Planned Building Services

National Labor Relations Board - Board Decisions

Sep 11, 1995

318 N.L.R.B. 1049 (N.L.R.B. 1995)

1049
318 NLRB No. 107
PLANNED BUILDING SERVICES
1 Local 912 was also a respondent in the instant case but did not
file exceptions to the judge’s decision.
2 The Respondent has filed a motion to reopen the record to re-
ceive documents involving a decertification petition in Case 2–RD–
1260. The General Counsel opposes the Respondent’s motion, but in
the alternative, requests that the Board receive an additional piece
of correspondence addressed from Region 2 to the Respondent. We
grant the motion to reopen the record, and we take administrative
notice of the documents and correspondence offered by both the Re-
spondent and the General Counsel concerning Case 2–RD–1260.
3 209 NLRB 194 (1974), enfd. on other grounds 529 F.2d 516 (4th
Cir. 1975).
4 Our finding does not affect the judge’s conclusions that the Re-
spondent violated the Act by failing and refusing to recognize and
bargain with Local 32B-32J and by recognizing and executing a col-
lective-bargaining agreement with Local 912, and we adopt those
conclusions in their entirety.
5 We agree with the judge that it is appropriate to order that the
Respondent recognize and bargain with Local 32B-32J, despite the
fact that objections and unfair labor practice charges regarding an
earlier decertification election were pending at the time the Respond-
ent assumed operations. See Dresser Industries, 264 NLRB 1088
(1982). See also Weather Shield Mfg., 292 NLRB 1, 4 fn. 18 (1992).
We note that the Respondent cites NLRB v. New Associates, 35 F.3d
828 (3d Cir. 1994), for the proposition that an employer has no obli-
gation to bargain while a decertification petition is pending unless
the Board discloses the number of employees who supported the de-
certification petition, and such number is less than a majority. In
New Associates, the Third Circuit held that it would not follow the
Board’s decision in Dresser in those cases where the Board refuses
to disclose to the employer, at the employer’s request, the percentage
of employees supporting the decertification petition. In this case,
there is no evidence that the Respondent, prior to refusing and fail-
ing to recognize and bargain with Local 32B-32J, requested, and was
refused, information regarding the percentage of employees support-
ing the decertification petition in Case 2–RD–1260. Therefore, even
under the Third Circuit’s standard, the Respondent was obligated to
bargain with Local 32B-32J. The judge’s recommended Order inad-
vertently omitted a cease-and-desist provision for this issue. We have
modified the Order to include this provision.
Planned Building Services, Inc. and Local 32B-32J,
Service Employees International Union, AFL–
CIO and Local 912, United Commercial and
Industrial Workers Union, Party in Interest
Local 912, United Commercial and Industrial
Workers Union and Local 32B-32J, Service
Employees International Union, AFL–-CIO and
Planned Building Services, Inc., Party in Inter-
est. Cases 2–CA–26215, 2–CA–26345, 2–CB–
14476, and 2–CB–14563
September 11, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On March 15, 1995, Administrative Law Judge Rob-
ert T. Snyder issued the attached decision. Planned
Building Services, Inc., the Respondent,1 filed excep-
tions and a supporting brief.2
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and brief and has decided to af-
firm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order
and to adopt the recommended Order as modified.
We adopt the judge’s conclusion that the Respond-
ent is a successor employer to Ferlin Service Industries
and that the Respondent therefore had a duty to recog-
nize and bargain with Local 32B-32J. Contrary to the
judge, however, we find that the Respondent was not
obligated to bargain with Local 32B-32J prior to set-
ting its initial terms and conditions of employment for
the employees.
As the judge found, the Respondent’s representatives
met with the employees for the first time on October
27, the day before the Respondent took over the main-
tenance functions at the four buildings involved in this
case. The Respondent’s representatives told the em-
ployees that if they wished to be employed by the Re-
spondent, they should fill out the applications being
distributed at the meeting and bring the completed ap-
plications back when they started work the next morn-
ing. The Respondent’s representatives then told the
employees that they would receive the same wages that
they received from Ferlin, but that the benefits would
not be the same.
Applying our recent decision in Canteen Co., 317
NLRB 1052 (1995), we find that the Respondent was
free to set the initial terms and conditions on which it
would hire Ferlin’s employees because the Respondent
made a lawful Spruce Up3 announcement. On October
27, during its very first contact with Ferlin’s employ-
ees, the Respondent both communicated its plan to re-
tain Ferlin’s employees and announced that its offer to
the employees was based on changed terms and condi-
tions of employment. As in Spruce Up, the Respondent
stated from the outset that it would be hiring the pred-
ecessor’s employees pursuant to new terms and, there-
fore, the Respondent was not a ‘‘perfectly clear’’ suc-
cessor that was obligated to consult with the Union
prior to setting initial terms and conditions of employ-
ment.4
Accordingly, we have modified the judge’s conclu-
sions of law, and recommended Order,5 the notice to
reflect our decision.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 6.
‘‘6. By failing and refusing since October 30, 1992,
to recognize and bargain with Local 32B-32J, SEIU as
the exclusive collective-bargaining representative of its
employees in the unit described in paragraph 3, above,
and since December 1, 1992, by applying the terms of
the collective-bargaining agreement it entered into with
Respondent Local 912 to employees in the unit, Re-
1050 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent Planned Building Services, Inc. has failed
and refused to bargain collectively and in good faith
with the exclusive collective-bargaining representative
of its employees and has thereby been engaging in un-
fair labor practices within the meaning of Section
8(a)(1) and (5) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that Planned Building Services, Inc., Fairfield,
New Jersey, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order as
modified.
1. Substitute the following for subparagraph A,1(c).
‘‘(c) Failing and refusing to recognize and bargain
with Local 32B-32J, Service Employees International
Union, AFL–CIO as the exclusive collective-bargain-
ing representative of the unit of building service em-
ployees.’’
2. Delete subparagraph A,2(b) and reletter the subse-
quent paragraphs.
3. Substitute the attached notice to employees for
that of the administrative law judge.
CHAIRMAN GOULD, dissenting in part.
Contrary to my colleagues, I would find, in agree-
ment with the judge, that the Respondent was obli-
gated to consult with Local 32B-32J prior to setting
the initial terms and conditions of employment for the
employees. As set forth in my concurrence in Canteen
Co., 317 NLRB 1052 (1995), I believe that the
Board’s decision in Spruce Up, 209 NLRB 194 (1974),
enfd. on other grounds 529 F.2d 516 (4th Cir. 1975),
represents a misreading of the Supreme Court’s deci-
sion in NLRB v. Burns International Security Services,
406 U.S. 272 (1972). The Supreme Court in Burns,
stated that the test for finding a ‘‘perfectly clear’’ suc-
cessor is whether ‘‘the new employer plans to retain
all of the employees in the unit.’’ Burns, 406 U.S. at
294–295. It is clear from the facts of this case that the
Respondent intended to hire its work force from the
group of employees working for the predecessor em-
ployer. In that regard, I note that the Respondent wait-
ed until the day before it assumed operations to ap-
proach anyone about working at the four buildings at
issue and that the Respondent merely required the
‘‘prospective’’ employees to turn in completed applica-
tions the next morning when they reported for work.
I agree with the judge that the Respondent ‘‘had deter-
mined to hire the complement of Ferlin maintenance
employees on October 27,’’ and that the Respondent,
therefore, was obligated to bargain with Local 32B-32J
prior to setting its initial terms and conditions of em-
ployment and violated Section 8(a)(5) and (1) on Octo-
ber 28 by unilaterally making changes in the existing
terms and conditions of employment.
I agree with my colleagues’ resolution of all of the
other issues in this case.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT assist or contribute support to Local
912, United Commercial and Industrial Workers Union
or any other labor organization, by recognizing and
bargaining for the purpose of collective argaining with
it as the exclusive collective-bargaining representative
of our employees unless and until it had been certified
as such by a representative by the National Labor Re-
lations Board.
WE WILL NOT maintain or give effect to our collec-
tive-bargaining agreement with Local 912 effective
December 1, 1992, or any extension, or modification
provided, however, that nothing here shall require the
withdrawal or elimination or any wage increase or
other benefits, terms, or conditions of employment
more favorable to employees which may have been es-
tablished pursuant to such agreement.
WE WILL NOT discriminate against employees by en-
couraging membership in Local 912 or any other labor
organization by discharging employees because they
fail to sign dues-deduction authorization cards, or be-
cause they fail to pay dues under a union-security
clause included in a collective-bargaining agreement
with Local 912 or any other labor organization entered
into based on recognition accorded at a time when
such labor organization did not represent an uncoerced
majority of our employees in an appropriate unit.
WE WILL NOT deduct union dues and fees from the
wages of employees for Local 912 or any other labor
organization under a dues-checkoff clause included in
a bargaining agreement with Local 912 or any other
labor organization entered into based on recognition
accorded at a time when such labor organization did
not represent an uncoerced majority of our employees
in an appropriate unit.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you in Section 7 of the Act.
WE WILL recognize and, on request, bargain with
Local 32B-32J, Service Employees International
Union, AFL–CIO as the exclusive bargaining rep-
resentative of our employees in the following appro-
priate unit concerning their terms and conditions of
1051PLANNED BUILDING SERVICES
1 All dates refer to 1992 unless otherwise indicated.
employment and, if an understanding is reached, em-
body it in a signed agreement:
All building service employees employed at A.K.
Houses (112–126 East 128th Street, New York,
N.Y.); 1775 Houses (107–129 East 126th Street
and 290–2 Lexington Avenue, New York, N.Y.);
108 Tres Unidos (1680 Madison Avenue and 22
East 112th Street, New York, N.Y.); and M.S.
Houses (107–123 East 129th Street, New York,
N.Y.), excluding all office clerical employees, and
guards, professional employees and supervisors as
defined in the Act.
WE WILL jointly and severally with Local 912,
United Commercial and Industrial Workers Union re-
imburse all past and present employees for all initi-
ation fees and dues paid by such employees to Local
912, United Commercial and Industrial Workers
Union, pursuant to our collective-bargaining agreement
with Local 912, United Commercial and Industrial
Workers Union, effective December 1, 1992, plus in-
terest.
WE WILL jointly and severally with Local 912,
United Commercial and Industrial Workers Union
make whole Jeffrey Bourne and Frank Graham for any
loss of earnings and benefits they may have suffered
by reason of our unlawful discrimination against them,
plus interest.
PLANNED BUILDING SERVICES, INC.
Richard L. DeSteno, Esq., for the General Counsel.
Jed L. Marcus, Esq. and Wanda L. Ellert, Esq. (Grotta,
Glassman & Hoffman, P.A.), for the Respondent Em-
ployer.
Bianca M. Worden, Esq. (McCarthy, McCarthy & DeMartin,
P.C.), for the Respondent Union.
Ira S. Sturm, Esq. (Manning, Raab, Dealy & Sturm, Esqs.),
for the Charging Union.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on February 7 to 10, 1994, in New
York, New York.
The consolidated complaint alleges that Planned Building
Services, Inc. (PBS) refused to recognize and bargain in
good faith with Local 32-BJ; made unilateral changes in
terms and conditions of employment of unit employees;
granted recognition to, and entered a collective-bargaining
agreement with, Local 912, United Commercial and Indus-
trial Workers Union (Local 912) at a time when Local 912
did not represent an uncoerced majority of PBS’ employees;
deducted union dues for Local 912 pursuant to union-security
and dues-checkoff clauses contained in the agreement; and
discharged two named employees because they refused to
sign dues-checkoff authorization cards for Local 912, and/or
because they refused to pay dues to Local 912 pursuant to
the alleged unlawful union-security clause, in violation of
Section 8(a)(5), (2), (3), and (1) of the Act. The consolidated
complaint also alleges that Local 912 coerced employees into
signing its authorization cards; accepted recognition from,
and entered the agreement with, PBS at a time when it did
not represent an uncoerced majority of PBS’ employees; ac-
cepted dues from employees pursuant to union-security and
dues-deduction clauses contained in the agreement; and
caused PBS to discharge the two employees because they re-
fused to sign dues-checkoff authorizations and/or because
they refused to pay dues to Local 912 pursuant to an unlaw-
ful union-security clause, in violation of Section 8(b)(1)(A)
and (2) of the Act.
All parties were provided full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Counsel for the
General Counsel and counsel for the Respondent PBS have
each filed posttrial briefs and they have been carefully con-
sidered. On the entire record in the case, including my obser-
vation of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent PBS, a domestic corporation, with an office
and place of business at 167 Fairfield Road, Fairfield, New
Jersey, has been engaged in the business of providing main-
tenance services for various residential apartment buildings
in New York and New Jersey, including residential apart-
ment buildings known as and located at the following ad-
dresses: A. K. Houses (112–126 East 128th Street, New
York, N.Y.); 1775 Houses (107–129 126th Street and 290–
2 Lexington Avenue, New York, N.Y.); Los Tres Unidos
(1680 Madison Avenue and 22 East 112th Street, New York,
N.Y.); and 22 East 112th Street, New York, N.Y.); and M.
S. Houses (107–123 East 129th Street, New York, N.Y.)
(collectively called Respondent PBS’ facilities or Manhattan
facilities). Annually, in the course and conduct of its above-
described business operations, Respondent PBS derives gross
revenues in excess of $500,000; purchases and receives at its
New York facilities products, goods, and materials valued in
excess of $5000; and performs services valued in excess of
$50,000 in States other than the State of New York. Re-
spondent PBS admits, and I find, that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. The Respondents admit, and I find that
Respondent Local 912 and Local 32-BJ are each a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Until October 28, 1992,1 and for a number of years prior
thereto, Ferlin Service Industries d/b/a Riverside Maintenance
Corp. (Ferlin) held the contract to supply maintenance serv-
ices to the residential apartment buildings comprising A. K.
Houses, 1775 Houses, Los Tres Unidos, and M. S. Houses
as well as to five other sets of buildings located at various
locations in the five boroughs of New York City, New Jer-
sey, and Long Island. Ferlin supplied doorman services as
1052 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 In his Decision and Direction of Election ordering the election,
the Regional Director excluded from the bargaining unit for purposes
of the election those employees in Bronx facilities who are rep-
resented by Local 32E, SEIU, among other employees, who were
also excluded from the current collective-bargaining agreement. One
of the Bronx locations is known as Woodycrest.
well at some of these buildings. The total complement of
building service employees at these nine sets of buildings in
October 1991 was approximately 163. They comprised a bar-
gaining unit represented by Local 32B. The most recent col-
lective-bargaining agreement covering them between Ferlin
and Local 32B ran for 2 years from January 1, 1987, to De-
cember 31, 1989, and contained an automatic renewal clause,
continuing the agreement in full force and effect until a suc-
cessor agreement shall have been executed.
On October 17, 1991, an election was conducted pursuant
to a decertification petition filed with the Region by a Ferlin
unit employee in Case 2–RD–1260. Participating in the elec-
tion were Locals 32-BJ and 912. A revised tally of ballots
shows Local 32B received 71 votes, and Local 912 received
54.2 Local 912’s filing of an unfair labor practice charge in
Case 2–CA–25365 and timely objections to the conduct of
the election resulted in issuance of an order consolidating a
complaint and objections for hearing before Administrative
Law Judge Howard H. Edelman. In a decision he issued on
February 24, 1994, Judge Edelman concluded that Respond-
ent Ferlin had threatened its employees with discharge and
unspecified reprisals if they continued their activities on be-
half of Local 912, in violation of Section 8(a)(1) of the Act
and recommended that this conduct, comprising an objection
filed by Local 912, warranted setting aside the election. By
Order and Direction of Second Election, which issued on
April 12, 1994, after initially noting that no exceptions had
been filed with it to Judge Edelman’s decision, Executive
Secretary John C. Truesdale, by direction of the Board,
adopted the findings and conclusions of Judge Edelman, or-
dered Respondent Ferlin to cease and desist its unlawful con-
duct in accordance with the judge’s recommended Order, fur-
ther ordered the Union’s objection sustained and the election
set aside, and directed a second election in the Ferlin build-
ing service employees bargaining unit. That election has not
been conducted. Well prior thereto, on October 28, 1992,
PBS succeeded Ferlin as the contractor supplying building
maintenance functions at the four Manhattan facilities, as
well at the Woodycrest building located in the Bronx and
separately represented by Local 32E, SEIU.
B. The Facts Regarding PBS’s Status as Successor
Employer to Ferlin
There is no dispute that on October 28, when PBS took
over the building maintenance function at the 4 Manhattan
facilities, all of its employees, 18 in number, had until the
prior day been employees of Ferlin at the same locations.
Thus, at a meeting called of the Ferlin employees on October
27, by the new management, these employees were offered
jobs, provided employment applications, and told to bring
them in and be prepared to start work the next day. All of
them did so, were put to work by PBS, and constituted all
of the building service employees employed by PBS.
Doorman service had been provided by Ferlin under its
service agreement at A. K. Houses and 1775 Houses, but not
at Los Tres Unidos or M. S. Houses which employed an out-
side security service. The doorman at A. K. and 1775 on
Ferlin’s final payroll totalled 17, but it included 4 standby
individuals who were called in to substitute for absent or va-
cationing employees as needed, were not on a regular sched-
ule, and were thus excluded from the Ferlin-Local 32B bar-
gaining unit as not being within the group of full-time or
regular part-time employees covered under that agreement ei-
ther by its terms, the practices of the parties (Tr. 74) or the
unit description appearing in the Regional Director’s Direc-
tion of Election in Case 2–RD–1260.
As for PBS, it employed none of the doorman when it
took over the building maintenance services. The owner’s
managing agent arranged with Argo Security Services to sup-
ply security personnel for the PBS facilities, replacing the
previously employed doormen.
The facts show that in addition to PBS hiring and thus re-
taining without any break in service the prior maintenance
staff, including the superintendents for each of the four sets
of buildings, employee building assignments, shifts and re-
sponsibilities, the equipment and tools, including mops,
buckets, and vacuum cleaners, all remained the same. Re-
spondent PBS concedes as much, but nonetheless disputes its
alleged status as successor because of the change in scope
and composition of the bargaining unit, with its reduction
from nine to four sets of buildings and the elimination of the
doormen. This issue shall be dealt with, infra.
C. Local 32-BJ’s Demand for Recognition
Rejected by PBS
Kevin McCulloch, assistant to the president of Local 32-
BJ, testified that early in September he heard from a third
party that the maintenance contracts in certain Ferlin build-
ings, the Manhattan facilities, had expired and were out for
bid. Since Local 32-BJ had a current contract and ongoing
dispute with Ferlin, the current maintenance contractor, he
sought to learn the facts regarding the identity of the succes-
sor and to arrange for current employees to apply for em-
ployment, but was unsuccessful until October 30, when he
learned that PBS had taken over and an Arthur Birnbaum
was handling the buildings for them.
McCulloch reached Birnbaum on October 30, identified
himself and his affiliation, told him Local 32-BJ had recently
won an election and was the representative of the employees
in the four buildings in question which Birnbaum confirmed
he had taken over. McCulloch said Local 32-BJ represented
the workers and wanted to negotiate a contract. Birnbaum
explained that PBS had commenced working at the building
on October 28, and shortly afterward an individual from
Local 912 had come to him claiming to represent the work-
ers. After calling his boss, Michael Francis, he was instructed
to recognize Local 912. McCulloch also learned that the rec-
ognition had been placed in writing.
McCulloch then asked Birnbaum not to sign a contract,
because Local 32-BJ represented the people and at minimum,
the NLRB should decide who would represent the workers.
McCulloch subsequently sent a mailgram on October 30 con-
firming the conversation. In it McCulloch made written re-
quests for recognition based on the hiring of the former em-
ployees and that Birnbaum contact him to commence nego-
tiations. By letter dated November 4, which McCulloch did
not receive until a week later because it had been mis-ad-
1053PLANNED BUILDING SERVICES
dressed, Birnbaum represented that PBS had voluntarily rec-
ognized Local 912’s collective-bargaining agent for the ref-
erenced buildings on presentation of union authorization
cards signed by a majority of their employees after com-
mencing operations. As a consequence, PBS never recog-
nized Local 32-BJ as bargaining representative for the em-
ployees in question.
During his cross-examination McCulloch acknowledged
that when he spoke to Birnbaum he had asked for recogni-
tion for the building service employees in the subject build-
ings and did not know at the time that the doormen had not
been hired.
D. The Facts Regarding Local 912’s Employee
Solicitations, Its Recognition by PBS and Entry into
and Enforcement of a Bargaining Agreement with PBS
Counsel for the General Counsel produced a number of
employee witnesses who testified about their interaction with
Local 912.
Jared McNeil testified that he began work for Ferlin at A.
R. Houses as a handyman in February 1988. He was then
represented by Local 32B. In September or early October, he
was among 15 or 16 employees at the 4 previously described
facilities who gathered in A. K.’s community room and were
addressed by a Vinny, later identified as Vincent Sombrero,
president of Local 966, IBT. Vinny told them that the new
company that was coming in is not recognizing 32-BJ and
‘‘if we wanted to keep our jobs, we got to sign these cards
right now.’’ Cards were distributed, McNeil and other em-
ployees signed them and returned them to Vinny. The Union
named on the card was Local 912. McNeil signed his card
on October 1.
Sometime before the takeover by PBS, another meeting of
employees was held at the same location, this time addressed
by Randy Tucker, president of Local 912. Tucker solicited
employee demands for inclusion in a contract with the new
employer. Employees told him what they wanted for sick
time, sick days, working hours, breaktime, and vacation. He
also told them that ‘‘Local 32-BJ is not being recognized by
this company and if you want to keep your jobs, sign these
cards.’’ Everybody present signed the cards and Tucker took
them away.
On October 28, Art, later identified as Arthur Birnbaum,
regional vice president for PBS, gathered the employees and
told them that PBS is now taking over the building and they
recognize 912 as our union and he said everything we have
now is going to stay the same. Two other persons McNeil
could not identify were present with Art. McNeil later placed
Tucker as being present.
On cross-examination, McNeil admitted he had been fired
by PBS for absenteeism. His father, Elijah McNeil, had been
a security employee for Ferlin, and is now an employee of
PBS. When asked if Vinny at the meeting at which he spoke
to employees indicated that if you didn’t sign the card, you
would not become employed by PBS, McNeil said ‘‘In a
way he did.’’ At the time, McNeil acknowledged, there was
no indication as to the identity of the new employer. When
now pressed as to why he signed the Local 912 card, McNeil
responded he did so to keep his job. When then asked if he
did it because of Vinny’s threat McNeil replied, inter alia,
‘‘if you want to call it a threat, call it a threat; I call it an
ultimatum. If I don’t sign this card, I will be without a job,
I’m going to sign this card.’’
McNeil also now agreed that the meeting with Arthur
Birnbaum was held on October 27 and not October 28, and
that he received an employment application then and was
told if he wanted a job to bring the application back the next
day. But McNeil disputed that Birnbaum told the assembled
Ferlin employees that other than wages, the benefits would
not be the same. McNeil insisted that Birnbaum said all
things would be the same.
McNeil later acknowledged signing an employment appli-
cation, but could not recall receiving one, and was unsure if
there was a meeting on October 27 where he received it. At
the meeting, McNeil agreed Birnbaum had two other people
with him and that it was held in the 1775 House community
room.
As to the meeting with Tucker, McNeil now said it was
held on October 27 and that he had initially reported to
DeSteno of the Region, that he had no recollection of what,
if anything Tucker said to the employees about keeping their
jobs. (Tr. 107.) Under further cross-examination however,
McNeil repeated what he had earlier testified to on direct,
that Tucker told the employees ‘‘32-BJ is not recognizing
you, if you want to keep your jobs, sign this card.’’ He reit-
erated that nobody told him he was going to be fired. (Tr.
111.) Under cross-examination by Local 912 counsel,
McNeil testified he had first learned of Vinny’s affiliation
with Local 966 from a fellow employee, Esau Champagne,
since deceased, who told him a guy from the Teamsters
Union is going to try to get another union in, something to
better ourselves.
McNeil remained firm that Vinny told the employees if
you want to keep your jobs, sign these cards. But McNeil
denied that Tucker was present at this meeting.
Another employee, Frank Albert Graham, testified that he,
too, had been employed by Ferlin as a porter at 1775 Houses
and had attended a meeting on October 27 addressed by Art
who told the 15 to 20 assembled employees that he was from
PBS which was taking over. Art told them nobody is going
to lose their job, everything remains the same, and PBS is
recognizing 912.
At a later meeting the same day, at A. K. Houses, Randy
Tucker told the employees we’re going to get a nice contract,
‘‘we’re going to negotiate and see what happens.’’ Tucker
distributed payroll deduction and signup cards for Local 912.
In mid-January, he and fellow employee Jeffrey Bourne
went to the office at A. K. Houses, where they met Building
Superintendent Sam Rodriguez and Randy Tucker. The two
employees asked for and received payroll deduction and
medical cards. Neither signed them. Tucker said he would be
back the following day to pick them up, but he did not re-
turn.
On Tuesday, February 2, 1993, at around 11:30 a.m. he
and Bourne were called to the office at A. K. Houses. When
they arrived Superintendent Sam Rodriguez, Williams, an-
other superintendent, and Bess, the 912 shop steward, were
present. Rodriguez said he just got off the phone with Art
and that 912 ‘‘didn’t recognize us because we didn’t fill out
the payroll deduction cards, that we had to punch our cards
and go home.’’ Abraham and Bourne told Rodriguez to call
Randy and find out what was going on; ‘‘they didn’t refuse
to pay dues, they just didn’t want to fill out no [sic] cards.’’
1054 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The employees went with Rodriguez to a telephone out-
side the office where Rodriguez attempted, without success,
to reach Tucker whose telephone had a recorded message.
Graham and Bourne then left work at 12:30 p.m. although
their normal quitting time was 4 p.m. Graham was scheduled
to work the following day Wednesday, Thursday, and Sun-
day. He did not. On Sunday, February 7, he received a call
from Bourne who said he had talked to the shop steward and
Randy said to go back to work on Monday, February 8.
He and Bourne returned to work on February 8. On Feb-
ruary 9, Steward Bess told Graham it was all right to pay
his dues through the mail, but he had 5 days to pay or be
terminated. Graham subsequently forwarded a $60 money
order to Local 912, covering 2 months’ dues. Previously,
Graham had informed Bess that he was willing to pay dues
but by money order or check. On one prior occasion at a
meeting attended by Bess, Tucker said its the law, you have
to fill out the payroll deduction card. When Bess asked what
law, Tucker said he was not sure, but would get back to him
about it.
Graham never turned in a signed, dues-payroll deduction
card to Local 912, although he had received a number of
them from Tucker and had even signed, but not dated, a few
of them.
Respondent produced a document dated May 3, 1993, and
admittedly signed by Graham and PBS Supervisor Mark Wil-
son, in which Graham agreed, in consideration of receiving
3-1/2-days’ backpay, to relinquish any claims against PBS.
Graham denied ever receiving any backpay from PBS, PBS
failed to produce any canceled check or other evidence of
payment, and Respondent counsel denied the document was
offered to prove that Graham compromised his claim, but
only to show Graham was not a credible witness. The docu-
ment, although received in evidence, fails to undermine Gra-
ham’s credibility.
Another employee, Ronald McKinney, testified that after
having worked since 1988 for Ferlin as a porter at M. S.
Houses and then A. K. Houses, and then having continued
as an employee for PBS, he was fired in December. He re-
turned to the building in January 1993 to discuss his dis-
charge with Randy Tucker. After a private meeting with
Tucker, during which Tucker began a little argument, he at-
tended a meeting Tucker held with 10 or more employees
from PBS’ facilities at A. K. Houses. The contract terms re-
garding sick days was being discussed when McKinney com-
plained that Tucker owed him some sick time and also dis-
cussed his dismissal. At this point Tucker stated that any-
body who signed a card with 32B and J would lose their job.
Apparently the argument between McKinney and Tucker
continued at the meeting, with McKinney saying his dis-
charge was unfair and Tucker agreeing but failing to indicate
he would or could do anything about it.
During his cross-examination, McKinney stated that
among other reasons for his discharge he had been charged
with being late. But he also testified that at his January meet-
ing with Tucker, also attended by Sam Rodriguez, Rodriguez
said that if PBS rehired him, he, Rodriguez would leave.
Rodriguez also told Randy that he would show a way to real-
ly get rid of McKinney. It was McKinney’s view that Tucker
didn’t file a grievance for him because of Rodriguez’ posi-
tion.
On cross-examination, McKinney also expanded on the
discussion Tucker had at the meeting with the 10 employees.
McNeil, Graham, and Bourne were among the employees
present. They were complaining about why the union dues
had to be automatically deducted from their paycheck when
they could pay it quarterly as they had done when they were
members of Local 32-BJ. At one point Frank Graham said
they wanted to sign for 32B and J, they didn’t want any de-
ductions out of their check automatically. Bess, also present,
objected that the deduction from pay was unfair. It was in
the context of this discussion that Tucker said, ‘‘If you sign
Local 32-BJ cards you can lose your job, because they don’t
want you in the building.’’ Tucker also said the Company
had to deduct the dues, by law it was automatic, but when
the employees objected he said he’d look into it.
A subsequent unfair labor practice charge McKinney filed
against PBS and Local 912 growing out of his discharge was
dismissed for lack of merit. Under further questioning
McKinney acknowledged that because of illness he had only
worked about 30 days when he was fired, and was thus still
a probationary employee excluded from the grievance article.
McKinney also explained that he, along with all employ-
ees present, signed Local 912 authorization or membership
cards at a meeting Tucker held with employees in November,
just before Thanksgiving.
Jeffrey Bourne testified that he had been a porter who
began for Ferlin in 1989. He was among the 18 maintenance
workers who became PBS employees on October 28. But be-
fore that, on October 1, Vinny held a meeting with approxi-
mately 15 employees from the facilities at A. K. Houses
Community Center. Vinny identified himself, said he was
from Local 912, and told the employees that ‘‘the new com-
pany coming in is not going to recognize 32B and J. They
are going to recognize 912. And if you don’t sign this card
you’ll be terminated.’’ Vinny distributed Local 912 cards at
this meeting, some employees signed them, and returned
them to Vinny. Vinny also said a new company, of Hasidic
Jews, will fire you and get cheaper labor if you don’t join
the Union.
According to Bourne, early on October 28 Art spoke to
the employees. He said they had a new company, we are tak-
ing over, and everything remains the same. The new union
will be Local 912. Later on October 28, at noon, Vinny ad-
dressed 15 employees at the A. K. Houses Community Cen-
ter. He said, ‘‘If you don’t sign with Local 912 PBS will not
recognize you as a member. You’ll be fired.’’ Local 912
cards were also distributed and most signed. Tucker was
present and also spoke. He told employees we are going to
get you a better contract than 32-BJ.
On or about December 10, in the A. K. Community room
Sam Rodriguez distributed payroll-deduction cards for Local
912 to about 15 assembled employees. Randy Tucker was
also present. Rodriguez said, ‘‘If you don’t sign this card the
Union ain’t [sic] going to recognize you and the Company.
You’ll be fired.’’ Bourne never signed such a card.
Again, on January 28, 1993, Bourne, Rodriguez and Tuck-
er were present in Rodriguez’ office off of the A. K. Houses
Community room when Tucker informed Bourne that ‘‘this
is the law, you must sign the card, you can’t pay yourself.’’
Bourne replied he had the right to pay his own union dues
if he wanted by money order and ‘‘you give me a receipt.’’
Tucker replied, ‘‘No, this is the law.’’ (Tr. 191.)
1055PLANNED BUILDING SERVICES
On February 2, 1993, Bourne and Graham were called to
Rodriguez’ office. Besides Rodriguez, others present were
Shop Steward Bess and Superintendent Daryl Williams.
Rodriguez said he just got off the phone with Art and Art
and Tucker just had a meeting about us. They said Bourne
and Graham are no longer members of the Union because
they did not sign a deductible card and they must be termi-
nated. Bourne responded, ‘‘Why didn’t Tucker come here
himself and tell me so we can talk and I pay him my own
union dues myself by money order.’’ Rodriguez said he
didn’t know why.
Bourne corroborates Graham that they asked Rodriguez to
call Tucker, who did so without success. Both employees left
work that day at about 12:30 p.m. Bourne was out on two
more workdays, Friday and Saturday. Like Graham, Bourne
returned to work on Monday, February 8, after Bess told
them to do so and gave them a deadline of the 10th of each
month to pay their union dues themselves by money order.
Between February 2 and 7 Bourne kept asking Rodriguez if
he ever reached Tucker. Rodriguez passed along a message
from Art that Bourne had to take it to the Union.
During his cross-examination by Respondent, PBS Counsel
Bourne agreed that his December 15 pretrial affidavit did not
contain any reference to Vinny mentioning Hasidic Jews or
employee terminations. Neither does it contain any reference
to Rodriguez’ December 10 company threat to fire Bourne
for not signing a payroll deduction card. A later affidavit of
Bourne’s describes Rodriguez as responding on January 28,
1993, to Bourne’s claim he pay the dues himself with the
statement, ‘‘suit yourself’’ or ‘‘that’s up to you.’’
When pressed to describe the union delegate who ad-
dressed employees on October 28, Bourne could not describe
the individual, nor could he distinguish between Vinny and
Randy Tucker, whether they were the same or different per-
sons.
During his redirect examinations by counsel for the Gen-
eral Counsel and Charging Union Counsel Bourne did clarify
that the employee meetings in early and late October for
Local 912 were held by Vinny, not Randy, and he did iden-
tify Randy Tucker who was present in the courtroom. Bourne
also was refreshed that in his affidavit he did describe Vinny
as telling employees at the October 1 meeting that if they
didn’t sign with Local 912 they won’t have a job with the
building and Local 32-BJ was not let back into the building.
These statements are consistent with his direct testimony.
After telling them he was from Local 912, Bourne now
added that Vinny also told employees that if they stayed in
Local 912 for 1 year they could then go over to Local 966
after a year.
A final employee witness called by the General Counsel,
Franklin Eastman, corroborated other employee witnesses re-
garding Vinny’s threatening statements made to employees at
the October 1 meeting. Eastman knew Vinny through a
friend who worked at 1990 Lexington Avenue where Local
966 Teamsters had a contract. Eastman estimated that 40 em-
ployees were present from the Manhattan facilities as well as
Woodycrest. Tucker was present but did not speak. By this
I understood Eastman to mean that Tucker did not address
the assembled persons.
On October 1, Vinny told them he knows who was con-
tractor for the buildings and who would be the new owners.
The buildings were bought by Hasidic Jews. He knew for a
fact they would not do any business with Local 32-BJ. If the
employees did not sign up with Local 912 they would be out
of a job. The Company would remove everybody that is
working there and bring in their own people. He said he
knew the cleaning company was from New Jersey, he has a
contract with them in New Jersey, and named them as
Planned Building Services. Vinny also handed out Local 912
authorization and dues-deduction cards and Eastman saw a
majority of the attendees sign them.
Bess asked a question about various funds and Eastman
himself asked what was going to happen to their seniority
and vacation time. Vinny assured them they were not going
to lose any of those things. Vinny added Local 32-B would
only collect their money and do nothing for them. PBS
would not negotiate with Local 32-BJ and if we were going
to go with Local 32-BJ we would be out of a job.
According to Eastman, Tucker held a meeting with the
PBS employees a few days after the takeover. Again, about
40 employees were present in the A. K. Community room.
Two other men were with him. Bourne asked about paying
dues. Tucker told him the dues had to come out of his pay-
check, he could not pay by money order. Eastman asked
about their health plan and legal fund. Tucker said they were
going to negotiate a better contract than the one that 32-BJ
would give them. He also said if they were seen speaking
with anyone from Local 32-BJ they could be suspended or
kicked out of the company. He also said that if they gave
statements to the Labor Board they will find out about it and
we can get into trouble for it. Tucker also handed out Local
912 cards, including payroll-deduction authorizations to em-
ployees who had missed the earlier meeting.
Eastman also attended a meeting held by Art when PBS
took over. He handed out employment applications and told
the employees the company recognized Local 912 as the new
union.
On or about January 27, 1993, Eastman was present when
Tucker spoke with Bourne and Graham in the lobby of
A. K. Houses. Bourne said he wanted 32-BJ and Tucker told
him ‘‘forget about 32-BJ, they are not going to come back
here and if you don’t sign the cards and if you don’t deal
with us you’ll be out of a job.’’
About a week or two later, Eastman was in Rodriguez’ of-
fice waiting to collect supplies to go back to M. S. Houses
when he heard Rodriguez tell Bourne and Graham he got a
call from the office in New Jersey and they said to punch
them out and they no longer work for PBS. Bourne later told
him he was going to the Labor Board.
During his cross-examination, Eastman testified that on
October 1 Vinny made clear that if the employees did not
sign with Local 912 they would be in trouble with PBS, the
maintenance company. A statement from Eastman’s pretrial
affidavit was also read into the record. In it, Eastman stated,
and reaffirmed at the trial, that Vinny told the employees ‘‘I
can guarantee you if you go to Local 32-BJ we would lose
our jobs because Local 32-B, 32-J does not care about the
employees. As all they care about is collecting their money.’’
It was at this meeting that Vinny introduced the employees
to Randy Tucker.
Eastman now agreed that he and other members of the
staff met with Art Birnbaum for the first time on the after-
noon of October 27, the day before PBS took over. Present
were also two other representatives from PBS, Willie
1056 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McDuffy and John Ganley. The employees were given em-
ployment applications and told that if they wanted to work
they should fill them out and return the next morning. No
union representatives were present.
Eastman recalled that while Art Birnbaum said he would
keep their wages the same, about the benefits ‘‘he said ev-
erything starts over new; we start over fresh that day.’’ East-
man also agreed that no one from PBS told employees they
would be fired for signing a card for Local 32-BJ or if they
didn’t sign for Local 912, or they would refuse to bargain
with 32-BJ. All of these threats came only from Local 912.
As for Vinny, Eastman did not see him back at the Manhat-
tan facilities since 1992. At the early October meeting,
among other things, Vinny said ‘‘I’m not even supposed to
be here. Randy Tucker is supposed to be here and starting
tomorrow you won’t be dealing with me, you’ll be dealing
with Randy Tucker.’’
In its defense, the Respondent Union called Randy Tucker.
At the time of his testimony he had been Local 912’s presi-
dent for more than 2 years. Tucker testified he became famil-
iar with the employees of the nine sets of buildings main-
tained by Ferlin from his involvement in the decertification
proceeding. He attended the meeting held on October 1, as
did Vincent Sombrotto, president of Local 966 Teamsters.
Vinny was there to introduce Tucker to the people in this
group, apparently meaning the Ferlin employees, whose em-
ployer would shortly be replaced by a new maintenance con-
tractor. Present were 15 to 20 employees. Vinny introduced
him as president of Local 912. Tucker was not exactly sure
what Vinny said to the assembled employees because he was
busy speaking to employees in the crowd. For the same rea-
son Tucker could not recall what Vinny said in exchanges
with employees.
Tucker was asked questions while he moved around
among the employees. When asked about the new company,
when it was taking over and the effect on jobs, Tucker could
only respond he didn’t know the name or when it was com-
ing in, or the impact on jobs. Local 912 would represent
them to the best of its ability.
Tucker distributed cards on October 1 and a few, including
Bourne and Graham, didn’t give them back. He knew they
were 32-B guys all along; they also might have not signed
the decertification petition. He learned they had stated they
weren’t signing with Local 912. On October 1, Bourne had
asked him about becoming a handyman and mentioned 32-
B having a program to become one. Tucker told him, ‘‘You
know 32-B’s number, if they wanted to represent you, don’t
you think they would come here.’’
Tucker learned the evening of October 27 that the new
company was starting the next day. On the morning of Octo-
ber 28 he met with a group of the maintenance employees,
secured a few more signed membership cards, and informed
them he would ask for recognition. Tucker sought out Art
Birnbaum who was present at the site, identified himself, and
said he had a majority of your people and showed Birnbaum
his cards. All of them had been secured on or after October
1. Birnbaum compared the signatures on the cards against the
signed employment applications the employees had turned in
earlier that morning and saying he had no authority to grant
recognition, he left to talk to his boss. After 15 to 20 minutes
Birnbaum returned, said his boss said it was okay to sign the
recognition agreement and he and Tucker then signed the
document which Tucker produced. In the agreement dated
October 28, the parties agree Local 912 represents a majority
of the employees, PBS recognizes the Union as sole and ex-
clusive bargaining representative for all full- and regular
part-time employees excluding everyone but maintenance,
and the parties agree to meet early and negotiate an agree-
ment.
On November 15 or 16, Tucker next met with approxi-
mately 15 to 20 employees. Contract proposals were dis-
cussed and consensus was reached on the demands to make
for terms to be included in an agreement. On December 1,
accompanied by a small employee negotiating committee
Tucker met with Birnbaum and Michael Francis, another
PBS executive, and negotiated a collective-bargaining agree-
ment which was executed by them and submitted to and rati-
fied by a majority of some 20 employees attending a union
meeting later the same day. The agreement contains a union-
security clause requiring unit employees to become and re-
main members of the Union on the 31st day following actual
beginning of work, the effective date of the agreement (De-
cember 1) or its execution date, whichever is later. It in-
cludes language that ‘‘the Employer will not be requested to
discharge an employee for reasons other than such employ-
ee’s failure to tender the periodic dues and initiation fees
. . . uniformly requested as a condition of acquiring or re-
taining membership in the Union.’’ The agreement also con-
tains a [dues-]checkoff clause requiring the Employer, on re-
ceipt of a written authorization signed by an employee, with
certain limitation not here germane, to deduct membership
dues and initiation fees from the employee’s wages on the
first payday of every month and remit same to the Union by
the 20th of the same month.
Tucker spoke to employees about signing the dues-check-
off cards which were distributed about a week later. While
some expressed concern, Bess, Bourne, and Eastman said
they were not familiar with it and they didn’t want to sign
the card. Tucker told them when they ratified the contract
there is a clause in it we went over, that says ‘‘check off’’
which means you are willing to have the checkoff. Bourne,
in particular, told Tucker he wasn’t signing the Local 912
card. He did not want to be a member of Local 912 and he
wasn’t going to pay the dues. He also said he was getting
another job at a 32-B location. He never submitted a dues-
checkoff card. Neither did Frank Graham. Aside from these
two employees dues were deducted from the pay of all other
employees and remitted to Local 912, starting with payroll
period ending March 5, 1993, and continuing to at least the
close of hearing.
Tucker testified he received expressions of concern from
some employees about Bourne and Graham not paying dues
out of 20 employees. Tucker had a conversation with Art
Birnbaum in which he discussed that it is a part of the con-
tract that they have to sign checkoff cards. They agreed to
the contract and the checkoff is in the contract. Tucker now
indicated he had conversations with both Graham and
Bourne about the matter. Bourne told him he wanted to pay
his dues on his own, and Tucker said he didn’t think he
could do that but he would check. Tucker spoke to his attor-
ney, then informed Birnbaum that the two employees were
not members of his union in good standing, and thus were
not allowed to be on the jobsite, and in Tucker’s words ‘‘ob-
viously they were terminated.’’ (Tr. 285.)
1057PLANNED BUILDING SERVICES
Tucker subsequently learned that he had received erro-
neous advice from his attorney that the employees could not
pay their own dues but had to sign checkoff cards. Tucker
later received other advice from another attorney in the law
firm representing Local 912 that the two employees could
not be terminated if they paid their dues themselves by a cer-
tain day of the month and they had to have a letter sent to
them explaining this. Tucker informed Birnbaum that the at-
torneys had made a mistake and they had to be reinstated
and had until the 10th of the month to pay their own dues
by money order. Birnbaum said the employees would be re-
instated.
Tucker denied that he ever threatened or heard anyone else
threaten any employees that if they did not sign either au-
thorization or dues-deduction cards for Local 912 they would
lose their jobs. Neither did he threaten anyone if he went to
the Labor Board he would be fired.
Tucker acknowledged that Bourne did sign a Local 912
authorization card on October 1. He never asked for it back
but clearly expressed his dislike for 912.
During his cross-examination Tucker stated he could not
recall how Vinny happened to come to a meeting with Ferlin
employees which he attended as a Local 912 representative.
Early in his examination he explained that he had become in-
volved in the decertification effort among Ferlin employees
through an employee at a building in Harlem whose employ-
ees were represented by the Teamsters Local 966 and Vinny
Sombrotto. He and Vinny had become friends and socialized
together. He went on that Vinny brought him to the October
1 meeting and introduced him—a statement that directly con-
tradicted his apparent lack of recollection of any arrangement
between them to attend the October 1 meeting.
Tucker’s testimony continued in the same disconcerting
and conflicting vein. He testified at one point that Vinny had
helped him out before plenty of times but denied that on this
occasion he was there to assist him in organizing. Before de-
nying Vinny’s assistance, Tucker, in typical fashion, became
evasive and avoided answering direct questions regarding
Vinny’s role, answering such direct questions with evasive
questions of his own. Tucker amazingly even denied that
Vinny spoke about Local 912 at the October 1 meeting, and
then said he was not listening to Sombrotto and could not
recall any remarks he made after greeting the attendees.
Tucker’s testimony in general was designed to obfuscate,
consistently evading direct answers, fencing with the ques-
tioner, and internally inconsistent, and is not credited insofar
as it was intended to diminish Sombretto’s role in assisting
Local 912 and in influencing employee sentiment in favor of
Local 912 and insofar as it was intended to contradict the
multiple employee witnesses who attributed to Sombretto and
to himself threats of discharge and other unspecified reprisals
to employees if they did not sign cards for Local 912. Sig-
nificantly, Sombrotto, alleged in the complaint as an agent of
Local 912, was not called to testify by either Respondent. I
draw the inference that if he had been called, his testimony
would not have aided the defense.
Tucker did acknowledge that Vinny introduced him to var-
ious Ferlin employees when it became apparent to those em-
ployees involved in the decertification effort that Local 966,
Teamsters could not represent them because of its member-
ship in the AFL–CIO and commitment to its no-raiding pact.
At the time of the decertification election in October 1991
Local 912 had no contracts, but a year later it had maybe
100 collective-bargaining agreements.
Tucker was meeting with Ferlin employees on October 21
to organize them and to obtain their support in anticipation
of a change in ownership of the maintenance operation at the
Ferlin buildings. Local 912 cards were distributed that day,
and no one, including Vinny, was seeking support for Local
966, by distributing cards or by any other means. In his pre-
trial affidavit which Tucker was obliged to acknowledge but
which he did not recall, he stated that Vincent was the main
speaker to the employees and he, Tucker, was standing at the
door talking to employees as they entered and exited the
room. I credit these statements over Tucker’s failure and re-
fusal to adopt them. See Rule 801(d)(1), FRE, and Fun Con-
nection & Juice Time, 302 NLRB 740 (1991), and cases
cited at 748.
Before PBS took over Tucker held another meeting at-
tended by 10 of 12 Ferlin employees. At this meeting, Tuck-
er collected eight or nine membership or pledge cards from
Superintendent Sam Rodriguez. After December 1, Tucker
started distributing dues-deduction cards. Employees Bourne
and Graham, among others initially refused to sign them.
Bourne, in particular, refused to sign this card many times,
telling Tucker that he didn’t want to be involved with 912
at all, and that if he was going to be involved with 912 he
would pay his dues himself. Tucker believed Bourne men-
tioned paying by check but he also might have said he would
want a receipt. Tucker’s response to Bourne, at least several
times, was that as a majority of votes passed for the checkoff
clause of the contract, he had to sign a checkoff card because
that’s what a majority had agreed to.
With respect to the events of February 2, 1993, by this
time only Bourne and Graham had not signed dues-checkoff
authorizations. In a conversation around this time, probably
during their February 2 talk, Tucker informed Birnbaum of
this fact when Birnbaum had questioned Tucker about why
their names did not appear on the monthly bill for dues re-
mittances from Local 912. In his conversation with Art
Birnbaum on February 2, Tucker in essence told Birnbaum
that as Bourne and Graham hadn’t signed the checkoff card
they were not members of 912 in good standing. They did
not pay any dues. As Tucker described it they hadn’t sent
any money at that time, and he probably did say that they
should be terminated, that they were not in his Union. Tuck-
er did not inform Birnbaum that Bourne, in particular, had
offered to pay his dues directly but that he, Tucker, had not
permitted Bourne to do so.
According to Tucker, Birnbaum’s reaction, other than ex-
pressing some remorse for their plight, was to question Tuck-
er closely as to whether he was sure the two employees
would not sign cards and whether Tucker had spent time
with them about it. The subsequent telephone call from
Birnbaum to Rodriguez expressing his intent to fire the two,
and the exit interview Rodriguez held with them during
which they were terminated has been testified to by the af-
fected employees and Rodriguez. Their testimony is entirely
consistent with the request Tucker made of Birnbaum.
After Tucker learned he had made a mistake and called
Birnbaum to request the employees’ reinstatement, according
to Tucker, Birnbaum admitted having made a fool of himself
for having complied with Tucker’s wrongful advice and rea-
soning.
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As to Local 912’s recognition by PBS, Tucker claimed to
have approximately 17 signed authorization cards in his pos-
session—all signed when the employees worked for Ferlin—
when he met Birnbaum on October 28. When Birnbaum
compared signatures that morning, he had 17 signed cards
from Tucker, as against 20 signed employment applications.
Among these signed cards were the seven or eight cards he
had previously provided to Rodriguez to get signed and
which Rodriguez brought to the meeting Tucker held with
employees between October 1 and 28.
Elija McNeil, presently a porter employed by PBS at
A. K. Houses, but previously a doorman employed by
Ferlin, testified for Local 912 that he was present on October
1, when Vinny spoke and introduced Randy Tucker to the
assembled employees. Vinny told the employees he could not
represent them because he’s from the Teamsters Union and
they are party to the no-raiding pact, but Randy Tucker could
represent them because his was an independent union.
McNeil did not hear Vinny make any statement that if em-
ployees did not sign Local 912 authorization cards they
would be terminated or any remarks concerning Hasidic Jews
or that the Teamsters could represent them later. McNeil had
previously signed a Local 912 card during the decertification
campaign in 1991, and is presently a member.
In conflict with Tucker’s testimony, McNeil recalled that
Vinny and Randy stayed together during the whole meeting
and Randy did not speak to employees individually during
the meeting but only after it formally ended. McNeil could
recall very little of what Vinny said and nothing of Randy’s
remarks at the meeting. He did deny that either spoke about
job security or a new company coming in. Suprisingly,
McNeil denied that either tried to persuade the employees to
support Local 912 and they did not explain why they were
there calling a meeting.
Later cross-examination established that McNeil was ap-
pointed a trustee of Local 912 in November, 1993 after re-
questing the appointment of Randy and appearing before the
board of trustees. As a trustee McNeil expects to receive a
reduction in the $30 monthly union dues.
McNeil finally admitted that because of side conversations
in which he participated going on in the room, his attention
wandered, and he did not hear everything being said at the
meeting. Since he had already joined or decided to join 912,
he had no reason to listen to reasons why he should join. Be-
cause of McNeil’s admitted inattentiveness, I find that his
testimony did not conflict with that of the employees who
testified for General Counsel.
Sam Rodriguez, called as a witness by PBS, attended the
October 1 meeting called by 912. Vinny introduced Randy
who spoke to various employees in the crowd and handed
out cards. Rodriguez could not recall anything said by Vinny
other than his introduction of Tucker, questions were asked
but he could not recall any specifics. Neither could he recall
anyone say people could be fired or wouldn’t be hired by a
new company if they didn’t sign cards for Local 912.
Rodriguez himself collected some cards which employees
gave him to hold onto and pass on to Tucker. On October
1, Tucker gave him some blank cards to distribute to em-
ployees who asked for them, and then gave them back to
Tucker.
On November 2, Rodriguez acknowledged that he advised
Bourne and Graham that they were terminated. Art Birnbaum
had called him earlier that day to advise the two that they
were terminated, to pull their timecards to the side and he
would be up during the course of the day.
Rodriguez could not recall what specifically Birnbaum told
him about Bourne and Graham, but it had something to do
with their union dues. He knew that both employees had
complained about not wanting to sign dues-deduction cards.
Later, Rodriguez now testified that he told the two they were
being fired either because they didn’t sign payroll deduction
cards for dues or because they didn’t want to sign such
cards.
Arthur Birnbaum testified for Respondent PBS that on Oc-
tober 27 at 3 p.m., accompanied by William McDuffy, direc-
tor of operations, and John Ganley, another PBS executive
he met with 20 to 25 Ferlin Manhattan facility employees.
McDuffy said he would be in charge initially of operations.
The employees were told that PBS would be taking over the
maintenance contract on the buildings the next day, and
those who wished to be employed by PBS should fill out the
applications when distributed and bring them back tomorrow
morning to start work. In answer to a quesion as to what
they would be paid, Birnbaum said, ‘‘We would stay with
the same wages they were currently making. No other bene-
fits, but wages.’’ (Tr. 686.) Another person asked if we have
no beneifts at all, and the PBS officials said, ‘‘No. The only
thing we are offering you is the same wages that you are
currently making.’’ Birnbaum testified he was unaware of
what benefits the employees had been receiving.
The next day, between 10 and 10:30 a.m., Randy Tucker
approached him in the maintenance office of 1775 Houses,
said he had signed cards from most employees that were cur-
rently there, and he wanted to be recognized as the union.
Present also was an off-duty police officer. Birnbaum left to
telephone his office, got Mr. Francis who called him back
after 15–20 minutes and told him to ‘‘look at the cards,
match them up with the applications, see if the signatures are
the same, and if the majority is there, recognize them.’’
Birnbaum went back to the management office, took the
cards from Tucker, and matched the signatures against those
on W-4 forms attached to the applications, counted 15 cards
which was the majority of the 18 applications, and signed the
proffered recognition agreement. All but two of the cards
listed Ferlin as the employer; the remaining two were blank
as to employer.
Birnbaum did not see any gathering of employees with
Tucker thereafter on October 28. Birnbaum denied that his
company supplied any materials or equipment for use by the
newly employed PBS personnel on the sites, only the chemi-
cals for cleaning. All other equipment and supplies, including
plumbing supplies, heating supplies, physical equipment,
sunblowers, floor machines, and vaccums were supplied by
the ownership management company. There was no evidence
offered that that company or the equipment and supplies pre-
viously provided Ferlin employees changed when PBS took
over the maintenance contract.
Birnbaum confirmed that he received a telephone call from
Kevin McCulloch of Local 32-BJ, during which McCulloch
claimed they were part of a unit represented by Local 32-
BJ and sought to meet to talk about a contract. After
Birnbaum advised McCulloch of PBS’ recent recognition of
Local 912, based on cards, he could not recall, but did not
1059PLANNED BUILDING SERVICES
deny that McCulloch may have told him not to negotiate a
contract with that union.
As to employees, Bourne and Graham, Birnbaum testified
in conflict with Sam Rodriguez that he was first informed by
Tucker to terminate the two for not paying dues, and then
told Rodriguez to take their timecards out of the on-duty rack
because he had to terminate them for not paying their dues.
Previously, Bourne had told him he didn’t want to pay union
dues.
During his cross-examination by counsel for the General
Counsel, Birnbaum was absolutely sure that Tucker advised
him to discharge Bourne and Graham because they didn’t
pay their dues because he had asked and Tucker confirmed
he was absolutely sure. Yet, before February 2, 1993,
Birnbaum had heard Bourne say to him he wanted to and
had offered to pay his dues by money order and Birnbaum’s
answer had been that’s between you and the union.
In acceding to Tucker’s request, Birnbaum did not check
with Michael Francis, his superior, nor did he talk to Bourne
or Graham before he had them fired.
After Tucker later told him he had received the wrong ad-
vice, they can pay by money order or check, he arranged
from them to be reinstated on Monday, February 8.
E. Facts and Conclusions Regarding the Supervisory
Status of Sam Rodriguez
I have previously summarized the testimony showing
Rodriguez’ role in the February 2, 1993 termination of em-
ployees Bourne and Graham. In acting for Birnbaum in re-
moving their timecards from the active rack and informing
them of their separation at the direction of Birnbaum,
Rodriguez appears to have aligned himself with management
in the eyes of those employees. As employee Graham an-
swered when asked whether Sam Rodriguez ever disciplined
him, ‘‘only when he fired us.’’ (Tr. 133.) Graham and
Bourne were first notified that Sam wanted to see them.
While Graham later acknowledged that Art called up and di-
rected Sam to discharge them, it is evident that the two em-
ployees considered Rodriguez to have the apparent authority
to impose discipline although directed to do so by higher au-
thority. Albertson’s Inc., 307 NLRB 787, 795 (1992), and
Toyota of Berkeley, 306 NLRB 893 (1992).
It is also apparent from employee Ronald McKinney’s tes-
timony, that in attending his private grievance meeting with
Randy Tucker and voicing sentiment against McKinney’s re-
instatement, Rodriguez was further aligning himself with and
reinforcing management’s position in opposing McKinney’s
reinstatement. McKinney also testified that while employed
at Ferlin, Sam supervised his work to the extent of assigning
him duties and reassigning him special duties, e.g., he want-
ed his floor cleaned all the time, pulling him off his work
at the time, and bringing his failure or refusal to perform du-
ties to the attention of the boss. When he was off work be-
cause of a son’s illness, on his return he handed in a doctor’s
medical certificate to Sam, but was nonetheless denied pay
for the leave. On this occasion, Rodriguez told McKinney,
in the presence of Union Steward Bess, that although the
leave was not approved in writing it would not count toward
the three written warnings that could result in his being
placed on probation or his discharge. In performing this role
Rodriguez was acting for the employer in the adjustment of
a grievance to the extent that McKinney was asserting a
claim to pay for his absence. See Hamburg Shirt Corp., 156
NLRB 511 (1965).
Sam was also responsible for employees’ timecards, ar-
ranging for recording of McKinney’s workhours when he
could not access his card because the office where they were
stored was inaccessible. McKinney also sought permission
from Rodriguez for time off from work.
According to Bourne, Rodriguez had an office at A. R.
Houses, which was shared by Superintendent Daryl Wil-
liams. He received his work assignments from Sam and no
one else. He saw Rodriguez perform payroll and paperwork
in the office daily. He also performed porter or handyman
work maybe twice a week for a half hour at a time. when
asked about an onsite manager for PBS, above Rodriguez,
Bourne, who continued to work for PBS from October 28,
1992, to May 28, 1993, when he quit, denied that there was
such a manager, such as Mark Wilson or Gary Richardson,
for the first 5 or 6 months of PBS’ maintenance contract.
There was no contrary testimony from Respondent.
Eastman confirmed that Rodriguez gave him his work as-
signments and also gave him permission to leave work early
in an emergency. Eastman had been transferred to M. S.
Houses in September 1992. At the time, the Superintendent
from those buildings was out on disability. Sam Rodriguez,
who had been running A. K. Houses, also took over M. S.
Houses as the senior supervisor, a job which Rodriguez con-
tinued performing on the takeover by PBS on October 28.
He basically ran everything after October 28. Rodriguez
brought him his work tickets and told him what to do. He
also checked to see if there was anything that had to be done
in the building itself and was authorized to give Eastman
these assignments. Eastman identified Mark Wilson as the
overall supervisor for PBS at all its locations in New York.
The worktickets were picked up by Rodriguez from the
building management, the agents for the owner.
Samuel Rodriguez testified he was responsible for daily
preventive maintenance covering the boilers, pumps, all me-
chanical equipment, interior and exterior lighting, hallways,
property, grounds, and all other aspects of the property. He
was also in charge of janitorial aspects of the buildings. He
picks up daily service sheets or work tickets which are tenant
generated requests for repairs and maintenance and at daily
morning meetings with the two other superintendents for the
four building complex comprising 1775 Houses, A. K.
Houses, and M. S. Houses while retaining particular respon-
sibility for A. K. building where he resides at 12 East 18th
Street, as senior superintendent for all four, he distributes the
work tickets among the superintendents.
In the course of making these assignments to himself, he
also makes the decisions and issues instructions on priority
as to which job is more urgent and requires immediate atten-
tion. With respect to those work tickets he retains, Rodriguez
makes a further judgment as to whether to assign a particular
job to the handyman in his particular building or to retain
it for himself, and also hands out job tickets to the three por-
ters in the building who normally have designated assigned
work floors or areas. Rodriguez retained these responsibilities
at these buildings at least for the 4-month period from Octo-
ber 1992 through January 1993. On all work ticket assign-
ments Rodriguez is evaluating the work skills of the employ-
ees available to him in making assignments.
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On an almost daily basis, Rodriguez transfers porters and
handymen from one assignment and between buildings de-
pending on the presence of emergencies which would peri-
odically arise and his judgment as to their urgency and the
number of handymen and porters available on any given day.
Particular assignments aside from the work tickets are made
by Rodriguez as a result of his early morning visual inspec-
tions of the buildings and grounds. On those occasions when
an employee called in sick, Rodriguez would receive that in-
formation from the security office located at the 1775 build-
ing at 7 a.m. and would make adjustments in work assign-
ments to cover certain existing conditions.
Frequently, on the average of once a week, the two other
superintendents seek Rodriguez’ advice on how to handle a
particular problem. Rodriguez also maintains a list of tem-
porary staff who he may call, generally in their order of hav-
ing made written application for work, if there are at least
two or three people out and there is a heavy workload, after
first obtaining Birnbaum’s permission. Rodriguez will nor-
mally seek permission to call three standby workers if he is
short three employees. This appears to be a judgment which
Rodriguez will make before seeking Birnbaum’s approval,
which appears to have been fairly automatic.
Rodriguez also retains his own records of hours worked by
each employee to which he refers in cases of an error
claimed by an employee of shortchanging by the employer.
It appears that this record was reviewed by both Ferlin, and
since October 28, 1992, by PBS in the person of Arthur
Birnbaum when any question of work hours arises and even
on a regular weekly basis, prior to Birnbaum’s preparation
of the final payroll.
With respect to discipline of employees, while Rodriguez
denies having any authority in this area, he acknowledged he
may have informed Ronald McKinney he was being dis-
charged for tardiness and excessive absence.
Rodriguez has approved an employee working through
lunch if he has to leave work early, say at 3 p.m. While he
has not denied earlier leavings of employees during a work-
day, he will later inform Birnbaum of the facts regarding the
employee’s shorter workday.
When asked to name the people ‘‘on his staff’’ during the
period from October 1992 to January 1993, Rodriguez listed
11 employees by name and then provided a total of 19 in-
cluding himself.
Rodriguez’ hourly pay rate for the period ending Novem-
ber 27, 1992, was $14.29, the same as the other superintend-
ents. He also receives a rent free apartment and utilities.
Handymen were paid $13.16 an hour and porters received
$12.08. Rodriguez wears a uniform like other employees and
his vote was not challenged in the decertification election.
Finally, Rodriguez engages in the preliminary screening
process of new applicants for employment. He distributes
employment applications, interviews them, including ques-
tioning applicants on their experience, and asks them to sup-
port their applications with appropriate documentation of li-
censing and the like. He acknowledges screening out those
who don’t have the requisite potential, providing Birnbaum
with information about the surviving applicants at his re-
quest, and reviewing the applications with Birnbaum when
an opening arises.
On the basis of the foregoing, I conclude that Rodriguez
is a supervisor within the meaning of Section 2(11) of the
Act. It is evident that Rodriguez has authority in the interest
of the employer to responsibly direct employees, in the
course of which he uses independent judgment. Serendippity-
Un-Ltd., 263 NLLRB 768, 771 fn. 4 (1982). Van Pelt Fire
Trucks, 238 NLRB 794, 795–796 (1978). Thus, Rodriguez
not only makes initial work assignments on the basis of his
judgment of the priority and urgency of the maintenance
problem either brought to his attention or which he locates
on his early morning inspection, but he reassigns employees
to other work duties within a particular building or between
buildings when called for in his judgment, weighing staff
availability, skills, and other factors. Rodriguez also approves
early leaving and time off from work and advises on the se-
verity of work infractions, to the extent that the employees
affected are made aware of Rodriguez’ status as a conduit of
management, even though in so acting Rodriguez is follow-
ing company rules and standards. Particularly, in informing
Bourne and Graham of their terminations and in informing
McKinney of his discharge and voicing disapproval of
McKinney’s reinstatement Rodriguez was clothed by PBS
with the appearance of authority to act on its behalf in its
dealings with employees. Albertson’s Inc., and Toyota of
Berkeley, cited supra.
Rodriguez had adjusted a grievance on behalf of manage-
ment when McKinley sought to avoid docking of his pay for
an absence occasioned by his son’s illness, by informing him
in the presence of Union Steward Bess that while not com-
pensated, the unauthorized leave would not count as a warn-
ing which could lead to his discharge. Hamburg Shirt Corp.,
cited supra.
Rodriguez’ authority exceeds that of the other building su-
perintendents to the extent of his making assignments of
work orders among the buildings and their staff at daily
meetings with the other superintendents by distributing work
tickets, and by resolving work-related disputes which the
other superintendents brought to his attention. Rodriguez’
characterization of himself as senior superintendent recog-
nized by the company is thus fully warranted on this record.
In filling gaps in staffing, arising from absences of unit
employees, Rodriguez appears to exercise some discretion in
determining when, and under what circumstances, to call in
standby workers for the day, after first informing Regional
Vice President Birnbaum of his determination. On these oc-
casions, Rodriguez’ recommendations on staffing appear to
have been invariably effective. It also appears that at all
times material, Rodriguez retained a direct subordinate super-
visor relationship with Birnbaum regarding all onsite day-to-
day employee work-related matters, even after PBS assigned
a managerial employee to oversee the Manhattan facilities
some 6 months after the PBS takeover of the maintenance
operations. Thus, at least during the first 6 months of its op-
erations, and even thereafter, Rodriguez was the senior Com-
pany representative with direct day-to-day responsibilities for
the maintenance function and personnel matters. Seren-
dippity-Un-Ltd., cited supra.
Finally, in apparently recognizing Rodriguez’ judgment in
resolving employee disputes involving work hours by virtue
of his recordkeeping in this area and Birnbaum’s weekly
consultations with him before preparation of final payroll,
Respondent PBS has further enhanced Rodriguez’ role as a
management conduit and figure of authority with employees.
1061PLANNED BUILDING SERVICES
In his preliminary screening out of applicants for employ-
ment who don’t have the requisite potential, Rodriguez fur-
ther evidences his authority on one important aspect of the
hiring function.
F. Credibility Resolutions
Four employees testified to the threats made by Vinny
Sombrotto at the October 1 meeting, and at least two of them
testified to threats made by Randy Tucker at later meetings.
While there are some differences among them as to the pre-
cise statements each of these individuals who addressed them
made and the dates of the various meetings, I am impressed
by the substantial corroboration each gave to the others in
describing the nature of the solicitations Sombrotto and
Tucker made in inducing employees to sign Local 912 au-
thorization and dues-deduction cards. I also credit those em-
ployees who testified to Vinny’s description of the new own-
ers as Hasidic Jews and their supposed refusal to deal with
Local 32-BJ. In particular, I credit Jared McNeil, McKinney,
Bourne, and Eastman that Vinny told them that the new em-
ployer would not recognize or deal with Local 32-BJ and if
they wanted to keep the jobs they had to sign Local 912
cards. Neither McNeil’s later discharge for absenteeism
McKinney’s termination for tardiness and his subsequent
fruitless attempts to secure Local 912’s assistance in achiev-
ing reinstatement undermined their credibility. Although
Bourne appeared to have problems in identifying and distin-
guishing Sombrotto from Tucker and in maintaining his
composure and avoiding argumentative responses on cross-
examination, I am convinced that Bourne was credible and
the General Counsel and Charging Union counsel’s effort to
rehabilitate him on redirect examination, particularly by his
identifying Tucker in the courtroom and by being refreshed
as to the consistent statements he made in his pretrial affida-
vit, was successful.
Most impressive was McNeil’s explanation that he signed
the Local 912 card in order to keep his job. It is noteworthy
that only one Respondent witness could possibly be said to
have disputed the employees’ consistent accusations against
Vinny. Sombrotto himself was not called as a witness and
Rodriguez vaguely testified that other than Vinny’s introduc-
tion of Tucker, he could not recall any other remarks made
by Tucker or by any employees in attendance. Neither could
Tucker recall any statements made by Vinny as he allegedly
moved around among the employees soliciting their support.
Only employee Elija McNeil testified at one point that nei-
ther Vinny nor Randy spoke about job security at the Octo-
ber 1 meeting. But he testified earlier he did not hear Vinny
threaten termination for failing to sign Local 912 cards. To
the extent Elija McNeil denied the threats made by Vinny he
is not credited. Elija McNeil could recall very little of the
substance of the meeting and incredibly denied its purpose
was to rally support for 912.
I found Eastman’s presentation the most coherent and de-
tailed of the 264 NLRB 1088 employee witnesses who testi-
fied. I credit him generally, and in particular that Tucker
threatened company suspensions against anyone who associ-
ated with Local 32-BJ—this testimony was corroborated by
McNeil and McKinney—and unspecified reprisals for provid-
ing statements to the Labor Board. I further credit Eastman
that late in January 1993, Tucker responded to Bourne’s ex-
pression of support for Local 32-BJ with the statement that
if he did not sign the cards and deal with Local 912, he
would be out of a job. McKinney, in particular, provided a
credible presentation of the January meeting at which em-
ployees, including McNeil, Graham, Bourne, and even Stew-
ard Bess, objected to dues deduction from their pay and at
which Graham expressed support for Local 32-BJ. McKinney
corroborated Eastman in describing the twofold Tucker re-
sponse, first, that support for Local 32-BJ could result in ter-
mination, and, second, that dues deduction from pay was re-
quired by law and was automatic.
Randy Tucker has previously been discredited regarding
his denials of any threats he made to employees on Local
912 solicitations if they did not support or sign cards for
Local 912 or maintained assistance to Local 32-BJ. Tucker
is further discredited to the extent he denied in any respect
that he sought the discharge of Bourne and Graham for fail-
ing or refusing to execute Local 912 dues-deduction cards.
Bourne, Graham and even Rodriguez support the allegation
of the complaint that it was the employees’ refusal in this
regard that led to Tucker’s request for their discharge. The
evidence is strong that Bourne, and even Graham, offered to
pay dues directly by money order, and that Tucker refused
their offer.
I further find, contrary to Arthur Birnbaum, that he was
aware of Tucker’s request, that he even expressed reluctance
at complying with it, and sought to assure himself that every
effort had been made by Tucker to secure the employees’
signatures to the deduction form and that they were aware
of the consequences for failing to authorize deduction.
Birnbaum acknowledged he was aware that Bourne had pre-
viously offered to pay dues directly to 912. It also appears
that the telephone conversation during which Tucker re-
quested the employees’ discharge was triggered by Birn-
baum’s inquiry of Tucker as to why Bourne’s and Graham’s
names had not appeared on the Union’s dues form it had
submitted to PBS and their absence from this list became the
focal point of Tucker’s response and request for discharge.
I also find, in agreement with Eastman and Birnbaum, and
contrary to other employee witnesses, that Birnbaum told
Ferlin employees on October 27, that only their wages would
remain the same, and that as to their other benefits, every-
thing started fresh when PBS was to take over the following
day. Jared McNeil’s, Frank Graham’s, and Jeffrey Bourne’s
recollections that Birnbaum told them on October 27 that ev-
erything was going to remain the same did not specifically
address the benefits that the employees then enjoyed, and
could easily have become confused in their minds with
Birnbaum’s offer to employ them all at the same buildings,
and under the same schedules, working conditions, and
wages.
Discussion and Analysis
The first question which arises is whether PBS constitutes
a successor employer to Ferlin. If so, PBS had a duty to rec-
ognize and bargain with Local 32-BJ, the union which rep-
resented its predecessor’s employees, which would not have
been rebutted by the filing of the decertification petition,
Dresser Industries, 264 NLRB 1088 (1982); Radisson Plaza
Minneapolis, 307 NLRB 94 fn. 14 (1992).
I have already noted that PBS accepted every applicant
previously employed by Ferlin, and that these employees
constituted PBS’s full work force on the day it commenced
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
operations. PBS assigned the same service functions, utiliz-
ing the same tools and equipment with the same immediate
supervisory superintendents and other employees in the same
job classifications at the same residential buildings and with-
out any hiatus in operations. Normally, these facts and fac-
tors warrant the conclusion that PBS constitutes the succes-
sor to Ferlin as the employing entity for the Manhattan facili-
ties. NLRB v. Burns Security Services, 406 U.S. 272 (1972);
Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987).
Respondent PBS however, argues that because the unit for
whose employees Local 32-BJ asserts exclusive bargaining
status excludes five of the nine building units as well as the
doormen employed in some of those buildings which com-
prised the unit in which Local 32-BJ had previously rep-
resented the predecessor Ferlin’s employees, PBS cannot
possibly be considered to be Ferlin’s successor. The test to
be applied in such situation in determining successorship is
whether there is a substantial continuity in operations and the
employees’ job functions are ‘‘essentially unaltered.’’
In Louis Pappas’ Restaurant, 275 NLRB 1519 (1985), the
Board stated the following:
[It is well established, however,] ‘‘that the succes-
sorship obligations are not defeated by the mere fact
that only a portion of a former union-represented oper-
ation is subject to the sale or transfer to a new owner,
so long as the employees in the conveyed portion con-
stitute a separate appropriate unit, and they comprise a
majority of the unit under the new operation.’’ [Quoting
from Stewart Granite Enterprises, 255 NLRB 569, 573
(1981).]
The Board applied this principle in Hydrolines, Inc., 305
NLRB 416 (1991), School Bus Services, 312 NLRB 1
(1993), and Steward Granite Enterprises, 255 NLRB 569
(1981). In each of these cases, the successor employer, just
like PBS, took over only a portion of the predecessor’s oper-
ations and bargaining unit.
Under the instant facts, it is clear that the maintenance op-
eration at the four Manhattan facilities, excluding the door-
men, constitute an appropriate bargaining unit. The employ-
ees at these facilities also comprised not only the majority
but the total complement of employees employed in the new
operation. Thus, the principle enunciated in Louis Pappas,
supra, should apply.
Respondent PBS argues nonetheless, that the removal of
the doorman from the unit sufficiently fragments the unit so
that it can no longer be deemed a successor without them.
I have already noted that without the doorman, the remaining
maintenance operation, complete in itself, is an appropriate
bargaining unit. Further the complement of doormen, only 13
of whom were included in the prior unit, were employed at
only 2 of the 4 Manhattan facilities. Thus, PBS’ failure to
employ them at all four facilities expanded an existing bar-
gaining history at M. S. Houses and Los Tres Unidos and
applied it now to A. K. Houses and 1775 Houses as well.
With such a mixed prior bargaining history, the failure to
employ doormen at two facilities cannot possibly destroy the
substantial continuity in operations or have altered the nature
of the job functions sufficiently to render PBS a nonsuc-
cessor.
Even when the doormen were employed at A. K. Houses
and 1775 Houses they were separately supervised and their
numbers were related to the fact that they performed a 24-
hour service rather than the normal workday maintenance
function.
The cases cited by Respondent PBS in its brief for a con-
trary result are each distinguishable. In particular, in Nova
Services Co., 213 NLRB 95 (1974), on which Respondent
places great reliance, since the claimed successor employer
did not even succeed to all of the janitorial work previously
performed by the alleged predecessor at a particular bank, a
competing enterprise having taken over much of the bank
work all of which the alleged predecessor had previously
performed, the facts differ greatly from those in the instant
proceeding. Here, PBS succeeded to all of the maintenance
functions and operations at the four Manhattan facilities and
thus, even without the continuation of doormen at two of the
four facilities, met the test of a substantial continuity in the
employment enterprise. Similarly, in Atlantic Technical Serv-
ices Corp., 202 NLRB 169 (1973), enfd. 498 F.2d 680 (D.C.
Cir. 1974), the alleged successor took over only one of the
functions of the predecessor at one site of a larger, multisite
bargaining unit. In no way can the splintering of the unit in
Atlantic Technical Services, in which only the mail and dis-
tribution services portion of a much larger general installa-
tion support services contract was assumed at the one site,
be equated with PBS’ assumption of all of the maintenance
functions and operations under its service contract.
Having concluded that PBS was the successor to Ferlin in
the employing enterprise, Local 32-BJ thus enjoyed a pre-
sumption of continuing majority status under its expired col-
lective-bargaining agreement with the predecessor. Burger
Pits, Inc., 273 NLRB 1001 (1984).
Respondents assert, however, that Local 912’s intervening
demand to bargain destroyed that presumption, and allowed
PBS to recognize and bargain to contract with Local 912.
I conclude that Local 912’s claim to majority status was
tainted from the very outset by the threats made by Vinny
Sombrotto on October 1, and made thereafter by Randy
Tucker in mid and late October and in November in their
meetings with employees.
I have previously credited the various employees regarding
the nature of Sombrotto’s remarks and threats made at the
October 1 meeting. Resondent Local 912 denies Sombrotto’s
status as its agent. It failed to file a posthearing brief on this
defense. There is no quesiton that Tucker invited Sombretto
to attend the meeting and introduced him to the Ferlin em-
ployees, some of whom had already participated in the decer-
tification proceeding and who would also be in line to short-
ly become employees of Ferlin’s successor. It was Sombrotto
to whom a few influential employees had turned when they
had initially sought help in removing Local 32-BJ as their
bargining agent. Sombrotto had referred them to Tucker.
Sombrotto and Tucker had developed a social relationship
which also involved their union functions. It was now
Sombrotto’s role, as a friend and associate of Tucker’s, to
help Tucker’s newly created Local 912 achieve employee al-
legiances at a crucial time when they were likely to become
employed at the same buildings by a new maintenance con-
tractor.
Neither Tucker nor Local 912 can avoid the conclusion
that Sombrotto’s presence, standing as a Teamsters’ local of-
1063PLANNED BUILDING SERVICES
ficial, and role as chief speaker on behalf of Local 912 at
a meeting 912 organized were all designed to convey to the
employees Sombrotto’s status as an individual actively sup-
porting Local 912’s efforts to succeed Local 32-BJ as their
bargaining agent.
Accepting Sombrotto’s assistance and permitting the em-
ployees to receive the distinct impression that Sombretto was
speaking for, and with the approval of, Tucker and Local
912, is sufficient to establish Sombrotto as 912’s agent. See
SMI of Worcester, 271 NLRB 1508, 1521 (1984). Section
2(13) of the Act provides:
In determining whether any person is acting as an
‘‘agent’’ of another person so as to make such other
person responsible for his acts, the question of whether
the specific acts performed were actual authorized or
subsequently ratified shall not be controlling.
Thus, it is not necessary to establish that Tucker ‘‘author-
ized or subsequently ratified’’ Sombrotto’s unlawful conduct
in order to establish his agency. The courts liberal applica-
tion of this definition to employers is equally applicable to
unions. See NLRB v. Arkansas-Louisiana Gas Co., 333 F.2d
790, 795 (8th Cir. 1964). See also Machinists v. NLRB, 311
U.S. 72, 80 (1940). I however, also conclude that having
taken advantage of Sombrotto’s threats to solicit a number of
authorization cards at the October 1 meeting, Tucker’s and
Local 912’s failure to repudiate Sombrotto’s threats is an-
other significant reason why his conduct should be attrib-
utable to the Union. NLRB v. Urban Telephone Corp., 499
F.2d 239 (7th Cir. 1974).
By accepting Sombrotto’s assistance and clothing him with
the apparent authority to speak on its behalf, Sombretto’s ac-
tions are attributable to and binding upon Local 912. Sears
Roebuck de Puerto Rico, 284 NLRB 258 (1987); Corrugated
Partitions, 275 NLRB 894, 900 (1985).
Sombrotto’s comments were extremely coercive and de-
signed to intimidate the employees into supporting Local 912
as the price of retaining their jobs. They clearly warrant the
conclusion that they violated Section 8(b)(1)(A) of the Act.
Furthermore they form a sufficient basis for concluding that
all of the authorization cards individually solicited at that
meeting by Tucker and which were either signed there or on
later occasions were tainted and could not support a claim
of majority status for Local 912, Famous Castings Corp.,
301 NLRB 404, 408 (1991), and cases cited therein.
Randy Tucker’s threats which he subsequently uttered, in-
cluding company suspensions for any employees who associ-
ated with Local 32-BJ, and discharge if employees did not
sign the cards and deal with Local 912, among others, as
well as his threat of unspecified reprisals for providing state-
ments to the Labor Board, also violated Section 8(b)(1)(A)
of the Act.
A number of Tucker’s threats were uttered by him at the
meeting he held with employees on October 27, the day be-
fore presenting PBS with his bargaining demand. Any cards
solicited and signed on this occasion were also clearly taint-
ed.
Finally, by virtue of the conduct and activity of Super-
intendent Sam Rodriguez, who I have concluded is a super-
visor under the Act, in circulating, soliciting, receiving, and
returning signed cards to Local 912 which were included in
its submission and PBS’ count, those cards are also subject
to a separate taint arising from the supervisor’s conduct.
Reeves Bros., 277 NLRB 1568 fn. 1 (1986); Sarah Neuman
Nursing Home, 270 NLRB 663 fn. 2 (1984). Removing the
eight cards which Rodriguez procured alone reduces Local
912’s card showing well below that necessary to show a ma-
jority in the unit. Tucker claimed he submitted 17 cards, but
Birnbaum testified to receiving only 15; Tucker may have re-
ceived 2 additional cards above the 15 offered while at the
facility later that day. The unit consisted of either 18 as as-
serted by Birnbaum or 20 as claimed by Tucker. In either
case, the seven remaining cards, after removing those pro-
cured by Rodriguez, are insufficient to establish a majority,
even if Sombrotto’s and Tucker’s coercive acts are not con-
sidered.
Having thus rejected 912’s majority claim, Local 32-BJ
was entitled to recognition as exclusive bargaining represent-
ative by the successor and by its failure to recognize and bar-
gain with Local 32-BJ, PBS has violated Section 8(a)(1) and
(5) of the Act. See NLRB v. Burns Security Services and Fall
River Dyeing Corp. v. NLRB, supra. Furthermore, by rec-
ognizing Local 912 and then executing and implementing the
terms of its agreement with Local 912, and in the face of
Local 32-BJ’s agent’s demands to the contrary, PBS has ex-
tended unlawful assistance to Local 912, in violation of the
Act. Further, by including a union-security clause in its
agreement with Local 912, and then enforcing that clause to
the extent of terminating employees Bourne and Graham at
Local 912’s insistence, PBS has provided unlawful assistance
to Local 912 in violation of Section 8(a)(2) and has also dis-
criminated against its employees regarding their tenure of
employment in violation of Section 8(a)(3) because of their
unwillingness to pay dues to Local 912 pursuant to an un-
lawful union-security clause. By insisting on the two employ-
ees’ discharge, for failure to comply with the terms of the
unlawful clause, Local 912 has violated Section 8(b)(2) of
the Act. Even if the clause was valid, because executed fol-
lowing a valid majority showing by Local 912, the Local
912’s demand and PBS’ compliance are unlawful because
the Union never gave the two employees proper notice of
their dues delinquency, including the amount of dues owed,
the method by which the sum was calculated, and that they
had until a reasonable date certain to pay before discharge.
NLRB v. Hotel Employees Local 568 (Philadelphia Sheraton
Corp.), 320 F.2d 254 (3d Cir. 1963); Helmsley-Spear, Inc.,
275 NLRB 262 (1985), and cases cited therein. Furthermore,
even if the clause was valid, PBS had a duty to investigate
whether Tucker’s claim of failure to tender or pay dues was
accurate. Birnbaum failed to make any inquiry even though
he was aware in particular of Bourne’s willingness to pay
dues himself. Its failure to make such an investigation prior
to the employees’ discharge was itself independently a viola-
tion of Section 8(a)(3) and (1) of the Act. Forsythe Hard-
wood Co., 243 NLRB 1039 (1979); Conductron Corp., 183
NLRB 419 (1970).
Alternately, by demanding their discharge for failure to
execute union dues-checkoff authorizations and without in-
forming them in writing of the amounts of dues owed, Local
912, and, by acceding to this demand, PBS, have each inde-
pendently violated Section 8(b)(2) and Section 8(a)(3) of the
Act, respectively. Such a demand and resulting discharge for
reasons other than the failure to tender the periodic dues and
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
initiation fees uniformly required as a condition of acquiring
or retaining membership is clearly unlawful under the lan-
guage of Section 8(b)(2).
By entering into and implementing the agreement with
Local 912, as of December 1, PBS has also unilaterally
modified the terms and conditions of employment of the unit
employees, thereby violating Section 8(a)(5) and (1) of the
Act. I also conclude that PBS violated the Act earlier on Oc-
tober 27, when it announced to the prospective employees,
then employed by its predecessor, that as to benefits, they
would be receiving the same wages, but that as to any other
benefits they presently enjoyed, everything would be starting
fresh the following day. I differ from counsel for the General
Counsel who claims that Birnbaum was ambiguous in an-
nouncing which benefits would or would not be continued
for the employees on the following day, while I found that
Birnbaum did make clear that the only benefit being contin-
ued was their same level of wages. Nonetheless, the teaching
of Burns Security Services, supra, is that Respondent PBS’
conduct on this occasion constituted an unlawful implemen-
tation of unilateral terms. As the Supreme Court noted in
Burns, 406 U.S. 272, at 294–295, ‘‘although a successor em-
ployer is ordinarily free to set initial terms on which it will
hire the employees of a predecessor, there will be instances
in which it is perfectly clear that the new employer plans to
retain all of the employees in the unit and in which it will
be appropriate to have him initially consult with the employ-
ees’ bargaining representative before he fixes terms.’’ I con-
clude that Birnbaum for PBS had determined to hire the full
complement of Ferlin maintenance employees on October 27,
merely requiring a single page written application form be
submitted on their reporting the following day. That form
was not reviewed and did not serve to weed out any of the
returning staff before they commenced work on October 28
for PBS. It was accordingly obligatory on PBS that it consult
Local 32-BJ before setting or implementing any terms or
conditions of employment for the employees.
Furthermore, given the uncertainty which also apparently
existed among the employees, evident from the testimony of
a number of them, as to whether they would continue to re-
ceive their existing benefits, ‘‘any uncertainty as to what Re-
spondent would have done absent its unlawful purpose must
be resolved against Respondent, since it cannot be permitted
to benefit from its unlawful conduct.’’ Fremont Ford Sales,
289 NLRB 1290 (1988) at 1297. See also Worcester Mfg.,
306 NLRB 218, 220 (1992). I therefore conclude that Re-
spondent was not free to unilaterally set new terms of em-
ployment.
CONCLUSIONS OF LAW
1. Respondent Planned Building Services, Inc. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent Local 912, United Commercial and Indus-
trial Workers Union, and Local 32B-32J, Service Employees
International Union, AFL–CIO are each a labor organization
within the meaning of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:
All building service employees employed at A. K.
Houses (112–126 East 128th Street, New York, N.Y.);
1775 Houses (107–129 East 126th Street and 290–2
Lexington Avenue, New York, N.Y.); 108 Tres Unidos
(1680 Madison Avenue and 22 East 112th Street, New
York, N.Y.); and M. S. Houses (107–123 East 129th
Street, New York, N.Y.), excluding all office clerical
employees, and guards, professional employees and su-
pervisors as defined in the Act.
4. By granting recognition to Respondent Local 912 on
October 28, 1992, and by entering into a collective-bargain-
ing agreement with Respondent Local 912 on December 1,
1992, containing a union-security provision requiring em-
ployees to become members of and maintain membership in
Respondent Local 912 as a condition of their employment
with Respondent Planned Building Services, and by deduct-
ing moneys from employees’ wages and remitting such mon-
eys to Respondent Local 912 notwithstanding the absence of
uncoerced employee authorizations for such deductions and
remittances, all at times when Respondent Local 912 did not
represent an uncoerced majority of employees in the unit de-
scribed in paragraph 3, above, Respondent Planned Building
Services has thereby unlawfully contributed support to a
labor organization in violation of Section 8(a)(1) and (2) of
the Act.
5. By terminating its employees Jeffrey Bourne and Frank
Graham from February 2, until February 8, 1993, at the re-
quest of Respondent Local 912, because they refused to sign
dues-checkoff authorization cards on behalf of Respondent
Local 912, or alternatively, by terminating the aforesaid em-
ployees for the period described, at the request of Respond-
ent Local 912, because they failed to tender the periodic dues
and initiation fees uniformly required as a condition of ac-
quiring or retaining membership in Respondent Local 912
pursuant to the collective-bargaining agreement described in
paragraph 4, above, or, because Respondent Planned Build-
ing Services had reason to believe that Respondent Local
912 demanded the employees’ termination for reasons other
than their failure to tender the periodic dues and initiation
fees required as a condition of acquiring or retaining mem-
bership in Respondent Local 912 and that Respondent Local
912 had failed to provide adequate notice to these employees
of the amounts that they owed, Respondent Planned Building
Services has thereby unlawfully encouraged membership in
a labor organization in violation of Section 8(a)(1), (2), and
(3) of the Act.
6. By failing and refusing since October 30, 1992, to rec-
ognize and bargain with Local 32B-32J, SEIU as the exclu-
sive collective-bargaining representative of its employees in
the unit described in paragraph 3, above, and, since that date,
by unilaterally modifying the terms and conditions of em-
ployment of the employees in the unit by unilaterally adopt-
ing initial terms and conditions of their employment and
since December 1, 1992, by applying the terms of the collec-
tive-bargaining agreement it entered into with Respondent
Local 912 to employees in the unit, Respondent Planned
Building Services has failed and refused to bargain collec-
tively and in good faith with the exclusive collective-bargain-
ing representative of its employees and has thereby been en-
gaging in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (5) of the Act.
1065PLANNED BUILDING SERVICES
3 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
4 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 deemed
waived for all purposes.
7. By accepting exclusive recognition as the representative
of Planned Building Services, Inc., employees in the unit at
a time when it did not represent an uncoerced majority of
the employees, Respondent Local 912 has been restraining
and coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act in violation of Section
8(b)(1)(A) of the Act.
8. By threatening employees that they could be discharged
by Respondent Planned Building Services, Inc., if they did
not sign cards for Respondent Local 912, by threatening em-
ployees with unspecified reprisals if they gave statements to
or sought assistance from the National Labor Relations
Board, and since December 1, 1992, by maintaining and en-
forcing with Respondent Planned Building Services, Inc., a
collective-bargaining agreement containing a union-security
provision requiring employees to become members of and
maintain membership in Respondent Local 912 as a condi-
tion of their employment with Respondent Planned Building
Services, Inc., and by accepting moneys deducted by Re-
spondent Planned Building Services, Inc., from the wages of
employees in the unit described in paragraph 3, above, not-
withstanding the absence of uncoerced employee authoriza-
tions for such deductions and remittances, all at times when
Respondent Local 912 did not represent an uncoerced major-
ity of employees in the unit, Respondent Local 912 has been
restraining and coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act in violation of Sec-
tion 8(b)(1)(A) of the Act.
9. By requesting that Respondent Planned Building Serv-
ices, Inc. terminate its employees Jeffrey Bourne and Frank
Graham because the employees failed to sign dues-checkoff
authorizations and without giving employees written notice
of the amounts owed in dues and initiation fees in order to
acquire or retain their membership in Respondent Local 912,
and by the discharge of the employees from February 2, to
February 8, 1993, pursuant to Respondent Local 912’s re-
quest, and at a time when it was not the lawfully recognized
exclusive collective-bargaining representative of the employ-
ees in the unit described in paragraph 3, above, Respondent
Local 912 has caused the Respondent Planned Building Serv-
ices, Inc. to encourage its employees to join Respondent
Local 912, and has thereby been attempting to cause, and
causing, an employer to discriminate against its employees in
violation of Section 8(a)(3) in violation of Section 8(b)(2) of
the Act.
THE REMEDY
Having found that both Respondents engaged in unfair
labor practices in violation of Section 8(a)(1), (2), (3), and
(5) and Section 8(b)(1)(A) and (2), I shall recommend that
they cease and desist therefrom and that they take the follow-
ing affirmative actions which are necessary to effectuate the
policies of the Act.
I shall recommend that PBS be ordered to cease and de-
sist, inter alia, from assisting Local 912 by recognizing or
bargaining with Local 912 with respect to the unit employees
unless and until Local 912 has been certified by the Board;
giving effect to the December 1, 1992 agreement with Local
912, or any extension or modification; making changes in
wages, hours, or other terms and conditions of employment
of unit employees without first giving notice and an oppor-
tunity to bargain to Local 32-BJ. I shall also recommend that
PBS be ordered to cease discharging employees because they
failed to sign union dues-deduction authorization cards or
they failed to pay dues under a union-security clause invalid
because based on a recognition of and agreement with a mi-
nority union; and cease deducting dues and fees from wages
of employees for Local 912 under such an agreement.
Affirmatively, I shall recommend that PBS be ordered to
recognize and bargain with Local 32-BJ as the exclusive rep-
resentative of the unit employees; cancel the unilateral
changes made in their terms and conditions of employment,
reinstate those which prevailed immediately before October
28, 1992, and make whole all past and present employees for
all lost earnings and benefits suffered as a result of such
changes, provided nothing in the order requires the with-
drawal or elimination of any wage increases or other bene-
fits, terms or conditions of employment more favorable to
employees under the December 1, 1992 agreement between
PBS and Local 912; jointly and severally with Local 912 re-
imburse all past and present PBS employees for all initiation
fees and dues paid by such employees to Local 912 pursuant
to the collective-bargaining agreement effective December 1,
1992, between PBS and Local 912; jointly and severally with
Local 912, make whole Jeffrey Bourne and Frank Graham
for any loss of earnings and benefits they may have suffered
by reason of the unlawful discrimination against them. All
payments made to employees shall be computed in accord-
ance with the method prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest thereon to be computed in
accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).3 Inasmuch as determination of the amounts due
to fringe benefit funds, both in contributions and penalties,
may be more difficult to compute, I will leave the determina-
tion of interest due on such payments to the compliance
stage of this proceeding. Merryweather Optical Co., 240
NLRB 1213 (1979).
I shall also recommend that Local 912 be ordered to cease
and desist from its unlawful conduct, and, affirmatively, that
it be ordered to, jointly and severally with PBS, reimburse
all past and present PBS employees for all initiation fees and
dues paid by such employees to Local 912 pursuant to the
collective-bargaining agreement effective December 1, 1992;
and jointly and severally with PBS make whole Bourne and
Graham, as described.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
A. The Respondent, Planned Building Services, Inc., Fair-
field, New Jersey, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Assisting Local 912, United Commercial and Industrial
Workers Union, or any other labor organization, by recogniz-
ing and bargaining with it as the representative of its em-
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
ployees for the purpose of collective bargaining, unless and
until such labor organization has been certified by the Na-
tional Labor Relations Board as the exclusive bargaining rep-
resentative of any such employees.
(b) Maintaining and giving any force and effect to the col-
lective-bargaining agreement with Local 912 which became
effective December 1, 1992, or any extension or modification
thereof, provided, however, that nothing in this order shall
authorize or require the withdrawal or elimination of any
wage increase or other benefits, terms, and conditions of em-
ployment more favorable to employees which may have been
established pursuant to such agreement.
(c) Making changes in the wages, hours of work, or other
terms and conditions of employment of unit employees with-
out first giving notice to Local 32B-32J, Service Employees
International Union, AFL–CIO of any such changes and af-
fording it an opportunity to bargain about such changes.
(d) Discriminating against employees by encouraging
membership in Local 912 or any other labor organization by
discharging employees because they fail to sign dues-deduc-
tion authorization cards, or because they fail to pay dues
under a union-security clause included in a collective-bar-
gaining agreement with Local 912 or any other labor organi-
zation entered into based on recognition accorded at a time
when such labor organization did not represent an uncoerced
majority of its employees in an appropriate unit.
(e) Deducting union dues and fees from the wages of em-
ployees for Local 912 or any other labor organization under
a dues-checkoff clause included in a bargaining agreement
with Local 912 or any other labor organization entered into
based on recognition accorded at a time when such labor or-
ganization did not represent an uncoerced majority of its em-
ployees in an appropriate unit.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Local 32B-32J
as the exclusive representative of the employees in the fol-
lowing appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement:
All building service employees employed at A. K.
Houses (112-126 East 128th Street, New York, N.Y.);
1775 Houses (107–129 East 126th Street and 290–2
Lexington Avenue and 22 East 112th Street, New York,
N.Y.); and M. S. Houses (107–123 East 129th Street,
New York, N.Y.), excluding all office clerical employ-
ees, and guards, professional employees and supervisors
as defined in the Act.
(b) On Local 32B-32J’s request, cancel the unilateral
changes made in the terms and conditions of employment of
unit employees and reinstate the terms which prevailed in the
unit immediately before October 28, 1992, and make whole
all past and present employees for all lost earnings and bene-
fits suffered as a result of such changes with interest, in the
manner set forth in the remedy section in this decision, pro-
vided, however, that nothing in this order shall authorize or
require the withdrawal or elimination of any wage increases
or other benefits, terms, and conditions of employment more
favorable to employees which may have been established
pursuant to the bargaining agreement with Local 912 effec-
tive on December 1, 1992.
(c) Jointly and severally with Local 912 reimburse all past
and present employees for all initiation fees and dues paid
by such employees to Local 912 pursuant to the collective-
bargaining agreement with Local 912 effective December 1,
1992, and jointly and severally with Local 912, make whole
Jeffrey Bourne and Frank Graham for any loss of earnings
and benefits they may have suffered by reason of the unlaw-
ful discrimination against them, plus interest for all such re-
imbursements and loss of earnings and benefits, in the man-
ner set forth here in the remedy section of this decision.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of reimbursement of dues, other moneys, and back-
pay due under the terms of this Order.
(e) Post at its facilities in the Borough of Manhattan, City
and State of New York, copies of the attached notice marked
‘‘Appendix A.’’5 Copies of the notice, on forms provided by
the Regional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(f) Post at the same places and under the same conditions
set forth in (e) above, as they are forwarded by the Regional
Director, copies of Respondent Local 912’s notice marked
‘‘Appendix B.’’
(g) Mail signed copies of the attached notice marked ‘‘Ap-
pendix A’’ for posting at Respondent Local 912’s offices and
meeting halls.
(h) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
B. The Respondent, Local 912, United Commercial and
Industrial Workers Union, AFL–CIO, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Accepting recognition from Planned Building Services,
Inc. or any other employer and entering into and giving ef-
fect to collective-bargaining agreements, at a time when it
does not represent an uncoerced majority of employees in an
appropriate unit, including the agreement with Planned
Building Services which was effective on December 1, 1992,
and any extensions or modifications thereof.
(b) Agreeing to, maintaining, and enforcing a union-secu-
rity provision requiring membership in Local 912 at a time
when it does not represent an uncoerced majority of employ-
ees in an appropriate bargaining unit.
1067PLANNED BUILDING SERVICES
6 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.’’
(c) Acting as the exclusive collective-bargaining represent-
ative of the employees in the unit of building service em-
ployees of Planned Building Services, Inc., employed in the
Manhattan facilities, unless and until Respondent Local 912
has been certified by the National Labor Relations Board as
the exclusive bargaining representative of such employees.
(d) Causing or attempting to cause Planned Building Serv-
ices, Inc. or any other employer to discharge or otherwise
discriminate against employees with respect to their tenure of
employment or terms and conditions of employment based
on such employees’ failure to sign union-dues deduction au-
thorization forms, or in an attempt to enforce the union-secu-
rity provisons of any collective-bargaining agreement entered
into based on recognition accorded at a time when Local 912
did not represent an uncoerced majority of employees of the
employer in an appropriate unit.
(e) Accepting union dues paid by employees pursuant to
the bargaining agreement with Planned Building Services
Inc., effective December 1, 1992.
(f) Threatening employees with loss of employment or any
other reprisals in an attempt to force them into signing mem-
bership or dues-deduction cards for Local 912, or to discour-
age them from giving statements to the National Labor Rela-
tions Board, or to discourage them from supporting or sign-
ing membership cards for Local 32B-32J or any other labor
organization.
(g) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Jointly and severally with Planned Building Services,
Inc. reimburse all past and present PBS employees for all
initiation fees and dues paid by such employees to Local 912
pursuant to the collective-bargaining agreement effective De-
cember 1, 1992, between Local 912 and PBS in the manner
set forth in the remedy section of this decision.
(b) Jointly and severally with Planned Building Services,
Inc., make whole Jeffrey Bourne and Frank Graham for lost
earnings and benefits suffered as a result of the unlawful dis-
crimination against them, in the manner set forth in the rem-
edy section of this decision.
(c) Post at its offices and meeting halls copies of the at-
tached notice marked ‘‘Appendix B.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 2,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Post at the same places and under the same conditions
as set forth in (c) above, as they are forwarded by the Re-
gional Director, copies of Respondent Planned Building
Services, Inc.’s notice marked ‘‘Appendix A.’’
(e) Mail signed copies of the attached notice marked ‘‘Ap-
pendix B’’ to the Regional Director for posting at Respond-
ent Planned Building Services, Inc.’s facilities in the Bor-
ough of Manhattan, City and State of New York.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relatons Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT accept recognition from Planned Building
Services, Inc. or any other employer or enter into or give ef-
fect to collective-bargaining agreements, at a time when we
do not represent an uncoerced majority of employees in an
appropriate unit, including our agreement with Planned
Building Services, Inc., effective December 1, 1992, and any
extensions or modifications thereof.
WE WILL NOT agree to, maintain, and enforce a union-se-
curity provision requiring membership in our union at a time
when we do not represent an uncoerced majority of employ-
ees in an appropriate bargaining unit.
WE WILL NOT act as the exclusive collective-bargaining
representative of the unit of building service employees of
Planned Building Services, Inc. unless and until we have
been certified by the National Labor Relations Board as the
exclusive bargaining representative of such employees.
WE WILL NOT cause or attempt to cause Planned Building
Services or any other employer to discharge or otherwise dis-
criminate against employees with respect to their tenure, or
terms and conditions, of employment based on such employ-
ees’ failure to sign union dues-deduction authorization forms,
or in an attempt to enforce the union-security provisions of
any collective-bargaining agreement entered into based on
recognition accorded at a time when we did not represent an
uncoerced majority of employees of the employer in an ap-
propriate unit.
WE WILL NOT accept union dues paid by employees pursu-
ant to our collective-bargaining agreement with Planned
Building Services, Inc., effective December 1, 1992.
WE WILL NOT threaten employees with loss of employ-
ment or any other reprisals in an attempt to force them into
signing membership or dues-deduction forms for Local 912,
or to discourage them from giving statements to the National
Labor Relations Board, or to discourage them from support-
ing or signing membership cards for Local 32B-32J, Service
Employees International Union, AFL–CIO or any other labor
organization.
WE WILL NOT in any like or related manner restrain or co-
erce you in the exercise of the rights guaranteed you by Sec-
tion 7 of the Act.
WE WILL, jointly and severally with Planned Building
Services Inc., reimburse all past and present PBS employees
for all initiation fees and dues paid by such employees to us
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pursuant to our collective-bargaining agreement with PBS,
effective December 1, 1992, plus interest.
WE WILL, jointly and severally with Planned Building
Services, make whole Jeffrey Bourne and Frank Graham for
lost earnings and benefits suffered as a result of our unlawful
discrimination against them, plus interest.
LOCAL 912, UNITED COMMERCIAL AND IN-
DUSTRIAL WORKERS UNION