint
that repeat allegations in Cases 21–CA–29995 and 21–CA–
30003 or that would be properly part of the compliance stage
of that case will not be found violative herein. And, to the
extent such theories are raised anew herein, they will be dis-
missed.
Given that holding, the General Counsel’s argued obliga-
tion of Respondent to restore the status quo ante with respect
to Williamson, Nunez, and Taylor may not rely on the obli-
gations declared in Cases 21–CA–29995 and 21–CA–
30003—those obligations will be determined and applied in
that case independent of the instant case. Nor may the Gen-
eral Counsel rely on the Federal court’s order, quoted above,
to impose such an obligation even though the record suggests
that order was the basis for the reinstatement of the three
employees at issue herein and others. That is so because the
Federal district court’s order does not create rights or obliga-
tions enforced by administrative law judges under the Act.
Lacking these two bases for arguing in the instant case
that Respondent was obligated to restore the status quo ante
to Williamson, Nunez, and Taylor, and no other basis being
arguable on this record, the General Counsel’s theory that
Respondent’s terminations were illegal as part of an illegal
application of working conditions—insofar as the matter is
independent of the violations found in Cases 21–CA–29995
and 21–CA–30003 must fail. I shall therefore dismiss the
discharge allegations respecting Williamson, Taylor, and
Nunez.
In essence what I have determined in dismissing the com-
plaint in its entirety is that the matters in issue are fully and
properly covered in the independent proceeding in Cases 21–
CA–29995 and 21–CA–30003. Respondent has been found to
have illegally failed to hire the three individuals in contest
in April 1994 in Cases 21–CA–29995 and 21–CA–30003,
and has also been found to have failed to recognize and bar-
gain with the Unions and to have failed to restore the status
quo ante respecting those employees. The record suggests
that Respondent has simply continued to refuse to change
those working conditions.
Given all the above, it is not necessary to find that Re-
spondent’s continuing failures under Section 8(a)(5) of the
Act are new violations. There is nothing that could be di-
rected herein that has not been directed in the Order in Cases
21–CA–29995 and 21–CA–30003. Respecting the hire and
virtually immediate discharge of the three former Maersk
employees at issue, the Order in Cases 21–CA–29995 and
21–CA–30003 directs they be employed under status quo
ante conditions. My findings indicate I believe the question
of whether Respondent properly met the terms of the earlier
Order or whether the conduct of these individuals precludes
the necessity of Respondent now offering them employment
should be litigated as part of the compliance stage of Cases
21–CA–29995 and 21–CA–30003 and not as a separate, free
standing unfair labor practice complaint. If Respondent’s
conduct was improper, I believe the consequences will be
properly adjusted in that compliance stage and not in a new
unfair labor practice finding and remedial Order. More sim-
ply put, I have dismissed the complaint in this case because
I believe it adds nothing to what has been found or may be
resolved in the compliance stage of Cases 21–CA–29995 and
21–CA–30003.
It may be that I have discretion to, in effect, repeat find-
ings made in Cases 21–CA–29995 and 21–CA–30003 and
sustain the General Counsel’s complaint in the instant case.
If that is so, I specifically exercise my discretion not to do
so, but rather reaffirm the result reached above. This is so
because it seems to me to be bad policy to put into a second,
independent unfair labor practice decision findings, conclu-
sions, and an order that contribute nothing to remedying the
situation litigated in the earlier case or within the scope of
the earlier cases’ compliance procedures, but which decision
is totally dependent on that earlier case for its validity. If all
the unfair labor practices and compliance matters respecting
the three individuals and Respondent’s obligations under
Section 8(a)(5) of the Act are dealt with exclusively in Cases
21–CA–29995 and 21–CA–30003, any modification in the
holding by reviewing authority resolves the entire matter. If
the matters are needlessly split between two independent
cases, the consequences of any modification by reviewing
authority of the Cases 21–CA–29995 and 21–CA–30003 will
not be immediately addressed by that authority and addi-
tional actions will have to be taken by the parties or review-
ing authority to bring the two cases into harmony. Far better
in my judgment, when no substantive harm or procedural im-
pediment exists, to keep the entire controversy in one pro-
ceeding. Given this view, even were it possible to, in effect,
split the remedial Order directed to Respondent into two pro-
ceedings, I would decline to do so.
3. Summary of findings respecting complaint
allegations
I have found that the instant complaint, to the extent it
simply recapitulates allegations previously sustained in the
decision in Cases 21–CA–29995 and 21–CA–30003, is re-
dundant and unnecessary. Those duplicative allegations have
been dismissed on that ground. Similarly, I have found that
the allegations of violations of Section 8(a)(5) and (1) of the
Act respecting the events occurring after April 1, 1994—in-
cluding the circumstances of the hiring of the three individ-
uals in questions herein—are sufficiently covered by the De-
1033NEW BREED LEASING CORP.
5 In an earlier case, I deferred reinstatement issues arising in the
context of employer actions taken pursuant to a Federal district court
order in an action brought under Sec. 10(j) of the Act to the compli-
ance stage of the proceeding. The Board did not defer the issue, but
rather decided the question as part of its decision on exceptions to
my decision. Honda of Hayward, 307 NLRB 340 (1992). It is pos-
sible that the Board may wish to reconsolidate the instant case with
that in Cases 21–CA–29995 and 21–CA–30003 and address the
compliance issues discussed above. In that event these conditional
findings may alleviate any need for a remand for further findings of
fact.
cision and Order in Cases 21–CA–29995 and 21–CA–30003
and are properly dismissed.
Respecting the discharge allegations contending violations
of Section 8(a)(3), (5), and (1) of the Act, I have found that
Respondent did not discharge the three individuals out of
antiunion or antiprotected activity animus. I have also found
that the General Counsel’s theory of a violation in the instant
case, unlike the compliance stage of the decision in Cases
21–CA–29995 and 21–CA–30003, may not assume, predi-
cated on the findings in that case, that Respondent was obli-
gated to establish the status quo ante respecting unit working
conditions and that, having failed to do so, could not dis-
charge employees for refusing to comply with the new work-
ing conditions. Having made this finding, I further found that
there is no evidence that Respondent terminated the three in
violation of the Act. I therefore dismissed the discharge alle-
gations of the complaint.
IV. FURTHER FINDINGS RESPECTING THE DISCHARGES
The procedural development of this case in respect to the
initial litigation of Cases 21–CA–29995 and 21–CA–30003,
the subsequent consolidation of the instant case, the issuance
of a decision in Cases 21–CA–29995 and 21–CA–30003 and,
finally, a decision in the instant case is unusual. The case is
also unusual because of the existence of a judicial order, the
parties dealing with that order and the reinstatements that
were generated by it.
I have ruled that the instant case must be treated as sepa-
rate and apart from the decision in Cases 21–CA–29995 and
21–CA–30003 and that the violations found therein will not
be simply repeated. I extended that distinction to matters that
are in my view a proper part of the compliance stage of
Cases 21–CA–29995 and 21–CA–30003. Thus, I have dealt
with the discharges of Williamson, Nunez, and Taylor only
as a separate, independent, free standing violations of the Act
and not as reinstatement issues as would be handled in the
compliance stage of Cases 21–CA–29995 and 21–CA–30003.
In that context I have found no violations of the Act in Re-
spondent’s termination of the three.
Although I hope I have made clear the distinctions de-
scribed above, in order to avoid misunderstandings of the
parties respecting how the events should be viewed in the
compliance stage of Cases 21–CA–29995 and 21–CA–30003,
I make the following further conditional findings in that
compliance context and not as part of my analysis of the un-
fair labor practice complaint allegations, above.5
A. First conditional compliance finding in Cases 21–
CA–29995 and 21–CA–30003
As a compliance matter in Cases 21–CA–29995 and 21–
CA–30003 Respondent was obligated to offer Maersk unit
employees reinstatement to positions to which Maersk terms
and conditions of employment were applied. These condi-
tions include the existing jurisdictional and other work rules.
Respondent admittedly did not do so regarding Nunez,
Williamson, and Taylor and no suggestion was made or
could be supported on this record that the Union or the em-
ployees waived their rights to obtain the benefits of that Or-
der’s provision. Accordingly, I find that Respondent did not
offer reinstatement as required by the Order in Cases 21–
CA–29995 and 21–CA–30003 to Williamson, Nunez, and
Taylor in September and October 1994.
B. Second conditional compliance finding in
Cases 21–CA–29995 and 21–CA–30003
Further, I find as a compliance matter in Cases 21–CA–
29995 and 21–CA–30003 that in as much as the Union,
Williamson, Taylor, and Nunez all believed that, consistent
with the court’s order, Respondent was in fact going to apply
the status quo ante to the positions accepted by Williamson,
Taylor, and Nunez, that a fundamental mutual mistake oc-
curred in the abortive employment relationships created when
Respondent hired Williamson, Nunez, and Taylor in Septem-
ber and October 1994 but did not in fact restore the status
quo ante as they expected. I find that those employment rela-
tionships, in essence, ended as a result of that misunderstand-
ing between the parties and may be regarded for purposes of
evaluating Respondent’s subsequent obligations to
Williamson, Nunez, and Taylor, as voluntary quits by the
three. In effect I find that their conduct in refusing to con-
form to Respondent’s new working conditions—which
prompted their discharge—as justified and should not be
used against them to deny them the continuing right to be
offered employment as directed by the decision in Cases 21–
CA–29995 and 21–CA–30003.
C. Summary of additional findings
Having dismissed the complaint in its entirety in part be-
cause portions were already established in the decision in
Cases 21–CA–29995 and 21–CA–30003 or properly part of
the compliance stage of that proceeding, I made certain fur-
ther findings respecting that compliance stage so as to avoid
the possibility that the unfair labor practice findings in the
instant case would be misinterpreted or misapplied in the
compliance stage of Cases 21–CA–29995 and 21–CA–30003
or that the Board would consolidate the instant case with
Cases 21–CA–29995 and 21–CA–30003 and, desiring to ad-
dress the compliance issue at that stage, remand the cases for
further findings.
Addressing the implications of the discharges of
Williamson, Taylor, and Nunez in the instant case on their
rights to reinstatement and backpay in the compliance stage
of Cases 21–CA–29995 and 21–CA–30003, I, in effect, de-
clared ‘‘no harm, no foul.’’ Thus, I found the hire and dis-
charge of Williamson, Nunez, and Taylor in September 1994
was the result of a mutual mistake respecting the terms and
conditions of employment that would apply to the three such
that their discharges should be held equivalent to justifiable
quits that would not detract from or constitute a waiver of
their rights to any and all relief they would otherwise be en-
titled to under the decision in Cases 21–CA–29995 and 21–
CA–30003.
1034 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be waived for
all purposes.
On the basis of the above findings of fact and on the en-
tire record, I make the following
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 Unions are, and each of them is, labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. Respondent did not violate the Act as alleged in the
complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The complaint shall be and it hereby is dismissed.