Staten Island Hotel

National Labor Relations Board - Board Decisions

Aug 29, 1995

318 N.L.R.B. 850 (N.L.R.B. 1995)

850
318 NLRB No. 90
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find that the wit-
ness testimony relied on by the Respondent in support of its excep-
tions was implicitly discredited by the judge.
The Respondent has also excepted to the judge’s decision asserting
that it evidences bias and prejudice. On our full consideration of the
entire record in these proceedings, we find no evidence that the
judge prejudged the case, made prejudicial rulings, or demonstrated
impermissible bias against the Respondent in his analysis and discus-
sion of the evidence.
1 The evidence shows that, but for the Respondent’s discriminatory
practices, it would have hired its entire complement of employees
from the predecessor’s employees. See Canteen Co., supra at fns. 5
and 6 of the dissent.
1 All dates refer to 1994 unless otherwise specified.
The Staten Island Hotel Limited Partnership d/b/a
The Staten Island Hotel and Leonora Devito
The Staten Island Hotel Limited Partnership d/b/a
The Staten Island Hotel and New York Hotel
and Motel Trades Council, AFL–CIO. Cases
29–CA–18064 and 29–CA–18271
August 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On April 17, 1995, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, The Staten Island Hotel
Limited Partnership d/b/a The Staten Island Hotel,
Staten Island, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
MEMBER COHEN, concurring.
As set forth in the dissent in Canteen Co., 317
NLRB 1052 (1995), I would find that a successor em-
ployer has an obligation to bargain over initial terms
if, inter alia, it fails to announce to the predecessor em-
ployees, prior to or simultaneously with an uncondi-
tional offer of hire, that the initial terms will differ
from those of the predecessor. Here, the Respondent
failed to establish that it informed the predecessor’s
employees of the new terms. Thus, I agree that the Re-
spondent was not privileged to set new terms unilater-
ally and that the make-whole remedy must be based on
the predecessor’s terms.1
April M. Wexler, Esq., for the General Counsel.
Joseph S. Rosenthal, Esq. and Jacqueline I. Meyer, Esq.
(Bondy & Schloss), of New York, New York, for the Re-
spondent.
Barry N. Saltzman, Esq. (Richards & O’Neil), of New York,
New York, for the Union.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in New York City on November 14,
15, 16, and 21, 1994,1 and on January 30, 1995. Upon
charges filed on March 16 and May 25, a consolidated com-
plaint was issued on May 31, 1994, alleging that The Staten
Island Hotel Limited Partnership, d/b/a The Staten Island
Hotel (Respondent) violated Section 8(a)(1), (3), and (5) of
the National Labor Relations Act. Respondent filed an an-
swer denying the commission of the alleged unfair labor
practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by the parties
on December 23, 1994. A supplemental memorandum was
filed by the General Counsel on February 22, 1995, and a
supplemental brief was filed by Respondent on February 24,
1995.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a limited partnership with its principal office
and place of business in Staten Island, New York, operates
a hotel. Respondent admits, and I so find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. In addition, it has been admitted
and I find, that New York Hotel and Motel Trades Council,
AFL–CIO (the Union) is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
In 1991 Bruce Behrins was appointed receiver of the Holi-
day Inn of Staten Island (Statland). Behrins operated the
hotel under the receivership until January 31, 1994. During
this time Behrins employed Quest Management to manage
851STATEN ISLAND HOTEL
the hotel. Christien Ducker served as managing agent. On
February 1 Respondent took over the premises and installed
Stanley Friedman as the managing agent. The hotel was
closed for renovations from February 1 until March 1. The
employees of Statland, including front desk employees,
switchboard operators, room attendants, and maintenance em-
ployees, were represented by the Union and its various mem-
ber locals. They were covered by one collective-bargaining
agreement between the Union and Hotel Association of New
York City, Inc., an employer association that bargained on
behalf of Statland, in a single unit. While the hotel was in
receivership the receiver honored the collective-bargaining
agreement between the hotel and the Union.
2. Role of Stanley Friedman
Stanley Friedman, a former deputy mayor of New York
City and Bronx Democratic county chairman served a prison
sentence, which ended in 1992. As he was about to be re-
leased from prison, Gene Prescott, a long-time friend, invited
him to join his company ‘‘to look for new acquisitions.’’ In
1993 it came to Friedman’s attention that the Holiday Inn of
Staten Island was in receivership. Friedman discussed with
Prescott the possibility of buying the property. During 1993
Prescott decided to put in a bid to purchase Home Savings
Bank’s interest in the hotel. The contract was executed on
December 7, 1993.
Behrins credibly testified that in November 1993 Friedman
telephoned him and introduced himself as ‘‘a principal in the
entity that was purchasing the hotel.’’ Friedman asked
Behrins to ‘‘think about terminating’’ the employees. Behrins
credibly testified that in December 1993 Friedman again tele-
phoned and told him that they were going to close the deal
with the bank and asked Behrins to ‘‘terminate the employ-
ees.’’ Behrins replied that he would not do so.
Christien Ducker appeared to me to be a credible witness.
As stated above, she had been serving as managing agent of
the hotel under the receivership. She credibly testified that on
January 26, 1994, Friedman telephoned her and told her to
recommend to the employees that if they had any questions
about the hotel’s closing, ‘‘they should contact their union
delegates and have their union delegates contact Mr. Fried-
man directly.’’ On January 27 she met with Friedman to dis-
cuss the employees and give her recommendations. She
credibly testified:
When I got through Lee DeVito and I said . . . I
thought she was excellent and she was good for front
desk manager position, but she was union delegate.
And Mr. Friedman said that that settled it, that he
wasn’t going to hire anybody from the union.
Friedman became General Manager of the hotel on July 1.
Respondent contends that until that time Friedman was mere-
ly a ‘‘trainee’’ and was not involved in the hiring process.
I find Respondent’s contention hard to believe. In November
1993 when Friedman called Behrins he introduced himself as
‘‘a principal in the entity that was purchasing the hotel.’’
Behrins also credibly testified that in November 1993 Fried-
man asked him to consider terminating the employees and in
December he asked him to actually terminate the employees.
Although Friedman testified that he asked Behrins to termi-
nate the employees at the time Respondent took title, the fact
that Friedman asked that the employees be terminated,
whether in December or a month later, is hardly a request
that would be made by a ‘‘trainee.’’
Respondent’s answer admitted paragraph 6(a) of the com-
plaint that states ‘‘Stanley Friedman is now and has been at
all times material herein, the Managing Agent of Respond-
ent, and an agent thereof, acting on its behalf.’’ As Friedman
testified, after the contract was signed on December 7, 1993,
Prescott told him ‘‘you really want to work full-time. This
is your baby. You found it.’’ Although the testimony is un-
clear whether certain employees were hired by Friedman or
Alfred Wiles, Friedman stated in an affidavit submitted to
the Board that he, together with Wiles, were ‘‘involved in
the hiring of . . . supervisory personnel.’’
Friedman located the property and suggested it to Prescott.
After the contract was signed Prescott told Friedman you
‘‘found’’ it, this is your ‘‘baby.’’ When Friedman telephoned
Behrins in November 1993 he introduced himself as the
‘‘principal in the entity purchasing the hotel.’’ Although
Friedman may have been learning the procedures in running
a hotel he was hardly a mere ‘‘trainee.’’ I credit Ducker’s
testimony that Friedman told her that ‘‘he wasn’t going to
hire anybody from the union’’ and find that he was acting
as an agent of Respondent and that this statement is attrib-
utable to Respondent.
3. Statements of Buraus
Donald Buraus, an employee of the hotel while it was
under receivership, was hired by Respondent as chief engi-
neer. Leonora DeVito, a former front desk clerk of the hotel
and formerly a shop steward, credibly testified that she had
a conversation with Buraus on February 3. She stated that
they were talking about the Union and Buraus told her ‘‘they
were only hiring 18 people and none of them would be
union, or anybody that was there a long time, especially shop
stewards.’’ The Union began picketing at the hotel on Feb-
ruary 23. DeVito credibly testified that during the second
week of March, Buraus came to the picket line and told sev-
eral of the persons on the picket line that Respondent
‘‘wouldn’t hire any union workers, anybody there for many
years . . . especially shop stewards.’’ Similarly, Edward
Sabella, a former maintenance employee and former shop
steward, testified that in March, while he was on the picket
line, Buraus told several of the persons on the line ‘‘[Y]ou
know, you’re not going to get your jobs back.’’ After Sabella
asked, ‘‘[W]hat are you talking about’’ and said, ‘‘[W]e
filled out applications there,’’ Buraus answered, ‘‘[O]h, no,
especially you guys . . . any shop stewards or Union dele-
gates, they’re not taking you guys back cause they don’t
want any Union in this place . . . .’’ Doris Long, a former
room attendant and union delegate, corroborated this testi-
mony. The complaint, as amended, alleges that on February
3, and again in March, Buraus informed employees that Re-
spondent would not hire any employees who were union del-
egates. I have credited the testimony of DeVito, Sabella, and
Long and find that on February 3, and again in March,
Buraus informed employees that Respondent would not hire
any employees who were union delegates.
852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Respondent filed a request with the Board for special permission
to appeal my order reopening the record. On January 26, 1995, the
Board affirmed the order to reopen the record.
3 The General Counsel’s supplemental memorandum states that the
three witnesses personally saw ‘‘all but six’’ of the former employ-
ees submitting applications. In addition to the six employees speci-
fied in General Counsel’s memorandum, I do not find in the record
that the witnesses specifically identified Terry Benway and George
Nyonde as having submitted applications.
4. Applications
During February Respondent ran newspaper advertise-
ments that it would be accepting applications for positions at
the hotel from February 15 through February 17. DeVito
credibly testified that she filled out an application on the first
day that Respondent was taking applications and that ‘‘a
whole bunch of us went down there on the first . . . Tues-
day they were taking applications.’’ Respondent’s witness,
Angela Rees, testified that she received ‘‘maybe 25’’ appli-
cations from former employees. After Doris Long testified
that she mailed the application to Respondent, Respondent’s
counsel, Joseph Rosenthal, stated, ‘‘[W]e stipulate that we
received this woman’s application.’’ Rosenthal continued:
If you had given me a list of all of them and asked me
to stipulate, I would have done that too . . . the issue
is not whether we received, the issue is whether or not
we refused to consider hiring them.
In its initial brief Respondent stated for the first time ‘‘Gen-
eral Counsel’s presentation of the case is fatally flawed be-
cause no evidence was presented that 27 of the paragraph 12
employees ever applied for a job with Respondent.’’ On the
other hand, the General Counsel’s initial brief stated, ‘‘it is
indisputed that . . . a majority of the former employees sub-
mitted applications to Respondent for employment.’’ On De-
cember 30 I issued an Order, stating in pertinent part:
It is apparent that General Counsel and Counsel for Re-
spondent take differing views of Mr. Rosenthal’s state-
ment. In order to resolve the ambiguity, I believe it is
necessary to reopen the record for the sole purpose of
either receiving into evidence a written stipulation con-
cerning the above or adduce testimony or exhibits at a
further hearing.
The parties were not able to agree to a stipulation and ac-
cordingly on January 30, 1995, the hearing was reopened for
the ‘‘sole purpose of adducing evidence concerning applica-
tions submitted by the former employees.’’2 At the start of
the hearing the General Counsel requested the production of
documents that had been subpoened from Respondent. Spe-
cifically, the General Counsel requested ‘‘all applications for
employment received from former employees of the Staten
Island Hotel from January 31, 1994 to present.’’ Respondent
moved to quash the subpoena, which I denied. Respondent
refused to produce the applications.
I credit the testimony of DeVito, Dorothy Spearman, and
Long that between 30 and 40 former employees submitted
applications for employment. They credibly testified that they
personally saw all but eight3 of the former employees filling
out applications for employment. They did not see, however,
the following eight employees fill out applications: Terry
Benway, James Brown, Tina Carlson, Brunilda Feal, Colleen
Kenny, George Nyonde, Joseph Pedre, and Eva Vasser. The
General Counsel has asked that I draw an adverse inference
by virtue of the fact that Respondent refused to comply with
the subpoena. In Auto Workers v. NLRB, 459 F.2d 1329,
1338 (D.C. Cir. 1972), the court stated:
But while the adverse inference rule in no way depends
upon the existence of a subpoena, it is nontheless true
that the willingness of a party to defy a subpoena in
order to suppress the evidence strengthens the force of
the preexising inference. Indeed, in some circumstances
the defiance of a subpoena may justify striking a de-
fense . . . . The reason why existence of a subpoena
strengthens the force of the inference should be obvi-
ous. If a party insists on withholding evidence even in
the face of a subpoena requiring its production, it can
hardly be doubted he has some good reason for his in-
sistence on suppression. Human experience indicates
that the most likely reason for this insistence is that the
evidence will be unfavorable to the cause of the sup-
pressing party.
I note counsel for Respondent’s original statement on the
record that ‘‘the issue is not whether we received, the issue
is whether or not we refused to consider hiring’’ the former
employees. I have credited the testimony of DeVito,
Spearman, and Long that they personally saw all but eight
of the former employees filling out applications for employ-
ment. I further note that at no time did Respondent deny that
the former employees submitted applications. With respect to
the eight former employees mentioned above, I draw an ad-
verse inference and conclude that the ‘‘most likely reason’’
for Respondent’s refusal to produce the applications is that
the ‘‘evidence will be unfavorable to the cause of the sup-
pressing party.’’ See Auto Workers v. NLRB, id.
5. Refusal to consider for employment and
refusal to hire
The complaint alleges that Respondent refused to consider
for employment 30 former employees of Statland and it has
refused to hire 15 of them to fill 15 available positions. I
have already found that on January 27 Friedman told Ducker
that ‘‘he wasn’t going to hire anybody from the union.’’ I
have also found that on February 3 Buraus told DeVito that
‘‘they were only hiring 18 people and none of them would
be union, or anybody that was there a long time, especially
shop stewards.’’ Long and DeVito were former front desk
employees and former shop stewards. Although Ducker high-
ly recommended them, they were not hired by Respondent.
In addition, Wiles testified that the predecessor hotel had
been operating ‘‘poorly,’’ that ‘‘it was not being managed
well’’ and that the ‘‘physical condition of the hotel was un-
acceptable.’’ When asked whether he considered the rec-
ommendations that Ducker gave to Friedman, he testified,
‘‘given the unacceptable management that I observed at the
hotel prior to our acquisition, I placed no weight on those
comments or that list and therefore did not use that list in
the hiring process.’’ Yet, Wiles hired Baurus and Janice
Chrystie, two former Statland managers. Thus, while sup-
posedly Wiles was dissatisfied with the ‘‘unacceptable man-
agement’’ of the predecessor, he hired two of the former
managers.
853STATEN ISLAND HOTEL
4 On February 3 Union Attorney Vincent Pitta requested that Re-
spondent recognize and bargain with the Union. Joseph Rosenthal,
on behalf of Respondent, denied the request. Respondent contends
that since, at the time the request was made Respondent was under
no obligation to bargain, Respondent did not violate the Act by re-
fusing to bargain at that time ‘‘or thereafter.’’ I disagree. I believe
that the Union’s request for recognition and bargaining is deemed to
be continuing in nature. See Scotts IGA Foodliner, 223 NLRB 394,
413 (1976), enfd. mem. 549 F.2d 805 (7th Cir. 1977); Highland
Plastics, Inc., 256 NLRB 146, 164 fn. 76 (1981).
In addition, Baurus testified that he did not consider hiring
Sabella because of arguments he had with him and because
‘‘we always had a problem with his work.’’ Although Baurus
had recommended that Sabella be discharged, however, he in
fact was not discharged. Furthermore, Baurus testified that in
filling the maintenance position, he was looking for someone
who had a fire safety certification and air conditioning expe-
rience. Although Sabella was fire safety certified and knew
the air conditioning system at the Staten Island Hotel, he was
not hired. Instead Vincent Martinucci, who was not fire safe-
ty certified and who did not know the air conditioning sys-
tem at the Staten Island Hotel was hired. Rees, who inter-
viewed applicants for housekeeping and front desk positions,
was unclear about exactly what criteria she used in the hiring
process. She appeared to make the incredulous assertion that
neatness in filling out the application outweighed prior hotel
work experience. In examining Respondent’s arguments as to
why it failed to hire the former Statland employees, I find
that Respondent has not satisfied its burden of demonstrating
that the ‘‘same action would have taken place even in the
absence of the protected conduct.’’ See Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 663 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
6. Successorship
I find that Respondent refused to consider for hiring the
former Statland employees because of their union member-
ship and in order to avoid a bargaining obligation with the
Union. This constitutes a violation of Section 8(a)(1) and (3)
of the Act. See Shortway Suburban Lines, 286 NLRB 323
(1987), enfd. 862 F.2d 309 (3d Cir. 1988).
In Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27 (1987), the Supreme Court held that in determining
whether an employer is a successor, the focus is on whether
there is a ‘‘substantial continuity’’ between the new and the
prior enterprises The Court stated id. at 43:
Under this approach, the Board examines a number of
factors: whether the business of both employers is es-
sentially the same; whether the employees of the new
company are doing the same jobs in the same working
conditions under the same supervisors; and whether the
new entity has the same production process, produces
the same products, and basically has the same body of
customers.
Respondent acquired the hotel and resumed operations
after a 1-month hiatus for renovations. Respondent is en-
gaged in the same business as Statland and operates at the
same location. It provides the same services as its prede-
cessor and employs some of the same supervisors. It has the
same categories of jobs under the same or similar working
conditions. But for Respondent’s unlawful refusal to hire
former Statland employees because of their union member-
ship, a majority of Respondent’s unit employees would have
been former Statland employees. I find that Respondent is a
successor to Statland and as such is obligated to recognize
and bargain with the Union.4 See NLRB v. Burns Security
Services, 406 U.S. 272 (1972); Love’s Barbeque Restaurant,
245 NLRB 78, 82 (1979), enfd. in relevant part 640 F.2d
1094 (9th Cir. 1981); Shortway Suburban Lines, supra, 286
NLRB at 328.
7. Unilateral changes
A successor employer is ordinarily free to set the initial
terms on which it will hire the predecessor’s employees. This
rule does not apply, however, when the successor has unlaw-
fully failed to hire those employees because of their union
affiliation. Shortway Suburban Lines, supra, 286 NLRB at
328; see also Weco Cleaning Specialists, 308 NLRB 310
(1992). Therefore, Respondent was not entitled to set the ini-
tial terms of employment without first consulting the Union.
It is uncontested that Respondent did not bargain with the
Union and unilaterally changed working conditions by elimi-
nating the pension and welfare funds and other benefits pro-
vided by the collective-bargaining agreement between
Statland and the Union. By making these unilateral changes
Respondent violated Section 8(a)(1) and (5) of the Act. See
Love’s Barbecue Restaurant, supra, 245 NLRB at 82.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees employed by Respondent at
its Staten Island facility constitute a unit appropriate for the
purposes of collective bargaining within the meaning of the
Act:
Front desk clerks, desk clerks, housemen, room attend-
ants, laundry employees and maintenance employees,
excluding executives, superintendents, department man-
agers, assistant department managers, guards and super-
visors within the meaning of the Act.
4. At all times material herein the Union has been the ex-
clusive representative of the employees in the above-de-
scribed unit for the purposes of collective bargaining within
the meaning of the Act.
5. By refusing to hire employees formerly employed by its
predecessor, Statland Holiday Associates, because of their
union affiliation, and to avoid an obligation to bargain with
the Union, Respondent has violated Section 8(a)(1) and (3)
of the Act.
6. Respondent is a successor employer to Statland Holiday
Associates and by failing to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the employees of the above unit, and by making unilateral
changes without prior notification to and consultation with
the Union, Respondent has violated Section 8(a)(1) and (5)
of the Act.
854 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I find that two former Statland employees, Kevin Hefty, and Jo-
seph Guerreri, were offered employment. I credit Burbridge’s testi-
mony that she offered the position of night auditor to Guerreri. The
testimony was unrefuted. Similarly, Dogra credibly testified that she
offered Hefty a job as houseman. Her testimony was also unrefuted.
6 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. Sec. 6621.
Respondent contends that backpay should not be set at the wage
rate paid by the prior employer. In Shortway Suburban Lines, supra
at 286 NLRB at 329 fn. 36, the Board ordered backpay to be based
on either the rate structure prevaling under the prior employer or the
new rate structure established by Respondent, ‘‘whichever results in
the higher backpay to the individual employees.’’ I recommend that
the same formula apply in this proceeding. See State Distributing
Co., 282 NLRB 1048 (1987).
7 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 informing employees that Respondent would not
hire any employees who were union delegates Respondent
has violated Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order Respondent
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent refused to consider for hir-
ing and refused to hire former employees of Statland Holiday
Associates, I shall order that Respondent offer to the employ-
ees listed below immediate and full employment, without
prejudice to their seniority and other rights previously en-
joyed, discharging if necessary any employees hired in their
place. If Respondent does not have sufficient positions avail-
able the remaining employees shall be placed on a pref-
erential hiring list. The below listed employees5 shall be
made whole for any loss of earnings they may have suffered
due to the discrimination practiced against them. The back-
pay period commences on March 1, 1994, and shall be com-
puted in accordance with the formula approved in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).6
In addition, I shall order the Respondent to cancel, on re-
quest by the Union, unilateral changes in rates of pay and
benefits or other terms and conditions of employment, and
make the employees whole by remitting all wages and bene-
fits that would have been paid absent such unilateral changes
from March 1, 1994, until Respondent negotiates in good
faith with the Union to agreement or to impasse. The remis-
sion of wages shall be computed as provided in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th
Cir. 1971), plus interest as prescribed in New Horizons,
supra. Respondent shall also remit all payments it owes to
the employee benefit funds and reimburse its employees for
any expenses resulting from the failure to make these pay-
ments in the manner set forth in Kraft Plumbing & Heating,
252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th
Cir. 1981). Any amounts that Respondent must pay into the
benefit funds shall be determined in the manner set forth in
Merryweather Optical Co., 240 NLRB 1213 (1979). The em-
ployees are:
April Bedford Carmen Gonzales
Olga Bencibi Eunice Mattu Hall
Terry Benway Colleen Kenny
Keith Blackman Courteney Lewis
James Brown Doris Long
Tina Carlson Marie Marshall
Jimmy DeSouza Connie Mehmedagic
Leonora DeVito George Nyonde
Lola Diamontis Joseph Pedre
Theresa Fasano Edward Sabella
Brunilda Feal Dorothy Spearman
Jason Fodor Lillian Vincente
Linda Gardner Eva Vasser
Evelyn Goodridge Dee Wranovics
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, The Staten Island Hotel Limited Partner-
ship, d/b/a The Staten Island Hotel, Staten Island, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire employees because of their union af-
filiation and to avoid an obligation to bargain with the
Union.
(b) Refusing to recognize and bargain with New York
Hotel and Motel Trades Council, AFL–CIO as the exclusive
collective-bargaining representative of its employees in the
following appropriate unit:
Front desk clerks, desk clerks, housemen, room attend-
ants, laundry employees and maintenance employees
employed at Respondent’s Staten Island facility, exclud-
ing executives, superintendents, department managers,
assistant department managers, guards and supervisors
within the meaning of Act.
(c) Unilaterally changing wages, hours, pension and wel-
fare contributions, or any other term and condition of em-
ployment of its employees in the above unit without notify-
ing and bargaining with the Union.
(d) Informing employees that Respondent would not hire
any employee who was a union delegate.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer to the employees listed below formerly employed
by Statland Holiday Associates immediate and full employ-
ment without prejudice to their seniority and other rights pre-
viously enjoyed, discharging if necessary any employees
hired in their place. If Respondent does not have sufficient
855STATEN ISLAND HOTEL
8 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.’’
positions available the remaining employees shall be placed
on a preferential hiring list. The employees are:
April Bedford Carmen Gonzales
Olga Bencibi Eunice Mattu Hall
Terry Benway Colleen Kenny
Keith Blackman Courteney Lewis
James Brown Doris Long
Tina Carlson Marie Marshall
Jimmy DeSouza Connie Mehmedagic
Leonora DeVito George Nyonde
Lola Diamontis Joseph Pedre
Theresa Fasano Edward Sabella
Brunilda Feal Dorothy Spearman
Jason Fodor Lillian Vincente
Linda Gardner Eva Vasser
Evelyn Goodridge Dee Wranovics
(b) Make whole, with interest, the above-named employees
for any loss of earnings and benefits they may have suffered
by reason of the Respondent’s discrimination against them in
the manner set forth in the remedy section above.
(c) Recognize and, on request, bargain collectively with
the Union as the exclusive representative of its employees in
the above-described unit, with respect to rates of pay, wages,
hours, and other terms and conditions of employment, and if
an understanding is reached, embody it in a signed agree-
ment.
(d) Upon request of the Union cancel any changes from
the rates of pay and benefits or other terms and conditions
of employment that existed prior to January 31, 1994, and
make the employees whole by remitting all wages and bene-
fits that would have been paid absent such changes from
March 1, 1994, until Respondent negotiates in good faith
with the Union to agreement or to impasse in the manner set
forth in the remedy section above.
(e) Preserve, and upon 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 amounts owing under the terms of this Order.
(f) Post at its facility in Staten Island, New York, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 29, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately 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.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to hire employees because of their
union affiliation and to avoid an obligation to bargain with
the Union.
WE WILL NOT refuse to recognize and bargain with New
York Hotel and Motel Trades Council, AFL–CIO as the ex-
clusive collective-bargaining representative of our employees
in the following appropriate unit:
Front desk clerks, desk clerks, housemen, room attend-
ants, laundry employees and maintenance employees
employed at our Staten Island facility, excluding execu-
tives, superintendents, department managers, assistant
department managers, guards and supervisors within the
meaning of the Act.
WE WILL NOT unilaterally change wages, hours, pension
and welfare contributions, or any other term and condition of
employment of our employees in the above unit without noti-
fying and bargaining with the Union.
WE WILL NOT inform employees that we will not hire any
employee who was a union delegate.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce employees in the exercise of their rights
under Section 7 of the Act.
WE WILL offer to the employees listed below, formerly
employed by Statland Holiday Associates, immediate and full
employment without prejudice to their seniority and other
rights previously enjoyed, discharging if necessary any em-
ployees hired in their place. If we do not have sufficient po-
sitions available, the remaining employees shall be placed on
a preferential hiring list. The employees are:
April Bedford Carmen Gonzales
Olga Bencibi Eunice Mattu Hall
Terry Benway Colleen Kenny
Keith Blackman Courteney Lewis
James Brown Doris Long
Tina Carlson Marie Marshall
Jimmy DeSouza Connie Mehmedagic
Leonora DeVito George Nyonde
Lola Diamontis Joseph Pedre
Theresa Fasano Edward Sabella
Brunilda Feal Dorothy Spearman
Jason Fodor Lillian Vincente
Linda Gardner Eva Vasser
Evelyn Goodridge Dee Wranovics
WE WILL make whole the above-named employees for any
loss of earnings and benefits they may have suffered by rea-
son of the Respondent’s discrimination against them, with in-
terest.
WE WILL recognize, and upon request, bargain collectively
with the Union as the exclusive representative of the employ-
856 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees in the above-described unit, with respect to rates of pay,
wages, hours and other terms and conditions of employment,
and if an understanding is reached, embody it in a signed
agreement.
WE WILL, upon request of the Union, cancel any changes
from the rates of pay and benefits or other tems and condi-
tions of employment that existed prior to January 31, 1994,
and make the employees whole by remitting all wages and
benefits that would have been paid absent such changes from
March 1, 1994, until we negotiate in good faith with the
Union to agreement or to impasse.
THE STATEN ISLAND HOTEL LIMITED PART-
NERSHIP D/B/A THE STATEN ISLAND HOTEL