Systems Management, Inc

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1075 (N.L.R.B. 1989)

SYSTEMS MANAGEMENT
Systems Management , Inc and Service Employees
International Union, Local 29 , AFL-CIO and
International Brotherhood of Painters and
Allied Trades of the United States and Canada,
Local 327, AFL-CIO, Party to the Contract
First Union Management , Inc and Service Employ-
ees International Union , Local 29, AFL-CIO
International Brotherhood of Painters and Allied
Trades of the United States and Canada, Local
327, AFL-CIO and Service Employees Interne
tional Union , Local 29 , AFL-CIO and Systems
Management , Inc, Party to the Contract Cases
6-CA-19321, 6-CA-19465, 6-CA-19407, 6-
CB-7147, and 6-CB-7194
February 14, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On March 9, 1988, Administrative Law Judge
Thomas R Wilks issued the attached decision Re
spondent Systems Management, Inc (Systems)
filed exceptions and a supporting brief The Gener
al Counsel filed a brief in answer and a brief in
support of limited cross-exceptions Systems filed
an answering brief and Respondent First Union
Management, Inc answered the General Counsel's
cross-exceptions i First Union also filed a motion
to sever cases and the General Counsel filed an op-
position
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings 2 and
i The General Counsels cross-exceptions are timely pursuant to the
Board s Rules and Regulations Sec 102 46(e)
2 In adopting the judge s finding that Respondent Systems Manage
ment Inc violated Sec 8 (ax3) and (1) by discriminatorily refusing to
hire the predecessor employees at the 300 Sixth Avenue building we rely
on the fact that Systems decided that the building s employees would be
represented by Painters Local 327 before executing its service contract
and before hiring any employees to staff the building We also note that
Systems alleged past practice of seeking new employees through a blind
advertisement that did not identify the location of the work had the
effect in this case of preventing the predecessor employees from learn
mg that their jobs were to be terminated and that if they wished to con
tine to work at the building they must apply to Systems for employ
ment Further we agree with the judge that Systems President Cicero s
March 20 1986 letter indicates that Systems wished to avoid recognizing
and bargaining with Local 29 We also note that the predecessor employ
ees were not notified until just before Systems took over the contract and
new employees had already been hired that their services were to be ter
mmated These facts amply support a prima facie case that Systems re
fusal to hire the predecessor employees was discrmunatonly motivated
See Shortway Suburban Lines 286 NLRB 323 (1987) compare Vantage
Petroleum Corp 247 NLRB 1492 ( 1980) We also agree with the judge
that Systems has failed to bung forward convincing evidence to rebut the
puma facie case
1075
conclusions3 and to adopt the recommended
Order 4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that Respondent Systems Man
agement, Inc, New Castle , Pennsylvania , its offi-
cers, agents, successors , and assigns , and Respond-
ent International Brotherhood of Painters and
Allied Trades of the United States and Canada,
Local 327, AFL-CIO, its officers , agents, and rep
resentatives , shall take the action set forth in the
Order
8 In adopting the judge s conclusions with respect to the Respondents
recognition of Painters Local 327 at the Porter Building based on cards
signed in September 1986 we note that employees subsequently indicated
that they did not wish to be represented by Painters Local 327 Howev
er thereafter a majority designated Painters Local 327 as their represent
ative and there was no showing of card invalidity with respect to either
of the two designations Moreover employees ratified the contract that
was thereafter signed after the second majority designation for Painters
Local 327 Therefore the employee disavowal of Painters Local 327 is
without consequence
4 In adopting the ,fudges dismissal of the 8(a)(3) and ( 1) allegations
against Respondent First Union Management Inc we concur in the
judge s conclusion that it is unnecessary to reach the Respondents 10(b)
argument It is similarly unnecessary to rule on First Union s motion to
sever cases
In adopting the judge s Order we note that we reaffirmed the appro
priateness of the backpay remedy applied here in State Distributing Co
282 NLRB 1048 (1987)
Charles H Saul Esq, for the General Counsel
Henry J Wallace Jr Esq (Reed Smith Shaw & McClay),
Pittsburgh, Pennsylvania, for Respondent Systems
Management, Inc
Domenic A Bellisario Esq (Bellisario & Pon tier) and R
Bruce Moore Esq, of Cleveland, Ohio, for Respondent
First Union Management
Ernest B Orsatti Esq (Jubehrer Pass & Intrieri) of Pitts
burgh, Pennsylvania for the Charging Party
DECISION
STATEMENT OF THE CASE
THOMAS R WILKS, Administrative Law Judge Pursu
ant to unfair labor practice charges filed on 10 July 1986
in Cases 6-CA-19321 and 6-CB-7147, on 11 August
1986 in Case 6-CA-19407, and on 3 September 1986 in
Cases 6-CA-19465 and 6-CB-7194 with Region 6 of the
National Labor Relations Board by Service Employees
International Union, Local 29, AFL-CIO (Local 29),
consolidated complaints issued on 2 March 1987 against
Systems Management, Inc (Systems), First Union Man
agement , Inc (First Union), and International Brother
hood of Painters and Allied Trades of the United States
and Canada, Local 327, AFL-CIO (Local 327) The
cases were all consolidated and were subsequently fur
ther consolidated with cases from Region 8 prior to the
trial at which I severed the Region 8 cases from the
Region 6 cases and remanded the Region 8 cases to the
292 NLRB No 125
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Regional Director for processing of settlement agree
ments The remaining consolidated complaint as amend
ed alleges inter alia that Systems has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (2),
(3), and (5) of the National Labor Relations Act (the
Act) that Respondent First Union engaged in unfair
labor practices within the meaning of Section 8(a)(1) and
(3) of the Act and that Local 327 engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act
Respondents answers admit the respective jurisdic
tional allegations and deny the commission of any unfair
labor practices
On 30 March 1987, First Union filed with the Board a
Motion to Sever and Motion for Summary Judgment On
3 April 1987, the General Counsel filed an opposing
motion with supporting brief By Order dated 21 April
1987, the Board Denied the Motion to Sever and Motion
for Summary Judgment in which First Union raised and
argued a 10(b) issue
The trial before me commenced at Pittsburgh, Penn
sylvania, on 28 April 1987, and continued thereafter on
29 and 30 April and 6 and 7 May 1987 On 25 June 1987,
the General Counsel filed a posttnal brief Respondent s
briefs were filed on 31 July and 4 August 1987 The
General Counsels answering brief was filed 21 August
1987
The General Counsel argues and alleges that
1 First Union unlawfully caused its new janitorial sub
contractor, Systems, to refuse to hire the predecessor
janitorial subcontractors employees
2 Systems discnmmatonly refused to hire the prede
cessor janitorial employees at the 300 Sixth Avenue
building in downtown Pittsburgh pursuant to the unlaw
ful request of First Union
3 Systems discriminatonly refused to consider for hire
and to hire the predecessor janitorial employees at the
300 Sixth Avenue building and at the Porter Building a
nearby location where it had also been subsequently en
gaged by a third party, in order to avoid the obligations
of a successor to bargain with Local 29
4 Systems unlawfully refused to recognize and bargain
with Local 29, which had represented the predecessor
janitorial employers employees and unilaterally institut
ed changes in the janitorial employees terms and condi
tions of employment at both the 300 Sixth Avenue build
ing and the Porter Building , in violation of Section
8(a)(1) and (5) of the Act
5 Systems rendered unlawful assistance to the Painters
with respect to its employees at the First Union Building
and at the Porter Building and unlawfully recognized the
Painters and entered into collective bargaining agree
ments at each of those facilities, in violation of Section
8(a)(1) and (2) of the Act
6 The Painters unlawfully accepted recognition from
Systems at the First Union and Porter Buildings and un
lawfully accepted dues pursuant to a union security
agreement in collective bargaining agreements executed
with Systems covering, respectively, employees at the
First Union and Porter Buildings, in violation of Section
8(b)(1)(A) and (2) of the Act
Certain other coercive conduct was alleged in the
complaint and litigated, but not argued in the General
Counsel s brief
Respondent argued that there is no causal connection
between Respondent First Union and the hiring motiva
tion of Respondent Systems, and that the hiring of new
employees by Systems, rather than the retention of its al
leged predecessors employees at two downtown Pitts
burgh office buildings where First Union and a third
party had engaged it to provide cleaning and mainte
nance services, was effecutated in accordance with non
discriminatory business reasons and its past policy and
practice Respondents argue that the General Counsel
has failed to prove unlawful motivation, and that even
had unlawful motivation been proven, the General Coun
sel has failed to prove that a majority of predecessor em
ployees would have been hired had they been considered
and offered positions, but that on the contrary it is
proven that Local 29 would not have had a majority
representational interest in any event, and that no bar
gaining obligation would have arisen It is further argued
that the General Counsel has failed to prove that Sys
tems' recognition of Local 327 as bargaining agent was
based on other than its good faith belief, not proven to
be inaccurate, that Local 327 was designated as such by
a majority of its employees at both locations
On the entire record of this case, including evaluation
of documentary evidence and the much disputed testimo
ny of witnesses and their demeanor, and consideration of
exhaustive and lengthy briefs, I make the following'
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENTS
At all times material Respondent Systems, a Pennsyl
vania corporation with an office and place of business in
New Castle Pennsylvania has been engaged in provid
ing janitorial and cleaning services and Respondent First
Union, a corporation with an office and place of business
in Cleveland Ohio has been engaged in the manage
ment operation and/or rental of office buildings includ
ing an office building located in Pittsburgh, Pennsylva
nia known as the 300 Sixth Avenue building
During the 12 month period ending 30 June 1986 Re
spondent Systems in the course and conduct of its oper
ations performed services valued in excess of $50 000 for
customers such as First Union Management, Inc which
are themselves directly engaged in interstate commerce
During the same period Respondent Systems, in the
course and conduct of its operations, purchased and re
ceived at its Pennsylvania facilities products goods, and
materials valued in excess of $50 000 directly from points
outside the Commonwealth of Pennsylvania, and pur
chased and received at its Pennsylvania facilities prod
ucts, goods, and materials valued in excess of $50,000
from other enterprises which had received the products
goods, and materials directly from points outside the
Commonwealth of Pennsylvania
I Counsel for the General Counsels and Systems unopposed motions
to correct transcript are granted
SYSTEMS MANAGEMENT
During the 12 month period ending 31 July 1986, Re
spondent First Union, in the course and conduct of its
business operations described above, derived gross reve
nues in excess of $100,000, of which in excess of $25,000
was derived from First Federal Savings and Loan Asso
ciation of Pittsburgh First Federal Savings and Loan
Association of Pittsburgh is engaged in the operation of
consumer and commercial banking in Pittsburgh, Penn
sylvania, and at various other locations and leases space
in Respondent First Union s 300 Sixth Avenue building
During the 12 month period ending 31 July 1986, First
Federal Savings and Loan Association of Pittsburgh, in
the course and conduct of its business operations de
scribed above, derived gross revenues in excess of
$500,000 and in the course and conduct of its business
operations described above, transmitted checks valued in
excess of $50,000 to out of state banks for collection pur
poses During the same period, First Federal Savings and
Loan Association of Pittsburgh, in the course and con
duct of its business operations described above derived
at least $50 ,000 in revenue from investments made out
side the Commonwealth of Pennsylvania
Respondent Systems is now, and has been at all times
material , an employer engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act
Respondent First Union is now, and has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act
II LABOR ORGANIZATIONS
Local 29 is now, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act
Local 327 is now and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act
III FACTS
A Background
Historically, until the early 1970s, the practice in
downtown Pittsburgh had been that office building
owners and operators employed their own cleaners and
janitors who were represented by Local 29 in a multiem
ployer bargaining unit Thereafter, independent national
cleaning contractors commenced with greater frequency
to be hired by the building owners Local 29 successfully
organized the employees of these contractors and there
after represented them as it had the employees of the
building owners Bargaining between Local 29 and the
employers apparently was effectuated through the Office
Building Association of Pittsburgh (OBAP), which re
sulted in a standardized contract that provides for a 40
hour workweek The General Counsels witnesses testi
feed that there was a frequent rebidding of contracts and
therefore a turnover of contractors at any particular
building every few years, but that the practice had been
for the succeeding contractor to retain its predecessor s
employees and to recognize and bargain with Local 29
Local 29 maintains in its labor agreements a clause
which recognizes it as exclusive bargaining agent, not
only for all bargaining employees at the designated build
1077
ing, but also for those employed in the City of Pitts
burgh, Allegheny County, and surrounding counties
In the winter of 1985-1986 the OBAP engaged in
concessionary bargaining which precipitated picketing by
Local 29 Also thereafter, several major building
owners/operators engaged succeeding contractors who
attempted to hire new employees rather than to retain
the predecessor employees, which resulted in picketing
by Local 29 at least at some of these sites Local 29 Sec
retary Treasurer Ralph Terry testified that at one loca
tion the succeeding employer hired some' of the prede-
cessor s employees but also hired new employees when it
changed the operation from that of full time employment
to part time employment with an enlarged work force
Although Terry testified that it is normal for the succes
sor employer to voluntarily notify Local 29 of its as
sumption of work and to retain the same employees and
to recognize Local 29 Business Agent Keith Pipes ad
mitted that on learning of a successor contractor, Local
29 usually visits the site on the first day that the succes
sor starts work and will either picket, or attempt to
make applications for employment, or to talk to the new
[contractor] General Counsels witness Samuel Gund
lach, the vice president of a competitor cleaning contrac
tor, Pritchard Services , Inc, admitted in cross examina
tion that it is the local practice for Local 29 to picket all
contractors who do not acquiesce to their recognition
and contract However, Patrick Cassese, president of an
other competitor contractor, corroborated Terry but also
admitted that he recognized Local 29 before he hired the
predecessor employees when there existed a site con
tract and that it was area practice to do so Thus, the
record is not entirely clear regarding the local practice
about whether the retention of former employees has
customarily resulted from the successors initiative or
from the initiative of Local 29, including picketing and
assertion of its jurisdictional and area standards claims It
is clear that some downtown Pittsburgh owners/
operators had recently attempted to obtain economic
concession from Local 29, and had hired some non Re
spondent contractors who within the last 1 or 2 years did
not follow the customary procedure of retaining their
predecessors full time employees
First Union manages a downtown Pittsburgh highnse
office building at 300 Sixth Avenue Pipes testified that
Local 29 has represented the employees in the custodial
unit employed at 300 Sixth Avenue for over 30 years
and that until Systems advent the employees had been
retained by all the succeeding contractors The bargain
ing relationship had arisen between the direct employer
of the cleaning persons i e either owner or contractor
through OBAP, but Local 29 had never maintained
direct contract relations with First Union
B Events Leading to First Union's Contract with
Systems
The record evidence of Cleveland Ohio based First
Union s earliest performance as operations manager of
300 Sixth Avenue appears to be in 1983 In that year a
cleaning contract between First Union and National
Cleaning Contractors expired in September First
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union's operations manager George Sirow , testified that
pursuant to its practice , First Union , prior to expiration
of the National contract , notified its on site manager,
who in turn resorted to the `marketplace " and solicited
bids from a variety of contractors , which in turn were
submitted to the Cleveland headquarters Sirow thereaf
ter consulted with his manager and with his superiors,
but exercised his authority and made the decision to
award the contract to a particular bid based on the
dollar value of the bid The successful bid was that made
by Commercial Property Services, Inc (CPS) which,
like National , was in Pittsburgh CPS executed a con
tract with First Union on 23 November 1983 after
having commenced its services on or about 1 October
1983 That contract was terminable as of 1 October 1985
It provided for 10 full time employed cleaning personnel
based on full building occupancy , i e, one day
porter/freight operator, eight night cleaners , and one
night supervisor General Counsels witness Cassese of
CPS testified that he recognized Local 29 and assumed
the "existing contract in place with Local 29 " He testi
fled with respect to making his bid to First Union
Well, it 's no secret that [Local 29] was in the build
ing so we knew the economics And during the bid
ding process we got a copy of the contract and
made sure the economics were the same as we had
in other buildings because there were some wage
scales differentials in various buildings that 29 rep
resented
Cassese testified that pursuant to the `custom in the in
dustry , ' prior to the hiring of any employees he there
fore recognized Local 29 as representative of the clean
mg employees at 300 Sixth Avenue, all of whom he had
already intended to retain Cassese testified that as the
second ann'versary of his Sixth Avenue contract ap
proached he was hopeful of obtaining a second 2 year
term In late 1985 , he was informed by Sirow that First
Union had elected to terminate the contract but he was
invited to participate in the rebidding process
Cassese testified that at some point in the rebidding
process there was a conversation with Sirow as follows
There was discussion regarding if we would consid
er submitting a bid under our non union Cleveland
Cleaning and Maintenance Operations
Cassese confirmed counsel for the General Counsel s
leading question that yes , it was Sirow who made that
suggestion Cassese could not recall whether this conver
sation occurred by telephone or in person He did not
specify a date nor the full context of conversation He
merely testified that he declined the suggestion " Cas
sere is also the owner of Cleveland Cleaning and Mainte
nance Operations , which employs nonunion represented
employees and which performs services for First Union
at locations in Cleveland
In October 1983, Cassese received written notification
of the contract termination and the solicitation for CPS'
rebidding Cassese testified that the following events
transpired He telephoned Sirow for the first contact
with him and arranged a meeting in Cleveland which
was held at Sirow s office on or about 27 November
Present also were Mike Biddle , vice president in charge
of CPS' Pittsburgh operations, and Lee Chilcotte, be
lieved by Cassese to be an attorney for First Union Nei
ther was called as a witness Cassese testified that a gen
eral discussion ensued but that it was stated that because
he was in the midst of contract negotiations with Local
29, it was difficult for CPS to look at economics Any
cost reduction to be made to First Union was attendant
on wage concessions obtained from Local 29 , and that in
absence of such an assured concession he could not
tender a lower bid It was stated that therefore the con
tract would be awarded to Pritchard Services, Inc Cas
sese testified
Well, I questioned how they [Pritchard] could do it
less economically than we could since we were
dealing with very defined economics in the labor
agreement , and, I believe, at that point in time, Mr
Sirow expressed the fact that it was Pritchard s
problem and they were intending to do it non
union , and the economics were substantial enough
that the business decision had to be made
Cassese did not explain who the they' were who in
tended "to do it non union," i e , whether it was Pntch
and or First Union He gave no further context Subse
quent to the meeting, Cassese submitted to Sirow a writ
ten bid dated 3 December 1985 (after the Pritchard con
tract execution) in which he stated the terms on which
CPS would revise 300 Sixth Avenue in the event of de
fault of its replacement contractor , and where he ac
knowledged that the cancellation decision was purely
economic " The pricing summary provided for 1 full
time porter, 1 full time freight elevator operator, 15 part
time cleaners , and 1 part time supervisor for a total
annual wage cost of $104 000 compared to the $152,726
annual wage cost at its prior contract The expired con
tract set forth that annual costs, excluding service fee of
$236,924 88 The rebid offered $153,020 The use of part
time personnel is inconsistent with the standard Local 29
contractual mandate for a 40 hour week
In cross examination , Cassese testified that his bid to
First Union reflected the labor cost factor that he antici
pated as a result of the ongoing negotiations with Local
29, and that Sirow stated at the November meeting that
the basis of his award was economics
Samuel Gundlach of Columbus, Ohio, is vice president
of Pritchard and is responsible for its north central oper
ations, which includes Pittsburgh Gundlach testified that
Pritchard utilizes both full time and part time employees
dependent on its own and its client 's desires , but that he
has found that employees who work a 4 or 5 hour shift
are far more productive than full time employees because
of the lack of need for breaks and the ability to sustain a
night shift with less fatigue He testified about the fol
lowing sequence of events involving First Union's solici
tation of bids for 300 Sixth Avenue in late 1985 Gund
lach and his Pittsburgh branch manager met with Sirow
in Cleveland in mid September (The branch manager
was not called to testify) A generalized conversation oc
curred regarding a possible national contract with First
SYSTEMS MANAGEMENT
Union A specific immediate bid for cleaning services for
600 Sixth Avenue was solicited Gundlach gave no de
tails of the conversation and alluded to no union refer
ence Thereafter, Gundlach met twice with Robert
Becky, First Union's property manager assigned to 300
Sixth Avenue, and also engaged him in a telephone con
versation in early October The meetings occurred at the
site, the first of which occurred about 1 October when
the building was inspected by Gundlach There was a
discussion of the job requirements were discussed Gund
lach testified that during this discussion and on "several"
other undated and unspecified occasions Becky stated
"At that point in time that it was their desire to have a
non union contractor in there and that had been his rec
ommendation for several years " Gundlach did not give
the general or precise context of the discussion within
which these statements arose, i e, what comments by
either him or Becky preceded or precipitated the refer
ence to a nonunion contractor On counsel for the Gen
eral Counsel's questions about whether Sirow had made
similar remarks, he testified
In the bidding process and through several negotia
tions it-Mr Sirow expressed the fact-an interest
that he would like to see us bid a non union, and if
we could do that I said, yes, we could
This expressed "interest" was not clarified by Gundlach s
testimony, i e, whether it was baldly verbalized or
merely implied by Sirow or inferred by Gundlach, de
manded, suggested, or merely queried Neither were
dates, circumstances, and contexts given
Prichard was awarded a cleaning contract for 300
Sixth Avenue effective 1 December 1985 through 30 No
vember 1988, and mutually terminable on 30 days ad
vance notice or by First Union after 3 days' notice on
failure of performance Attached to the agreement was
an "annualized total cost analysis" of $152,576, including
$116,020 annual wage costs to be incurred by First
Union for 2 part time day cleaners, 15 part time night
cleaners, 1 part time night supervisor, 1 full time day
porter and 1 full time elevator operator
Gundlach testified that pursuant to his 16 years in the
industry, 7 of which included Pittsburgh except for the
preceding year of turmoil," it has been the industry
practice in downtown Pittsburgh to automatically hire
the employees already on the site Furthermore, he testi
feed that in the past on occasion or occasions when avail
able for transfer Pritchard has hired his predecessor's
employees at an unspecified location where there had
been no union representation in order to simplify the
transition and to obtain employees who have specific
knowledge of the on site job requirements and routines,
thus resulting in an economic benefit of avoiding unpro
ductive training time On commencement of its contrac
tual performance, Pritchard did not retain the cleaning
employees formerly employed by CPS He did so despite
his testimony above and testimony elicited in cross exam
ination that traditionally Local 29 will picket and
demand recognition for any nonunion contractors in
downtown Pittsburgh His contract also set forth part
time positions that appear to conflict with the standard
1079
Local 29 labor agreement which set forth a 40 hour
workweek He testified without contradiction that Local
29 threatened to, and did picket Pritchard at 300 Sixth
Avenue everyday for the first full week of its perform
ance and further that the International union agents
threatened to transport persons from Pittsburgh to New
York City to engage in informational picketing at sites
there where Pritchard was performing $40 million worth
of business After a week Pritchard terminated the new
part time employees, rehired the former full time Pritch
and employees and recognized Local 29, and agreed to
effectuate the existing wages, terms, and conditions of
full time employment previously negotiated by Local 29
in downtown Pittsburgh, and to incorporate into a labor
agreement the results of the current negotiations that at
that time in December had resulted in picketing of
downtown Pittsburgh building sites by Local 29 where
Local 29 labor agreement contractees were utilized It is
Gundlach's testimony that Pritchard's New York City
representative executed a labor agreement there with
Local 29
The resulting reinstatement of former employees at
higher wages than Gundlach had factored into his bid
for 300 Sixth Avenue caused him to conclude the eco
nomic unfeasibility of continued performance of the First
Union contract He subsequently sought relief from
Sirow and asked for a renegotiation of the contract at a
higher cost to absorb the increased wage rate and a "no
cut" clause required by Local 29, i e , a standard Local
29 clause prohibiting a reduction of employees when
building rental space is underutilized On 10 December,
he and two associates who did not testify met with
Sirow and Chilcotte Sirow "initially" adamantly re
fused, stating it was Gundlach's problems and that
Pritchard would be held to its contractual undertaking
A conversation transpired, the contents of which Gund
lach did not reveal in his testimony except that it was es
sentially a 'one sided" presentation by Pritchard At the
end of the conversation he told Sirow that he would
send him a revised pricing sheet with a new billing and
Sirow said that would be fine Based on these out of
context words of Sirow, Gundlach assumed that First
Union had agreed to absorb increased costs Ultimately,
First Union did not agree When Sirow received the new
additional billing, he responded by demanding that
Gundlach explain what it was, and then disputed that
any such agreement was made, and that billing set forth
a new pricing sheet for a total annual billing of $231,006
On 17 January, a meeting was held between representa
tives of both companies, at which Sirow refused the as
sumption of added work and insisted on contractual per
formance Sirow again objected to the proposed "no
cut" clause, which would prevent a reduction of labor in
accordance with decreased square footage that needed
cleaning Gundlach protested that he would be forced to
terminate the contract
By letter dated 20 January, Gundlach confirmed the
contract cancellation effective 15 February By letter
dated 22 January, Sirow acknowledged the cancellation
and accepted it as effective 19 February By letter dated
31 January, Gundlach unsuccessfully submitted to Sirow
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
revised cost and pricing based on a reduction of one
night cleaner position and elimination of the day porter
position, leaving a balance of seven full time nonsupervi
sory employees The letter explained, however, that re
tention of the current staff level would result in a total
ceiling price in excess of $224,000 Pritchard's last date
of performance was between 15 and 19 February
CPS, like Pritchard, had previously successfully bid on
other First Union jobsites in Cleveland Cassese of CPS
testified to the following encounter with Sirow on or
about 22 December 1985 in Cleveland where they met to
discuss their contract for services at two downtown
Cleveland buildings Cassese s associate, Biddle, was also
present but did not testify Sirow was alone According
to Cassese s generalized testimony near the end of the
meeting something was said to lead Cassese to conclude
that `Pritchard apparently had some problems with the
Union, which led to the cancellation of its contract
Sirow asked whether Cassese was interested in rebid
ding As to a reference to union representation, Cassese
testified in the disjointed fashion endemic to his entire
testimony
Well, in the conversation of how rebidding would
take place you know we talked about, could it be
done non union since-and I think I expressed some
of my own feelings about it, that there was a possi
bility because [Local] 29 we had lost the contract
and [Local] 29 to our understanding no longer rep
resented the employees because I think, we both
felt that the only way we could meet the economics
in the property was to be in a non union situation
And, we expressed some interest, at that point in
time, however we didn t respond, at that meeting
as if we could or would be able to do it
[Sirow] did express the fact that he was going back
to see quotes, and he had several companies, some
of which were non union some-one two possi
bly said that they could either be union or non
union, giving him some choice So it seemed to me
that he had several alternatives in the bidding proc
ess
Cassese testified further that Sirow did not explicitly
name any particular union but asked him whether he
was interested in submitting a price either union or
non union, he wanted a price Sirow told Cassese that
he could bid the job union or non union but that the
basis for awarding the bid as discussed was economics
In disjointed sentence structure, Cassese testified that ref
erence to CCM somehow emerged and Sirow asked if
Cassese was willing to bid through that entity There
was an "expression by someone to the effect that
Pritchard s rehiring of former employees rendered his
position to be economically untenable but that Sirow
stated that bids were being solicited from non union
companies and companies who said that they could
either be non union or union depending on what First
Union may have wanted In more specific terms Cas
sese testified that Sirow stated
I in soliciting non union companies Some of those
comapnies can deliver a union can you?
Cassese responded that he could not give an immediate
answer because the complexity of the situation required
legal advice and, moreover, at that time the contract re
newal negotiations with Local 29 had not been resolved
and Local 29 was picketing other locations in Pittsburgh
which were serviced by CPS Within a couple of
weeks Cassese communicated to Sirow his decision to
decline the bid solicitation, because CPS did not feel it
was worthwhile to do so under the circumstances,
that CPS was not interested in submitting a nonunion
bid that the Local 29 negotiations were still in flux, and
that coming in with another union was not the answer
and there were questions whether [Local] 29 really had
jurisdiction to that building
The thrust of this testimony appears to be that Sirow
wanted a low cost contract, that Pritchard could not do
it because it hired the former employees, recognized
Local 29, and agreed to collective bargaining contract
terms that made it impossible to perform its contract to
service 300 Sixth Avenue Further Sirow was soliciting
bids from a variety of companies union, i e, Local 29,
nonunion and those that recognized a different union
and questioned Cassese as to his abilities in this regard
Sirow suggested that Cassese could submit a bid under
any of those alternative operational formats but that
Sirow s objective was price, that is, a price substantially
lower than that quoted by contractors who factored in a
labor cost based on the prevailing standard contractual
Local 29, downtown Pittsburgh wage rates
I conclude that according to Cassese s testimony,
Sirow by statement and implication, informed Cassese
that he would award the contract to the bidder who
gave him his desired price, and how that price level bid
was effectuated and was left to the judgment of the
bidder be it one who was non Local 29 one that affili
ated with another union, or one that recognized Local
29 Implicit in the Local 29 recognition alternative is that
the contractor would despite its recognition of Local 29
be able and willing to successfully negotiate a wage rate
level comparable of performance with the accepted bid
There was no explicit suggestion that the successful
bidder must necessarily refuse to hire the predecessor
employees However Cassese was left with the subjec
tive impression that they both felt that the most eco
nomically viable alternative was nonunion, i e non
Local 29 after Sirow told him that other non Local 29
(either nonunion or other union) contractors would be
willing to bid, and inquired about his ability and willing
ness to bid as a non Local 29 entity
Sirow testified to the following sequence of events
which led to the acceptance of Systems as Pritchard s re
placement Implicit, however was the understanding that
the successor contractor set initial wage rates which
made a cheaper contract feasible When Pritchard had
been initially selected, it had been based on Sirow s judg
ment as to which of a group of bidders would provide
capable service at the most reasonable cost Although
there were lower bidders, they were not well qualified
Sirow denied that he ever expressed an interest in re
ceiving a nonunion bid from Gundlach He denied that
he had ever agreed to absorb the added costs resulting
SYSTEMS MANAGEMENT 1081
from the recognition of Local 29 He denied that subse
quent to Pritchard s recognition of Local 29 he asked
Cassese to bid either union or non union ' Except for
the January meeting with Gundlach he failed to accom
pany his denials of nonunion solicitations with his ver
sions of the context of the conversations in which Gund
lach and Cassese testified that they occurred He did not
deny their testimony about having had conversations rel
ative to the rebidding process and the nature of the bid
ders , and the alternative prospects of how it would be
feasible to achieve a bid that factored a wage cost lower
than that possible with adherence to the citywide Local
29 wage rates Despite the generalized and disjointed
nature of Cassese s testimony and conclusionary nature
of Gundlach s testimony , I find that I must credit them
where their testimony is not contradicted by Sirow I
found it unnecessary to decide whether Sirow agreed to
absorb Pritchard 's added costs However , I also credit
their testimony that Sirow did indicate some interest in
a nonunion bid and discredit Sirow s monosyllabic dem
als solicited by his counsel Although Systems argues
that they be discredited as biased competitors of Sys
tems , they are not competitors of First Union but rather,
if anything , it would appear to be contrary to their inter
est to testify adversely to First Union with whom they
have done business and might need to do so again How
ever, I attach little probative value to Gundlach s testa
mony because the suggestions were without context
With respect to Cassese s testimony, as noted above it
does not clearly reveal that Sirow instructed , ordered, or
asked Pritchard to submit only a nonunion bid if he ex
pected it to be approved
Becky denied that he told Gundlach that it was First
Union 's desire to have a nonunion contractor at 300
Sixth Avenue and that he had recommended such for
several years I must credit Becky Gundlach s testimony
was generalized and given without context The credible
evidence is that Becky had not been employed by First
Union for several years at the point of time when the
alleged statement was made and had been appointed
property manager in February 1984 It is therefore un
likely he would have made such statement Thus the ac
curacy of Gundlach s recollection of Becky s comments,
if any regarding the desirability of nonunion contractors
at 300 Sixth Avenue is sufficiently suspect to undermine
reliance on it
Sirow testified that immediately after he received
Pritchard s notification of termination he instructed
Becky to contact and commence solicitations for con
tract bids with anyone in the market place ' Becky rec
ommended a contract with Systems based on the previ
ous submission of bids Of that submission , only two less
qualified or inexperienced contractors were lower in cost
than Pritchard Systems prior bid , however, was com
petitive Sirow agreed His letter to Gundlach of 22 Jan
uary acknowledged receipt of Gundlach s cancellation
notice on 20 January Systems executive vice president,
William Noble who participated in all discussions with
First Union testified that subsequent to November there
had been no contact with First Union until Becky en
gaged in a telephone conversation on 28 January 1986 in
which Becky advised that Sirow be contacted Becky
testified that he would have immediately communicated
this message to Joseph Cicero , the president and chief
executive officer of Systems, but for the fact that Cicero
was absent and out of the city on 28 and 29 January
Becky thus had to wait until 30 January when Cicero
then became involved in negotiations with Sirow From
the testimony , it appears that Sirow did not immediate
ly" commence contact with Systems From the testimo
ny of Cassese , the credibility of which is thus enhanced,
Sirow had opportunity to and did solicit Cassese s re
newed interest as described above , and no contract was
made with Systems until the eighth day of receipt of
Pritchard 's cancellation notice
In direct examination Sirow s testimony glossed over
the precontract negotiations with Systems and he merely
testified that he awarded Systems the contract based on
the qualifications of the contractor and a competitive
rate He answered in a simple negative response
to First Union counsels questions about whether he or
anyone from First Union directed Systems to hire or
not to hire certain employees and whether First Union
has any policy against utilizing union contractors, but
as to the latter he cited examples of First Union con
tracts with union construction contractors In cross ex
amination , Sirow could not recall whether he first con
tacted Systems after he was informed of Pritchard s can
cellation and he testified that because he was aware of
the probabilities of nonperformance by Pritchard, he
may have contacted Systems earlier , but most likely not
before his 10 January meeting with Gundlach Noble
was certain that it was on 28 January and referenced it
to Cicero s absence from the city Sirow also could not
recall how many telephone conversations he may have
had with Noble or Cicero before actually meeting with
them which he believed occurred in early February
Noble testified that pursuant to a telephone conversa
tion on 30 January, a meeting was arranged which took
place on 3 February at Sirow s Cleveland office between
Sirow , Cicero, and himself at which they introduced
themselves and at which respective business structure
and operations were described Noble testified that
before a contract was signed he met again with Sirow in
Cleveland primarily to satisfy some concerns raised
by Sirow relative to what kind of vacancy credit Sys
tems would offer Three such meetings were held in
cluding the dates of 7 and 11 February Noble testified
that the first meeting had been exploratory and Sirow
had not given an indication of commitment but that after
having received several telephonic inquiries about Sys
tems insurance coverage , etc, he became optimistic of
obtaining a commitment He testified that at the first
meeting
we had discussions on Local-on the union, and we
brought up that we had contracts , both of a non
union nature and we also were working at that
time , or had contracts with Local 327
He testified that either Cicero or Noble informed Sirow
that there could be an interest on Local 327's behalf in
that building According to Noble , Sirow neither said
that that s good or that's bad because , as he phrased
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it, we couldn 't offer anything definitive as to would
they take it, or [interruption by counsel with an
other question at this point of answer] " In cross exami
nation , Noble testified that it was Sirow who introduced
the subject of Systems ' maintenance of contracts with
labor organizations , to which Noble responded that Sys
tems maintained 90 to 100 contracts , most of which are
nonunion but that it does have contracts with Local 327
at some locations Noble testified that between 3 and 7
February, he had contacted Local 327 and advised them
of the potential acquisition of a new worksite He did so
because he understood that the Local 327 contract
obliged him to do so He testified that on 7 February he
told Sirow that Local 327 had a definite interest in repre
senting 300 Sixth Avenue employees Cicero testified he
was aware of representation of the 300 Sixth Avenue em
ployees under CPS and Pritchard by Local 29 at the 3
February meeting as a result of his questions to First
Union representatives
Sirow acknowledged in cross examination that the sub
ject of unions ' did apse during these negotiations but
he could not recall when He admitted that he became
aware that Systems maintained collective bargaining
agreements with Local 327, inclusive of sites at a major
department store chain , Kaufmann s, but he had no
recollection about whether it came before that meeting,
at that meeting , or other meetings and telephone conver
sations He acknowledged that Systems did state that fact
and the extent of it but that he did not explore it ' be
cause of a lack of concern "about their particular agree
ments and Systems relations with other unions, despite
Noble s testimony that Sirow raised the subject He in
sisted that he was concerned only whether Systems was
qualified and would submit a competitive price He in
sisted on First Union s indifference to Systems union re
lationships and what union might represent the cleaning
employees at 300 Sixth Avenue despite his recent expert
ence with Pritchard and despite his admitted awareness
that a contractors collective bargaining disputes would
entail the unwanted prospect of picketing and that Local
29 was then currently embroiled in picketing a number
of downtown Pittsburgh buildings in consequence of the
ongoing dispute with OBAP, and that nonunion wages
were lower than the standard Local 29 wage rates On
further persistent cross examination, Sirow admitted that
prior to contract execution , Systems representatives told
him in negotiations that Systems would apply a Local
337 contract to 300 Sixth Avenue, and that the wage
rates under that contract would be lower than that of
Local 29 Thus, in contradiction to Noble's testimony
that he said Local 327 would only express an interest
in 300 Sixth Avenue Sirow's testimony reveals that Sys
tems had predetermined on recognition of Local 337 as
bargaining representative , prior even to an execution of a
contract with First Union Sirow testified that during
these negotiations it was his understanding of the state of
the law that a contractor who had replaced Pritchard
and hired all of Pntchard's employees would have been
obliged to recognize and bargain with Local 29 He in
sisted that the identity of the employee bargaining agent
was a matter of indifference , but rather to him econom
ics was the `bottom line In effect Sirow s objective
was to obtain a successor contractor that would be able
to perform at lower cost made feasible by lower wage
costs
Noble testified that during these meetings and conver
sations there were no explicit discussions about how Sys
tems intended to staff the building , and that Sirow had
placed no restriction on staffing In view of Sirow's testi
mony regarding the predermination of Local 327 recog
nition and contract application , and his understanding of
the impact of predecessor employee retention , Sirow had
no motivation to dictate a new staff if that predetermina
tion had been proffered without First Union 's request,
demand , or solicitation
Noble testified that the first indication of contractual
commitment from Systems came by way of a telephone
message from Systems on 13 February which led to
Noble's visit to Sirow on the same date On 13 February
in Cleveland , Noble signed a contract prepared by Sirow
which called for start of work on 16 February at 300
Sixth avenue
The General Counsel argues that it is reasonable that
Sirow made the same requests and requirements" and
`demands of Systems as it had done of Pritchard and
CPS However, the General Counsel also argues that be
cause of Systems historical sweetheart arrangement
with Local 327, it was already the perfect match' for
First Union because it improved on the aborted Pritch
and scheme to operate nonunion by virtue of the pre
recognition of Local 327 The later argument undermines
the argued inference that Sirow made any requests or de
mands of Systems' hiring or recognitional intentions as it
had no need to, i e, the discovery of the perfect
match Thus, under this theory, the causation of the
layoff of former Pritchard employees was not a demand
or request of First Union on Systems but rather the ulti
mate consequence of First Union s engaging a contractor
which, as a matter of practice delivers another union
with a cheaper labor agreement
Noble agreed that since 1978 Systems maintained a
good past relationship with Local 327 and that he had
made Sirow aware of it There had never been any pick
eting of Systems by Local 327 The Local 327 contracts
provided for substantially lower wage rates than those of
Local 29 Except for one different local union of the
same International Union Systems maintains contractual
relations with no other union About 20 percent of Sys
tems employees are covered by contracts with Local
327 Systems practice under its interpretation of its col
lective bargaining agreement was to notify Local 327
each time it obtained a new cleaning contract and when
it was about to commence operations Noble testified
that on such notice Local 327 would at its option decide
whether to express interest and to seek representation
of employees there and on behalf of Systems it was Cic
ero s decision to grant recognition Contrary to the Gen
eral Counsels assertion Nobles testimony in its full con
text did not state that recognition of Local 327 was
granted on Local 327 s mere decision to ask for it A de
terminant factor for Local 327 to request recognition
was the geographical logistics involved in servicing the
SYSTEMS MANAGEMENT
new location Local 327 headquarters is in Chareroi,
Pennsylvania
C Staffing at 300 Sixth Avenue
Noble s testimony that the industry is highly competi
tive is supported by the record, e g , it 'is the custom for
contracts to be frequently rebid and to replace contrac
tors Noble testified that Systems was excited and
eager to obtain the Systems contract as a real opportu
nity' for it to enter what for it was a new market, down
town Pittsburgh Its contracts previously had covered
such areas as retail establishments , schools , and shopping
malls As Noble stated 'We are a three million dollar
corporation, [with] no business downtown , and here is a
high rise that we are looking at ' Accordingly, he ex
plained that he did not wish to distract Sirow from sign
ing an agreement by raising any questions about staffing
Noble testified that it was Systems intention to staff the
building with part time employees, i e, 4 to 6 hours per
shift per employee , and that the basis of its cost formula
tion , inclusive of labor cost charges was premised on
that intention He testified on direct examination about
Systems past use of part time employees
Q Is that common in your company?
A Yes, very
Q Could you tell us how common it is and why
you do this?
A Well, maybe, to put in perspective then, out
of possibly ninety to a hundred total contracts that
we had at the time [500 employees] I don't think
any of those contracts have full time people
No other testimony or documentary evidence was
proffered to corroborate this testimony of the extent of
past pratice, which, however, was not challenged by the
General Counsel Noble s more detailed uncontradicted,
and credible testimonial explanation as to the greater effi
ciency and productivity and less expense of part time
employees was corroborated, as we have seen , by Gener
al Counsel witness Gundlach Noble testified that Sys
tems does employ four or five full time employees who
do special service work as a strip crew who service hard
surface floors twice annually from location to location
because there is a lack of in house expertise at each
site The General Counsel erroneously cites this testimo
ny as evidence of a lack of past practice The scheduling
of a specialized floating crew of 5 floor finishers is pa
tently distinguishable from that of 495 permanently as
signed on site cleaning and janitorial employees Again,
without contradiction, Noble testified that the type of
person hired for custodial work is, unlike the career
minded employee, a person interested in a supplemental
or temporary work, i e, college students and housewives
who are generally younger and more vigorously produc
tive
The contract wage rates previously negotiated with
Local 327 were substantially lower than that negotiated
in the downtown Pittsburgh area with Local 29 The
lower wage costs incorporated into Pritchard s contract
with First Union accompanied the employment of non
1083
union employees, a significant number of whom were
contractually specified as part timers Systems' contract
with first Union contained an annualized cost analysis
which set forth full occupancy wage cost changes pre
mised on 17 part time night cleaners , 1 part time night
supervisor, 1 full time day porter, and 1 full time eleva
tor operator Total annual costs, exclusive of monthly
service fees, were $153,461 By virtue of this contractual
item, some sort of staffing discussion is extremely likely
to have occurred between the two companies during ne
gotiations, despite Noble's testimony that there was "not
really" a staffing discussion
Noble testified that it had been Systems' intent to
overstaff the building with 25-30 employees on com
mencement of its operations in order to make an immedi
ate impression on First Union , and because earlier in
September he had found unkempt conditions in the
public areas Sirow conceded that at least this much re
garding staffing was proffered by Systems in negotiation
Noble testified that by 16 February, Systems had gath
ered 26 employees of whom 15 were currently experi
enced Systems employees from other Systems locations
including some from its Kaufmann s Department Stores
account locations near the city Some who were geo
graphically close, were offered the option of transferring
permanently to the downtown high rise for part time em
ployment The full time strip crew finished its work
within 12 hours Of the approximately 25 part time em
ployees utilized on 16 February, 10 were newly hired
Despite Noble s testimony that Systems gave no con
tractual commitment until 13 February, and that Systems
was merely optimistic up to then, it is clear that by its
conduct Systems felt quite assured well before then that
it would be cleaning the building as of 16 February
William Hudson regional manager responsible to
Noble at the time , testified as a witness for the General
Counsel Respondent Systems, in argument claimed him
to be currently the employee of a competitor and in its
brief included him in a grouping of General Counsel wit
nesses, which it termed as disgruntled ex System em
ployees ' Nothing in his demeanor or in the record sup
ports the suggestion that Hudson is or has reason to be
biased against his former employer He was not im
peached, nor was there a serious effort to do so I found
him to be convincing dispassionate objective and credi
ble Indeed Systems elicited testimony from him in
cross examination in support of its own position I fully
credit his testimony
According to Hudson, the following events led to the
hiring of 10 new part time employees for 300 Sixth
Avenue At the time it was Hudson's duty to train the
Company s district managers and to see that policy was
followed He also initiated the operations of new ac
counts He was responsible for 45 accounts and had been
involved in hiring for 20 locations The building supervi
sors reported to the district managers who reported to
him He in turn reported to the operations vice president,
Dale Palmer, who was directly subordinate to Noble
Hudson hired new employees who commenced work at
300 Sixth Avenue on 16 February He interviewed and
hired them approximately within 2 weeks before that
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
date, after having followed his universal practice of ad
vertising in a suburban advertising journal called the
Pennysaver in early February That publication was
distributed free to all homes in the metropolitan area and
was admittedly received and read by some of the former
Pritchard employees The ad itself did not reveal the lo
cation nor the identity of the employer but solicited
part time employees at a specified wage rate of $3 75 per
hour for work at an office building The ad also specified
that experience was desired and directed the reader to
the telephone number of the state operated North Side
Job Service, at which applicants were processed pursu
ant to past practice
Hudson and an associate interviewed 100 applicants at
the state agency sometime in the 2 week period prior to
16 February most probably between 3 and 7 February
It is not clear when 10 of those employees were notified
that they were hired and told to report to 300 Sixth
Avenue, nor when the decision to hire was actually
made Respondent witness, the current Systems down
town Pittsburgh district manager, Betty Boggs testified
that she had been interviewed at the North Side office
by Hudson at least one week prior to the hiring and
was notified of hiring at least 2 days prior to 16 Febru
ary The witnesses for the General Counsel, Shelly
Harvey and Lisa Mobley, were hired prior to and re
ported for work on 16 February, but they were silent as
to the interview and hiring circumstances
Hudson testified that based on his interviews he was
satisfied about the qualifications of those he hired as A
Number One people' After Hudson was questioned by
the General Counsel about the interviewing and hiring of
the prospective employees he testified that he re
viewed their past records and work history and then
asked if they had belonged to any union When asked
whether he had done so on specific instruction he testi
feed
Well, when interviewing I found a lot of people
not being familiar with a union And I ask a ques
tion and proceed to tell them about union coming
in with a union and just explain everything to
them I explained to them that they would be
associated with Local 327 And that was basically
it
On cross examination Hudson testified that at the
same period of time in February, he interviewed and
hired some of those 100 applicants for positions with
some of his other accountants which needed an unspeci
feed number of employees, including the Rochester Shop
N Save and the 5 Kaufmann's Department Stores at
which Systems employed 50 cleaning persons, and at
which the employees were covered by a union security
clause in a Local 327 contract He did not explain
whether those were the same locations from which
Noble testified that experienced employees were tempo
ranly transferred Respondent Systems argues that Hud
son s testimony regarding his union reference to at least
some of the applicants must be understood in the con
text of his interviewing employees some of whom he in
tended to place at Kaufmann's location where there was
a valid union security clause Respondent Systems argu
ment however ignores subsequent testimony of Hudson
which in response to a direct question, explicitly direct
ed to the interviews of the prospective employees for
the Sixth Avenue building about whether a union con
tract was referred to he testified I told them that they
would belong to the Local 327 He testified that he
made no mention to them of a union contract Thus the
context of his testimony supports the General Counsel's
argument that Hudson told each of the Sixth Avenue ap
plicants, necessarily inclusive of the 10 hired that they
would belong to and become members of Local 327,
which in that context meant that they were told that
such membership was a necessary consequence of em
ployment and thus a condition of employment Although
the General Counsels witnesses were silent about their
own interviews I credit Hudson rather than Boggs who
testified that Hudson made no reference to union affili
ation during the interview His demeanor was more con
vincing and he had less interest in the proceeding than
did Boggs, the district manager
Admittedly, no direct solicitation for employment nor
notice of employment opportunity was tendered by Re
spondent to any of the full time career employees al
ready employed at the site by Pritchard and most of
whom had been employed by its predecessors for 15
years None of these employees responded to the blind
Pennysaver advertisement and, indeed Hudson testified
that of 100 applicants interviewed, only Boggs indicated
prior membership in Local 29 in her distant past Nor
were the Pritchard employees given more than 2 days
notice of the lack of need for their services Of the 20
places where Hudson had hired employees for new ac
counts, he testified that he used the same type of blind
advertisement in the Pennysaver with nondisclosure of
work location and processing through the state job re
source agency He did not testify that he always used a
blind advertisement exclusively Also, of those 20 loca
tions he testified that there were 3 accounts he recalled,
where predecessor employees were interviewed and
where he had notified them of interviewing He identi
feed those locations where predecessor employees were
hired on interview as the five Kaufmann s stores from
April to July 1985, and the Meadow Race Track in 1981
or 1982 He testified that he interviewed the predecessor
employees at the Sears department store at the South
Hills Village, but hired only two of those for another ac
count He was silent about the circumstances of such
interviewing He failed to testify that he notified those
employees and solicited their applications directly, or
whether they applied to Systems pursuant to the instiga
tion of the predecessor employer, a union , or even the
blind advertisement He refused to answer affirmatively
the General Counsels questions about whether it was
Systems common or general practice to interview
predecessor employees He explained that Well some
occasions I would interview the employees and some oc
casions, I wouldn t When asked by counsel for the
General Counsel what objective advantage there was in
hiring predecessor employees he answered that the best
advantage was the knowledge of the location or build
SYSTEMS MANAGEMENT 1085
ing, if' they were good employees He did not testify,
as is suggested by the General Counsel , that this particu
lar objective advantage was the predominant or indeed
a factor at all in his past decision whether predecessor
employees would be hired or even interviewed at those 3
accounts of 20 locations where he did so He did not tes
tify at all about what the determining factor was in those
accounts , nor did he testify or explain why he followed
what clearly was his predominant hinng practice regard
ing the 300 Sixth Avenue hiring despite the objective
advantage of retaining good employees who are famil
tar with the building which was the site of an exciting
and important access into a new market , for which Sys
tems planned to make a favorable first impression on
First Union However , Hudson was also not called on to
explain why he did not notify and interview predecessor
employees in the preponderance of his hinng situations
Neither Hudson nor any other witness for any party tes
tified , and no other evidence was adduced , about the
hiring experiences at those 75 to 80 other Systems ac
counts and/or locations where Hudson had not been in
volved There is no evidence whether Systems has a uni
form hiring procedure , or whether it vanes with the re
gional managers For example , Hudson utilized the Pen
nysaver ' because it was headquartered near his particu
lar Pittsburgh residence Hudson neither contradicted,
nor corroborated , Noble s testimony regarding the part
time hinng practice
With respect to union representation of predecessor
employees of all those accounts in which he was in
volved , Hudson was not sure but he thought that per
haps Kaufmann s employees had been previously repre
sented by a union At all the other locations, to his
knowledge the predecessor employees had been unrepre
sented This unrebutted testimony about his own past
practice thus reveals that in the minority of cases where
predecessor employees were notified and interviewed
five of seven locations had been unionized and that in
the preponderance of locations where no such interview
ing occurred , there had not been a factor of prior union
representation
Hudson testified that he commenced operations at 300
Sixth Avenue with about 25 employees, apparently ex
clusive of the strip crew The 15 Systems employees bor
rowed from other Systems accounts also continued to
perform their regular jobs at those locations during the
morning hours They were expected temporarily to
help get the building cleaned up to where we wanted it
to be at Although all were given the opportunity to
stay downtown , only 1 of those 15 chose to stay on as a
dayworker Hudson had expected three to decline by
virtue of the distance to their homes from downtown
These 15 worked for 1 week and were ` feathered so
that Hudson had 6 or 7 of them stay for another week
Hudson testified that after about 1 month, the employ
ment level was reduced to the approximate expected
complement of 10 employees This seeming inconsistency
with the First Union contract full-occupancy wage cost
analysis , which called for more part time employees, was
not explained However , the buildings occupancy per
centage was never revealed Nor was it revealed wheth
er it had fluctuated
D Local 327 Recognition at 300 Sixth Avenue
Fred Kachmank is presently an officer of Local 327
From 1982 until June 1985 he had been business manag
er His duties as an officer entail responsibility for all the
Union s office operation and he is service agent and or
ganizer for its industrial division , inclusive of janitorial
units In his testimony , Kachmark acknowledged that
before the commencement of Systems operations at 300
Sixth Avenue on 16 February he had received a tele
phone call from Cicero where he was told that Systems
had obtained a contract at that site , and that Cicero
agreed to Kachmank s requested recognition of Local
327 as employee representative Thus, in his testimony,
he admitted having demanded and having received from
Cicero bargaining recognition of employees before they
were hired and before he had received any employee
designation as bargaining agent Repudiating his pretrial
affidavit and his written statement of position submitted
to the Regional Director he denied that it occurred in
December 1985, and that he and Cicero negotiated a
labor agreement for that site on 3 January 1986, the very
date of execution as it appears in that document He also
repudiated his prior sworn affidavit testimony and post
tion statement to the effect that a majority of the em
ployees hired for the job were already " members of
Local 327 and had agreed to work under the terms of
the Local 327 national agreement with Systems At the
trial Kachmank first testified that he could not recall the
date of Cicero s telephone call, but then testified that it
was a day before 16 February when he first discovered
that there would be a Systems account at 300 Sixth
Avenue He explained with complete lack of conviction,
that he first became aware of the error of his affidavit
about 6 days before the trial and, that when given in
August 1986 , he had not been thinking much about this
case, and had merely observed the 3 January execution
date in the contract and assumed the date to be correct
He admitted that he did actually write the contract exe
cution date as 3 January 1986 and intentionally entered
an incorrect date He testified that he did so on the
advice of his superior who gave him no explanation for
such conduct which he admitted was unusual The con
tract negotiated with and signed by Cicero refers to an
annual expiration date of 15 February , and an addendum
with 16 February as an operative date Cicero and Kach
mank testified that they negotiated the contract at Sys
tems main office in Newcastle on 21 February Cicero
testified that the negotiation of and agreement on a con
tract occurred on the same date that recognition was
granted to Local 327, Friday 21 February 1986 He tes
tified
Mr Kachmank informed me that he had all of the
members of-all of our crew working at 300 Sixth
Avenue that wanted to belong to the Union, and I
had no reason of doubting him So , I recognized
him
Kachmank not only failed to corroborate this version of
the recognition demand , but the context of his testimony
is inconsistent with it Cicero testified that his secretary
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
typed the agreement and it was mailed to Kachmank be
tween 21 February and 20 March and that it was re
turned to him signed by Kachmank and dated 3 January
1986, and that he also dated his signature 3 January He
testified
I had no reason to put any other date on it We
had-it wasn' t unusual to put a different date, sign
ing date on a contract than [that which] was the
actual date it was signed
He did not testify that it was usual for him to designate
execution dates of pure whimsey and for no relevant
purpose His demeanor was somewhat above the patent
chagrin of the embarassed Kachmarik, but it was as un
convincing His proffered explanation in effect was a
nonexplanation
Kachmank's only testimony, at the trial or in his affi
davit with respect to employee designation of Local 327
as bargaining agent , was that he had received a list of
employees ' names from Systems a "few days' after 16
February and that he met with Systems' employees on
20 March at a nearby location and obtained seven em
ployee executed representation designated membership
applications and dues deduction authorizations He con
ceded that there were one or two others, maybe three
others, there were a few others who had just begun and
who had not been there for thirty days' He admitted to
be accurate the following affidavit testimony
when I signed up the employees I explained to them
the contract with Systems including that it is a con
dition of employment that they become members of
the union
His visit to the employees was made apparently in pursu
ance to the union security clause of the contract Kach
mank however, engaged in similar organizational con
duct during a 16 February orientation program con
ducted for the new employees Systems had arranged for
the newly hired employees to be addressed by Noble
Palmer and other Systems representatives After they
spoke Kachmank there by invitation, was introduced
by Hudson to the employees as the business manager at
Local 327 who was present to talk to them and that he
would be going over all the specifics with them Kach
mank addressed the employees in the absence of the
managers He admits that he told the employees on that
occasion that they must join Local 327 in order to be
employed at that place'
Kachmank was silent about what else he stated to the
employees at the orientation meeting General Counsel s
witness Lisa Mobley testified to Kachmarik's remarks in
the following order he stated it was mandatory to
belong to Local 327 he explained the Union the union
dues and fees, and he explained a little bit about being
in [it] to us General Counsels witness Shelley Harvey,
who was present with Mobley and the other new em
ployees, at first recalled only that Kachmank explained
a little bit to us about the Union how wed represent
the-as a union , and we discussed the union dues' On
exhaustion of her recollection, she responded affirmative
ly to the question whether anything was said about it
being mandatory to join the Union,' by corroborating
Mobley
Respondents Pittsburgh district manager, Betty
Boggs , was one of the 10 newly hired employees She
answered negatively to the question whether she had
heard "anybody say you had to be a member of Local
327 to work at the First Union Building ' She testified
that she was designated as union steward by fellow em
ployees 'as soon as the orientation was over ' She ex
plained that the new employees present at that meeting
remained in the room and were allowed to discuss "what
we wanted to do' and that Kachmank had left and re
turned for their decision It was then that she testified
that the employees decided that they did want the
Union ' After only several days or a week as a stew
ard, she was promoted to supervisor On cross examina
tion, she elaborated that Kachmank was introduced and,
after Hudson left, explained himself and what he wanted
to do and his objective for the employees, and that as he
waited outside by some indefinite mode of common con
sensus, they all agreed, yes we wanted [Local 327 rep
resentation] " She recalled at least nine new employees,
of whom were included 'a few of the girls that didn t
stay very long,' and of whom she could only recall the
names of Sharon and Debbie She named the others Lisa
Mobley, Shelley Harvey, Patricia Thomas, Robert
Mercer, and Catherine Kunesky She identified her em
ployment application but explained that the date she had
entered 19 February, was in error She identified her W
4 form which also was dated 19 February She had no
explanation for the dates that she assumed were incor
rect, as she testified because I started on the 16th and
unless I was unaware of the [correct] date [when
signed] " She admitted that she had filled out the W 4
form except that she denied the written entry of a dollar
symbol and union dues' in item 2 which provided for
additional deductions The writing despite her testimo
ny, is almost identical to that on the employment apple
cation which she had grudgingly conceded was indeed
her handwriting
Bogg s testimony was evasive hesitant and marked by
a singular lack of spontaneity and conviction I found her
not credible I conclude that on 16 February she was
under the impression that dues were to be immediately
deductible and paid to Local 327 I find more pertinent
Kachmank s own admissions against interest as corrobo
rated by General Counsel witnesses, that he told the new
employees that Local 327 was an immediate condition of
employment Despite General Counsel witnesses failure
to explicitly testify that no form of voting took place, I
reject the vague, unconvincing testimony of Boggs that
some form of option was provided and exercised by the
employees As Kachmarik testified, the reason that he
made such a statement to the employees was his then
belief based on his superiors instructions to him, which
he solicited because of an ignorance due to inexperience
of how to go about organizing the 300 Sixth Avenue
He testified that the general representative of the Inter
national Painters Union told him that the then already
existing national" contract between Local 327 and Sys
tems included in article II section 2, a union security
SYSTEMS MANAGEMENT
clause which entitled him, "to visit the site where there's
a new contract by the employer and tell the people that
they must join the union in order to be employed at that
place" When asked whether he then did so at the 16
February orientation meeting, he answered , I did so "
Thus it is clear why and how Kachmank proceeded to
tell new employees, who had already been told in es
sence as much in their interviews with Hudson, that they
were constrained to join Local 327 as a condition of em
ployment Based on his admission , he had no understand
ing and no interest of trying to organize those new em
ployees by advising them that they had any options He
proceeded to talk to them based on the assumption that
they were already subject to the national contract, as he
had stated in his repudiated affidavit, much of which he
inadvertently admitted to be accurate Even if Boggs
was credible, which she is not, the order of presentation
is clear, i e, Kachmank was presented and identified and
he told the employees why he was there without refer
ence to any options to them If indeed they did seek to
have some consensus about representation per se during
his absence , which, had it occurred at all, was to allow
them to designate a steward, it necessarily followed the
statements of Hudson and Kachmank about the obligato
ry nature of Local 327 representation and had not pre
ceded Kachmank s statement, as is argued by Respond
ent Systems
It is unnecessary to find that Systems and Local 327
actually executed a contract on 3 January, 30 January, or
some other date prior to 16 February, because it is clear
from the testimony of Kachmank, Hudson, and Sirow
that Systems had predetermined to, and did, recognize
Local 327 as bargaining agent of employees it had not as
yet hired and predetermined that it would apply the
standard type Local 327 contract to 300 Sixth Avenue,
as Systems told Sirow that it would during its solicita
tions of this highly desirable work from First Union Cic
ero s unconvincing testimony to the contrary is not cred
ible The actions and conduct of Hudson and Kachmank
are fully consistent with this conclusion and totally at
variance with Cicero s disingenuous testimony of indif
ference to the identity of the employees designated bar
gaining agent, on which he insisted despite an evasively
conceded awareness of Local 29 s relentless efforts to
maintain a downtown wage rate level that undermined a
competitive bid Cicero testified The idea is to be com
petitive " The evidence demonstrates that not only was
Systems indeed concerned about whether Local 29 might
be designated as bargaining agent at 300 Sixth Avenue
but that it predetermined to recognize another union i e
Local 327 with which it had a successful relationship
and with which it had been able to negotiate lower wage
rates With respect to the possibility that Systems might
under certain circumstances have been lawfully obliged
to recognize and bargain with Local 29, Cicero after
much evasion, testified about his state of mind prior to
16 February
As I understood the law at that time, [it] is that,
even if I had hired all of those people that previous
ly worked for the previous contractor at 300 Sixth
Avenue and brought them in with the total crew
1087
that I had working the first day of that contract,
that I would not have a legal obligation to negotiate
with Local 29 since they would not represent a ma
jonty It was my understanding that first day of em
ployment was key
This testimony strongly suggests that Kachmank s recog
nition demand of 21 February was premised on employ
ee designation made on 16 February He conceded that
he was aware that if the predecessor employees had con
stituted a majority of Systems' crew that hypothetical
ly" a bargaining obligation arose with Local 29 In vig
orously objecting to that line of questioning directed to
Cicero's motivation in February 1986, Systems counsel
stated its position that
even if they all applied, there is no way they could
have been a majority of the work force in that
building because it was staffed on a part time basis
[i e, a higher number of employees]
However, Boggs' testimony indicated that only nine
new employees attended the meeting at which she
claimed Local 327 was designated bargaining agent, of
whom two soon departed According to her, the reas
signed employees were not present Furthermore, Hud
son's credible testimony indicated that it was never the
intent to retain all those extra transferred employees, but
that there was an expectation that only some of them
might exercise an option to transfer downtown perma
nently after the initial period of flux Accordingly, I dis
credit Cicero's improbable testimony that Kachmarik
claimed to have been designated bargaining agent by all
20 or 25 employees at 300 Sixth Avenue on what Cicero
believed to be that critical first day of operation
Neither before nor immediately after 16 February did
any of the predecessor employees nor did Local 327
make any employment requests or bargain demands on
Systems In a letter from Cicero to Systems attorney
dated 20 March forwarding a copy of the Local 327
labor agreement, he stated
Here is the Union Contract you requested that is
in force at the 300 Sixth Avenue Building It took
some time to let the Union review it since we did
the typing
It has been over a month now that we have been
cleaning that building with employees who are rep
resented by the Painters and Allied Trades Union
Local 327 We have yet to hear a 'peep' from
Local 29 and I think it is because they have so
many problems that are solvable that they can t
waste time on a no win situation
Your help and counsel are partially responsible
for our enviable position and we thank you for
being in our corner
The meaning of the language in that letter is clear
Cicero revealed that Systems had not wanted to recog
nize and bargain with Local 29 and that Local 29 s ap
parent quiescence invoked congratulatory satisfaction
from Cicero Any other meaning is insupportable Cic
ero s testimonial proffered explanation that the envia
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ble ' position did not refer to the subject matter of the
letter, as the context certainly discloses but that it refers
to Systems' obtaining of the First Union contract is as
patently mendacious as was his unconvincing demeanor
Cicero s testimonial indifference to bargaining agent
identity is revealed as a cynical prevarication Further
more, it can be inferred from that letter that Systems not
only wanted to avoid Local 29 recognition, but that it
did something affirmative to bring about that enviable
state of affairs Finally, the language in that letter en
hances the conclusion that recognition of Local 327 was
tendered more than a month prior to 29 March
None of the eight predecessor employees had thereaf
ter directly requested employment by Systems at 300
Sixth Avenue They were not notified of their nonreten
tion until the time when Systems' assumption of it was
imminent They were then told by Becky that Systems
intended to utilize its own employees Local 29 picketed
300 Sixth Avenue commencing on 31 March, which led
to the filing on 2 April 1986 of an unfair labor practice
charge in Case 6-CC-1664 against Local 29 by First
Union which alleged violation of Section 8(b)(4)(i) and
(iii)(B) of the Act On 3 April, Local 29 filed in Case 6-
CA-19012 an unfair labor practice charge against First
Union which alleged that First Union, as a joint employ
er with Systems, terminated the predecessor employees
at 300 Sixth Avenue in violation of the Act Case 6-CC-
1664 was settled by an informal Board settlement ap
proved by the Regional Director on 5 May 1986 On 16
May 1986, the Regional Director approved the with
drawal of Case 6-CA-19012 On 10 July 1986, an unfair
labor practice charge was filed by Local 29 in Case 6-
CA-19231 against Systems On 11 August 1986 an unfair
labor practice charge in Case 6-CA-19407 was filed
against First Union which alleged that First Union had
terminated employees of 300 Sixth Avenue unlawfully on
14 February 1986 That charge was amended on 2
March 1987 to allege that on or about 15 December
1985 First Union directed Systems to refuse to employ
the predecessor employees at 300 Sixth Avenue in viola
tion of the Act
From 16 February 1986 until May 1987 at 300 Sixth
Avenue about 100 different persons were utilized by
Systems at one time or another as part time custodial em
ployees including 31 persons in 1987 As of about April
1987, there were in excess of 20 regular part time em
ployees utilized who each worked anywhere from 15 to
35 hours in a pay period However, 16 March to 16
April 1986 only 12 regular cleaning persons plus Super
visor Boggs were employed during all or part of that
period according to the record evidence Of those 12
employees 1 commenced work on 6 April, 1 ceased on 3
April, and 1 ceased on 31 April Additionally, for part of
that same period two employees from Kaufmann s Ross
Park store continued to be utilized, one from 16 Febru
ary through 23 March and one from 17 February
through 6 April From 16 April to 16 May, 16 regular
part time employees, including Boggs, were utilized, of
whom 1 started on 13 April and ceased on 29 April 4
started at the middle or end of May and 1 ceased 13
May
E Events Leading to the Porter Building Staffing
The Porter Building is in downtown Pittsburgh about
two blocks away from the 300 Sixth Avenue building
Alfred L Black, a Systems witness is the building man
ager of that building and also of the Allegheny Forbes
Building and the Park Fifth Avenue Building in down
town Pittsburgh He performs his services on behalf of
the owner, Lehman Company He testified to the follow
ing events By letter dated 27 December 1985, Lehman
notified National Cleaning Co of the termination of con
tracts for cleaning services at the Porter Building as of
30 January 1986 That letter complained of unsatisfactory
performance Lehman, however, agreed to continue Na
tional s service in response to a promise of improved
services However, Lehman purportedly remained dissat
isfied with the poor quality of service and a second can
cellation notice was issued on 23 July 1986, effective 1
September 1986 Black conceded, however that there
also had been a payment dispute with National over va
cancy credits He conceded that the reason he ultimately
canceled the National contact was 'economic In the
meantime , Lehman had already obtained bids from other
contractors in March 1986 and thereafter, one of which
was submitted by Systems which was considerably lower
in cost than the National contract, i e , 9 cents vs 6 cents
per square foot, or annual savings of $60,000 Black testa
feed that he was concerned only with the final cost bid
and not how it was based, i e , labor cost savings by use
of part time employees, or from other cost savings
However he ultimately conceded that bids were based
on what contractors were obliged to pay their own em
ployees He denied any knowledge of the identity of Sys
tems employees bargaining agent, but conceded that
during negotiation with Noble and Cicero he was aware
that Systems did maintain a labor contract with a union
Noble conceded that during the meeting with Lehman
and Black he had become aware that the National em
ployees were represented by Local 29 Black was first
contacted by Systems salesperson Grossman in February
or March and had two subsequent meetings with Noble
and Cicero He denied that any understanding had
been reached regarding Systems employees union repre
sentation Black testified that he was unaware of a Local
29 practice of insisting on full time employment, and that
it was not until 25 July when a contract was drawn up
that he was aware of Systems intent to use part time em
ployees He testified without contradiction that National
had cleaned the Allegheny Forbes Building at a consid
erably lower cost than the Porter Building , despite the
fact that the Allegheny Forbes Building was larger and
that seven or eight part time cleaners were used who
were also represented by Local 29 At the Porter Build
ing National employed six full time cleaners who were
represented by Local 29 Noble testified that he had first
become aware that Local 29 had represented the Porter
Building cleaners when that fact surfaced in contract
negotiation meetings with Grossman Cicero Lehman
and Black in early May when Lehman or another of
Lehman s representatives mentioned it
By cover letter dated 27 May 1986 signed by Systems
vice president and salesperson Grossman Systems for
SYSTEMS MANAGEMENT 1089
warded to John Hoy Lehman s director of real estate, a
package of resumes, references, and a descriptive state
ment of operations in addition to its proposed bid A his
tory and detailed description of Systems history, poli
ties, and operations is contained therein The training of
custodial employees is described in extreme detail In
subsection A, entitled Housekeeping Personnel under
section I Training, it states in part
SMI s [Systems ] employee turnover is a mere one
sixth of what it was prior to instituting this training
program-Employee morale and attitude have im
proved to such an extent that everyone takes pride
in the condition of their area and more importantly
in themselves This is why we guarantee a stable
work force of not only full timers but part timer em
ployees as well [Emphasis added ]
Under subsection B, Management and Supervisors, the
promotion of employee efficiency is described Thereaf
ter, in section IV, Work Load Control, staffing proce
dures are described Nowhere is there a statement to the
effect that Systems hires eventually all part time employ
ees because of their greater efficiency, nor that it main
tains a staff of predominantly part time employees The
bid does not contain an itemized cost allocation analysis
The quoted language above reveals that Systems holds
itself out as an employer with a low employee turnover
and a stable work force of trained, experienced not only
full timers ' but also part timers as well The inference
to be drawn from that phraseology is that full time em
ployees are a substantial, if not major part of Systems
cleaning staffs
Noble testified that on acquiring the Porter contract,
but before commencement of work meetings were
held at the Newcastle offices on the subject of the Porter
Building staffing Present were Noble Cicero Palmer
and Robert Miller The buildings geographical location
at that time fell within the jurisdiction of Systems dis
trict manager, Robert Miller Systems' vice president in
charge of custodial operations, Dale Palmer, was about
to leave for North Carolina in connection with a new ac
count there It is not clear who succeeded Hudson as re
gional manager at that time However Miller testified
that he reported directly to Palmer Apparently then
Palmer was functioning as Miller s regional manager
Miller as district manager was responsible for 11 loca
tions and superior to-each of the building supervisors
who reported to him, including those at 300 Sixth
Avenue the Porter Building, and Ross Park Miller had
been hired on 14 July Noble testified that he was con
cerned about Miller s lack of experience with Systems
and that he wanted reassurance of Miller s capabilities
Further Noble wanted to initiate the same philosophy
of overstaffing approach to Porter as he had with 300
Sixth Avenue to make a favorable immediate impres
sion" on Lehman in order to lure more of its business
Noble testified that at one meeting the discussion cen
tered on how the building was to be staffed The coin
mencement date was delayed from 25 August to the
Labor Day weekend for a starting date of Tuesday 1
September Noble testified that they discussed the source
from which employees would be drawn From his testa
mony Palmer was still present It is not clear why the
staffing had not been left to Palmer as Miller s regional
manager as it had been with respect to the hiring of new
employees at 300 Sixth Avenue with Regional Manager
Hudson Noble testified that it was decided to draw on a
pool of Systems special service employees who had been
laid off from the Ross Park account, as it was good
sense, and mitigated unemployment compensation costs
and he directed Miller to draw on this source first Fur
thermore, Miller was already familiarized with those em
ployees Also, it was decided that because Supervisor
Betty Boggs had developed a supply of about five or
six call ins' at 300 Sixth Avenue, that those also could
be utilized Furthermore, he testified that Miller had
people that were floating whom he could bring in now
and find a home Noble stated at this meeting that he
wanted to look, here again, at some Kaufmann people
despite the fact that Systems had not been successful
in obtaining Kaufmann s employees to transfer perma
nently to Sixth Avenue He instructed Miller to seek out
Kaufmann's and 300 Sixth Avenue employees as sources
of experienced workers for the Porter Building
Miller testified as a witness for the General Counsel
He was no longer employed by Systems at the time of
the trial, having severed relations 31 October 1986 Ac
cording to Miller much more was discussed at that
meeting with Noble, Cicero, and Palmer He testified
that he and Palmer were called on to discuss the plans
for the Porter Building operation after which either
Cicero or Noble, he could not recall which of them,
stated that he wanted Miller to bring in people who
had already filled out cards for [Local] 327 and
people who [were then] presently employed by Systems
Management who had already been active with [Local]
327 He testified that They i e Cicero or Noble,
stated without explanation to him that They wanted all
327 employees in the building Miller testified that he
was similarly ordered to hire Systems employees who
had signed a check off card" at Ross Park, and to trans
fer 300 Sixth Avenue employees who were already
active members of 327 and to utilize whatever source I
had to pull them from maybe Kaufmanns at Mt Leba
non He testified that he was told again by either
Cicero or Noble that such persons would automatical
ly become members of Local 327 Miller testified that
he suggested that it was illegal to put 327 employees
and automatically assume they were union employees
to which Cicero responded he would consult legal coun
sel Miller testified that during the meeting either Cicero
or Noble ordered him to utilize Lisa Mobley Local 327
steward at 300 Sixth Avenue, as the key to getting the
327 employees into the building, and that her transfer to
the Porter Building was a must Elsewhere he testified
her characterization was `the key plant Although
Miller conceded that he was not told explicitly not to
hire the predecessor employees at Porter, the very
nature of his direct affirmative orders precluded such an
option
Miller testified that a day or so later he received a
telephone call from Cicero in which Cicero thanked him
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
told him that he had obtained legal advice, but that inex
plicably Cicero was silent on reference to, but did not
contravene , the earlier orders Because Cicero was silent
about prior instructions, Miller assumed that they re
mained outstanding Miller testified that immediately
after the meeting he had discussed with the Systems' su
pervisor at 300 Sixth Avenue, Betty Boggs , the prospect
of transferring a group of employees, which at first was
contemplated at seven persons but thereafter was re
duced to four He did not testify that he instructed her
that a pro Local 327 employment packing scheme had
been ordered He testified that the other source he
looked to was the Kaufmann 's store in Ross Park He ex
plained that the Ross Park shopping mall had first
opened in July and Systems had been awarded the con
tract for the construction residue cleanup prior to public
opening, and that on the 13 August 1986 completion, the
25 to 30 cleaning persons hired for the job were laid off
but had been placed on a `wait list for the next Sys
tems job that came on He conceded that some of those
construction cleanup persons had been hired in July, for
the short term job, and as early as then were promised a
subsequent transfer at the closure of that job He testified
that each and every temporary construction cleanup
person hired had been promised a subsequent transfer to
the next job opening
Miller testified with some uncertainty that he had in
tended a permanent Porter crew of about 10 persons
after the first week or so " Miller testified with respect
to the Ross Park construction cleanup crew called Spe
cial Services, that there were about ten to fifteen of
[those] employees who were given 327 cards to sign,
but that he did not then know their identity and that he
was given a computer printout sheet which disclosed a
list of employee names of Local 327 members He testi
feed that he received this document from payroll clerk
Mrs Cicero, at the Newcastle office He testified that
from that list which contained only names he selected
employees Fred Broadnax Leroy Taylor Randy Hig
gins, David Jordan Kevin Trowery and Marshall West
He testified that he obtained the printout of names of
employees by visiting the Newcastle office where he ap
proached Mrs Cicero and asked her for the list [of]
names of employees who filled out a union card for
Local 327, which [he] was ordered by Mr Cicero to
do He testified that she gave him the printout without
comment Apparently he did not retain the document
Mrs Cicero did not testify
Miller testified that although the Ross Park cleanup
operation was not represented by Local 327, the Kauf
mann's North Hills store (apparently also referred to as
"McKnight ) had closed and moved into Ross Park mall
and some of the Systems employees at the North Hills
store who had been active Local 327 employees and rep
resented by Local 327 transferred to the Ross Park Kauf
mann's store, at which the McKnight contract may or
may not have been transferred He did not explain
whether they were considered to be part of a prospec
tive pool of Porter transferees He testified that the em
ployees who transferred from 300 Sixth Avenue were al
ready Local 327 members presumably pursuant to the
union security clause of the labor agreement and that
their replacements would be newly hired persons subject
to the same union security clause However he testified
that two of the transferees from 300 Sixth Avenue had
apparently abruptly decided to transfer back to Porter
In cross examination, he testified that he transferred five
or six employees from 300 Sixth Avenue, seven employ
ees from Ross Park, and had hired his stepbrother, Ed
Miller In further persistent cross examination, he ac
knowledged as true his affidavit statement to the effect
that he also hired about five employees whose `applica
tions" were on file and who were not members of
Local 327 He also conceded that none of the Ross Park
employees had told him that they were Local 327 mem
bers nor had he actually seen any union members cards
or applications filled out by them He thus relied entirely
on that computer printout He offered no explanation
about why he had hired as many as five applicants"
who had not evidenced past membership in Local 327
He insisted, however, that he hired the Ross Park em
ployees who were among an unspecified number listed
on the computer printout because they were supposed to
be Local 327 employees, and that there were only a
handful" of such cardsigners among all the Ross Park
employees Miller was silent about having a floating
supply of persons to be drawn on but he did not contra
dict Noble
Noble conceded that at the Porter preopening staffing
meeting, there may have been a reference to Local 327
He explained that it was discussed that some of the 300
Sixth Avenue transferees could very likely be members
of Local 327 ' but he asserted that they did not know
what the ultimate mix would be He did not provide a
context for the Local 327 reference i e what prompted
it With respect to Miller s testimony regarding a coin
puter printout Noble testified that he had been unaware
of the existence of any such record, and asserted that
there had been no conversation at the meeting to obtain
any kind of printout or to hire Local 327 people out of
Ross Park services, and that Miller warn t telling the
truth From the testimony of both Miller and Noble
there was no discussion whatsoever about the possibility
of utilizing any of the predecessor on site employees As
with the 300 Sixth Avenue predecessor employees there
is no evidence that Systems had determined not to use
their services because of the quality of their work or
that they attributed the poor service and conditions at
the buildings to be the result of employees' poor work
rather than the result of lack of supervision inadequate
supplies, or poor management
In redirect examination, Noble testified that Lisa
Mobley was mentioned at the August Porter Building
staffing meeting as a highly thought of employee and
potential supervisor He denied any reference to her as a
key plant ' or to her status as union or nonunion
member He testified that all the Sixth Avenue employ
ees were offered a voluntary transfer and were thus
given an opportunity to assist their employer who
needed their cooperation and was implicitly beholden for
this cooperation
Cicero was called by Respondent for the expressly
limited testimony concerning subsequent recognition and
SYSTEMS MANAGEMENT 1091
bargaining with Local 327 at Porter and certain mci
dents involving the alleged subsequent employment at
tempts by predecessor employees He was not called on
to and he did not, contradict any of Millers statements
concerning the Porter Street staffing meeting , nor any of
the statements attributed to him by Miller Palmer did
not testify , nor did Mrs Cicero
Respondent Systems uncontroverted record evidence
reveals the following employees were utilized for the ini
tial Porter Street operations Five employees , Broadnax,
Higgins , West , Jefferson , and Trowery were recalled
Ross Park special services employees , i e , unrepresented
cleanup crew Jordan was designated on Systems
records as having worked at various locations from 17
July to 9 August 1986, and unemployed until 2 Septem
ber He could very well have been assigned to the Ross
Park cleanup operation , as Miller testified and Systems
asserts in its brief Taylor was a designated "floater" em
ployed at various Systems ' locations from 24 July 1986
until assigned to Porter on 2 September He was there
fore not unemployed prior to 2 September and also was
not a former North Hills (McKnight ) employee repre
sented by Local 327 Three persons were voluntarily
transferred from 300 Sixth Avenue-Mobley , Harvey,
and Butler
Respondent Systems asserts in its brief that in addition
to Taylor , employees Baxley , Dingle , Hall and Mahone
were floaters selected by Miller for Porter employ
ment starting 2 September, citing Miller s testimony re
garding five unidentified persons hired from applica
tions on file , and the testimony of Accounting Manager
Thomas Onestack who testified in reference to the
record evidence That evidence discloses the following
employment history Baxley was employed directly at
Porter on 4 September and terminated 30 September
Salina Dingle and Darlene Hall also are disclosed to
have commenced Systems' employment in September di
rectly at the Porter Building Hall worked from 2 to 11
September and Dingle worked from 12 September to
March 1987 It was disclosed from the records that
Malone commenced employment on 8 April 1986 at 300
Sixth Avenue where she worked for 1 day and thereafter
at another account from 10 April until 3 September and
from 4 September at the Porter Building She was termi
nated on 28 October 1986 The record evidence supports
Miller s description of D Hall Dingle , and Baxley as
applicants for employment and not regularly employed
floaters Systems ' record evidence discloses only four
persons explicitly designated as previous floaters, i e ,
Taylor Edward Miller and two others who were uti
lized only in preopening setup , i e, delivery of materials
in August Mahone however , having worked at two
prior locations could justifiably be characterized as a
`floater Significantly , Miller did not contradict Noble's
characterization of them as a floating pool of potential
employees for whom Miller was seeking a permanent
home Edward Miller worked until 11 September Sys
tems record evidence also discloses that on 18 Septem
ber 1986 , Tommy or Tammy Hall was hired directly at
Porter and worked there until 24 September and has not
been employed again until employed at 300 Sixth
Avenue from 7 to 29 January 1987 Also, Tonya Hender
son was hired at 300 Sixth Avenue and worked 1 day
there and was employed at Porter from 15 September
through 31 December 1986 Employee English was hired
19 September directly at Porter , worked until 11 Octo
ber, and was reemployed at 300 Sixth Avenue in 1987
The record evidence submitted by Systems without
objection consisted of summaries of documentary evi
dence Respondent proffered the underlying business
records for inspection by the General Counsel Subse
quent to an opportunity provided to the General Counsel
to inspect that data , much of which was produced pursu
ant to the General Counsels own subpoena no challenge
was made to that record evidence nor was it rebutted
According to that evidence , as supplemented credibly by
testimony of Onestack , Systems ' records disclose no rec
ordation that any of the initial Porter Building employees
had signed union membership cards and/or authorized
dues deduction for Local 327 as of 2 September, with
the exception of Lisa Mobley and Shelley Harvey Al
though its significance is undervalued by the General
Counsels brief consideration of it , this evidence remains
unrefuted and establishes the fact that the purported
scheme netted only two apparent Local 327 members at
a period of peak employment which Cicero considered
was the key time determinant of successorship obliga
tions
With respect to Miller s testimony regarding computer
printout of Ross Park employees who had executed dues
authorization cards or union membership cards, Onestack
testified that there were no such computer printouts
maintained with that information He testified that hand
generated ledger sheets under the control of his assistant,
Mrs Cicero , would contain that type of information
The employee ledger sheets for the laid off Ross Park
employees actually rehired at Porter July and August
reveal no deductions for union initiation fees or union
dues Furthermore , with the exception of Jefferson all
those employees , including Taylor, had worked for Re
spondent for less than 30 days at Ross Park , thus rein
forcing the evidence that they had not in fact executed
dues deduction authorization while at Ross Park Thus
the undisputed record evidence demonstrates that Re
spondent Systems had no records extant on which to
provide Miller with the information he vigorously insist
ed was given him by way of a computer printout at
Noble s or Cicero s orders as part of a deliberate scheme
The General Counsel proffered no rebuttal evidence or
testimony to contradict this record evidence, or on
which to infer its fraudulent contrivance None of those
former Ross Park employees were called to testify in re
buttal
With respect to the three employees transferred from
300 Sixth Avenue, Patricia Butler had commenced em
ployment at 300 Sixth Avenue on 31 August 1986 She
testified as a General Counsel witness but did not rebut
Systems record evidence that she did not sign a dues
deduction authorization for Local 327 prior to the trans
fer Indeed , she had no opportunity to demonstrate any
proclivity for pro Local 327 during her short stay at 300
Sixth Avenue Shelley Harvey a General Counsel wit
ness testified that she had been hired at 300 Sixth
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Avenue 16 February 1986 Neither Harvey nor Butler
testified about any reference to their union proclivities in
the circumstances of their transfer to the Porter Building
Mobley, the Local 327 steward however, testified that
Boggs asked her and five or six unidentified employees
to work at the Porter Building for 1 or 2 weeks When
asked what reason Boggs stated, she testified that the
stated purpose was to help commence its operations, i e
help open the building up, get it into shape On ex
haustion of recollection about what other reason was
stated by Boggs, Mobley hesitantly responded to the
question of what union reference there may have been
we were told that because we were union-or, that
we had to be union to go to the Porter Building
and that s why she needed us to go because we
were union
She testified this conversation occurred about 10 days
prior to the opening and that she Harvey , Catherine
Kunesky and Pat Thomas also accompanied her to the
Porter site She testified without corroboration that after
about 2 weeks they were offered the option of staying or
returning but that Kunesky and Thomas returned and
she and Harvey stayed The record evidence fails to dis
close any Porter Street employment of Kunesky or Pat
Thomas Mobley was not corroborated by either Harvey
or Butler nor any other employee In cross examination,
she testified that six employees were asked individually
to volunteer , rather than asked as a group She admitted
that as many as 10 could have been asked , that she was
asked , not ordered to transfer that she volunteered and
that both she and Harvey wanted the assistant supervisor
job there , and that the stated purpose was to assist in
getting the building in shape
Boggs testified without contradiction that Miller had
asked her to obtain the best cleaners to volunteer and
assist in the opening of the Porter Building because it
was in poor condition She corroborated Mobley to the
extent that she did ask this of five or six cleaners at 300
Sixth Avenue but she claimed that she did so because
these were the best workers She did not identify these
persons except that she trained Mobley and Harvey to
be back up supervisors who each were contending for
promotion as backup supervisor at Porter and they each
told her that was the reason they wanted to transfer
Wilbur Watts was assigned as supervisor at Porter
Boggs failed to testify that she explicitly told these em
ployees that they were being asked to transfer because of
their abilities , and she did not explicitly contradict Mob
ley s testimony except to the extent that she claimed that
Mobley asked to be transferred whereas Mobley testified
she was solicited Despite the failure of a clear contradic
tion and Bogg s lack of credibility in other areas I am
constrained to discredit Mobley because of lack of cor
roboration , inconsistency , lack of spontaneity and con
viction in demeanor and poor recollection which re
quired prompting by counsel
F Recognition of Local 327 at Porter Building
Mobley testified that on 2 or 3 September Kachmank
visited her at her home carrying with him union
forms that employees filled out for the 300 Sixth
Building to pass out to the people at the Porter Build
ing in order to receive more money [and] okay plus we
had to be in the Union Thereafter she distributed these
forms and returned them to Kachmank She testified that
Kachmarik told her that there was a chance of obtain
mg a 35 cent raise if they signed the forms and that
he said something about that it wasn t-he didn t
want to make the same mistake that he did at the
300 Sixth Avenue building at the Porter Building
or something of that nature that I recall
In cross examination, she admitted that Kachmank did
not tell her in so many words that Local 327 cardsign
ing was mandatory She did not contradict Kachmank s
testimony that he told her that the employees would also
be solicited by Local 29, and they had the right to
choose which Union if any, they wanted as bargaining
agent She testified that on 5 September she solicited
about 12 or 13 Systems Porter employees to sign union
membership cards She identified that the following
signed cards on the same date Jordan, Butler, Harvey,
Higgins, Sharon Mahone (often erroneously referred to
as Malone) Taylor Trowery, and West They all signed
cards which she conveyed to Kachmank In soliciting
those cards she testified that she told the employees that
the forms were union authorization cards and that Kach
marik said that if they wanted to earn more money, then
they had to sign up and go union She testified that she
dated all the cards 5 September on his instructions and
had done so on the date he gave them to her However,
it is not clear that they were not actually signed on that
date She did not testify that she told any employee that
union membership was a condition of employment Mob
ley s testimony made no reference to any request,
demand, or suggestion by Boggs Miller, or any other
Systems supervisor or agent that she engage in organiza
tional activities for Local 327 nor that they even dis
cussed it with her Thus if she were to be a key plant
she was to be programmed by Local 327 and not direct
ly by Systems
Kachmank testified that within a day or so he re
ceived from Mobley union representation and dues
checkoff authorization cards dated 5 September In adds
tion to those named by Mobley he identified cards
signed by employees Henderson Broadnax as well as
one signed by Mobley Kachmarik testified that based on
receipt of these cards he demanded bargaining recogni
tion of Local 327 by letter dated 9 September to Cicero
which forwarded the cards and which named the card
signers with the exception of Henderson That card is
dated 14 November 1986 Kachmank s identification of it
as part of a group identification solicited by counsel for
the General Counsel must have resulted from inadvert
ence There clearly were 10 such cards executed on 5
September
The Porter Building cleaning employees had been told
by their employer, National, on 28 August that they
were terminated as of 29 August because a new contrac
tor would not require their services In the past these
employees some of whom had been employed there for
SYSTEMS MANAGEMENT
11-20 years, had been automatically retained by a succes
Sion of cleaning contractors without employment inter
ruption and without any effort on their own behalf
None of these employees had received any contact from
Systems About 5 p in on 2 September , six former Na
tional employees accompanied by Local 29 representa
tives Pipes and Billy Jo Jordan entered the Porter Build
ing and confronted Miller , of whom they demanded that
they were ready to perform work The testimony of
Pipes and five of the employees vanes about what was
said (The sixth employee had since deceased on an un
specified date ) It appears that Miller told them that be
cause Systems , the new contractor , had its own work
force , it did not need their services and when they asked
for job application forms , he said that he had none Pipes
testified that he erroneously told Miller that the employ
ees had not had prior notice of termination During the
confrontation , Lehman 's manager, Black , arrived and
during a discussion in which Pipes alluded to the 18 year
tenure of the former employees, according to Pipes,
Black disclaimed concern and stated that Local 29 did
not have jurisdiction in the building and that Systems
had a contract with Local 327 and referred him to Sys
tems Black contradicted Pipes and testified that the only
contract he referred to was Lehman s contract with Sys
tems , and that he had no awareness of what union, if
any, represented Systems employees on that site Pipes
was not corroborated by any of the five employees who
were present and who testified about the incident, nor
was Miller called on to corroborate him Pipes did not
evidence sufficient certainty of recollection of the con
frontation I find that the evidence falls short of support
ing a conclusion that Black was concerned about the de
tails of how Systems was able to perform its contract to
the point where he had been assured prehire recognition
of Local 327 I credit Black 's denial
Pipes and the former National employees departed on
Pipes promise to seek NLRB assistance , but neither he
nor the employees left with Miller the employees names
addresses or telephone numbers
By mailgram dated 3 September 1986 to Cicero, Local
29 claimed exclusive bargaining agent status of the
Porter cleaning employees and did "submit" the names
of former National employees as applicants to be con
sidered for employment at the Porter Building On 3
September the unfair labor practice charge was filed in
Case 6-CA-19465 and received by Systems on 5 Septem
ber By letter dated 5 September Cicero in response
disclaimed any intent by Miller to refuse to accept job
applications and that their applications would be accept
ed at 5 p in on Tuesday , 9 September at the Porter
Building
On 9 September, the six former National employees
again appeared at the Porter Building where a second
confrontation ensued between the group and Miller, who
testified that they approached him in the basement area
loudly and rudely As at the earlier occasion , Pipes was
prohibited by Miller from talking to Systems employees
Miller testified that he was enforcing his customary prac
tice of prohibiting outside union solicitation that tended
to interfere with an employees active duties As one of
the applicants credibly testified there was all kinds of
1093
commotion , and they were all upset and that the
scene became a madhouse as the former employees re
ceived , filled out and submitted employment application
forms Miller testified that he heard one applicant loudly
state , Well, I in not working for this type of wages or
nonsense He testified that as they were floating-
walking down the hallway that they said , we re not
going to work for substandard wages The six filled out
applications forms were received by Miller The appli
cants named themselves as references In the entry of the
form reading would you work and followed by spaces
to be designated full time , and part time , the appli
cants all designated the full time entry but not the
part time entry All indicated for the inquiry rate of
pay expected ' an amount almost and in one case more
than double the rate Systems was paying its part time
Porter employees
Miller testified that contrary to usual procedures he
sent the applications to the main office in Newcastle on
Cicero s instruction Miller testified that Cicero told him
that the applications would be taken because of the
unfair labor practice charge filing Cicero testified that
he reviewed each of the applications that sought full
time work at excessively higher rates and received from
Miller an account of the loud joint application scene de
scribed above , and on that basis concluded that the appli
cants did not seriously seek employment but rather
sought to make a statement for Local 29, and accord
ingly he did not hire them
By letter dated 11 September to Kachmank from
Cicero Systems recognized Local 327 as exclusive bar
gaining agent at Porter Street based on the submission of
10 authorization cards which Cicero calculated as 83%
of our crew on the job Cicero offered to commence
contract negotiation on 17 September In addition to the
10 cardsigners who were still employed at Porter on 11
September employed on that date also as their last date
of employment at Porter were Edward Miller T Hall
and D Hall Subsequently commencing Porter employ
ment were Dingle on 12 September, Henderson on 15
September and English on 19 September
By mailgram sent on 17 September to Systems Local
29 claimed representational interest in the Porter employ
ees On 25 September , Local 29 filed a petition for certi
fication of representative for the Porter Street employees
in Case 6-RC-9751
Kachmank testified that he and Noble had agreed on a
collective bargaining contract on 25 September and that
he sent the proposed contract to all employees and then
arranged for a ratification meeting, which was held on 6
October at the Martin Building at which only two em
ployees attended and at which both employees rejected
the contract Kachmank testified that one of the employ
ees told him that Mobley, in the course of soliciting
union cards stated that the union card execution was a
condition of employment retention Thereafter Kach
mank arranged for and held a meeting with 10 to 12 em
ployees at the Porter Building , exclusive of the absent
Mobley , at which Kachmarik testified that they all attrib
uted the same comment to Mobley Kachmank testified
without contradiction that initially the employees told
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
him they did not want him to represent them but, after
meeting privately in his absence, they called him back to
the room and stated that a majority of them had decided
to retain his representation Butler testified without con
tradiction that Supervisor Watts told her in advance
when and where a union meeting was to be held, and
that it lasted from 5 to 7 p in , well into shift time Nei
ther she nor any other employee testified about what oc
curred at this meeting Nor did any employee except
Mobley testify about Local 327 authorization card solici
tation
Kachmank testified to the following events He and
employee Jordan met with Noble on 20 October to re
negotiate a contract Noble rejected Jordan's request for
higher wages Jordan then stated that the employees
changed their minds about continued representation by
Local 327 Subsequently, on the same date, Kachmank
again met with the employees at the Porter Building
about 5 p in Not all, but a majority, of the employees
were present Kachmarik was told that they no longer
desired him to represent them On 21 October, Kach
mank telephoned Noble and stated that the employees
rejected Local 327 representation Kachmank testified,
and Noble confirmed, that he expressed displeasure over
the resulting withdrawal of union recognition Noble ex
plained that he was concerned because of the possible
impact on employee morale and job performance caused
by employee ill feelings toward Kachmank By mailgram
dated 23 October addressed to Systems, Local 29 assert
ed that the Porter employees desired Local 29 represen
tation and demanded access to speak to the employees
About 29 October, Kachmank received a letter dated 22
October in which a disclaimer of representation because
of alleged cardsigning misrepresentation was attested by
the purported signatures of employees Higgins, Jordan,
West, Mobley, Taylor, Broadnax, and Henderson, whose
card is dated in the same handwriting as the signature
with a date of 14 November and who was not one of the
original cardsigners by virtue of her late employment
date In cross examination, Kachmank testified that at an
unspecified date under unknown circumstances, he ob
tained an undisclosed number of additional cards
Clearly, one of those cards was executed on 14 Novem
ber Kachmank testified that he proceeded on apparent
rerecognition by Cicero to agree to and execute a con
tract for the Porter employees on 17 December 1986,
covering a unit of `all custodians and working supervi
sors,' and having a scope effective `within the bound
apes of the United States," which incorporated by refer
ence "all work outlined in the attached agenda, ' which
stated that the addendum applies only to the jobsite
known as the Porter Building' There is no reference
thereon to a specific length of workweek or to full time
or part time work
Noble testified that he received a letter dated 25 No
vember 1986 from Kachmank That letter described a
misunderstanding of the Porter Building employees
which constrained Kachmank to disregard all earlier au
thorizations It asserted that he had again met with the
employees and had obtained new cards which were en
closed and were signed by Broadnax, Butler, Dingle,
Harvey, Henderson, Taylor, and West In that letter
Kachmank advised that a ratification meeting of employ
ees would be held on 1 December 1986 By letter dated
10 December, Kachmank advised Noble that employees
had ratified the contract Subsequently, Kachmank and
Noble executed the contract on 17 December 1986 No
employee testified about any of these authorizations or
their circumstances
From September through 10 April 1987, 37 persons
had been utilized for varying periods of employment by
Systems at the Porter Building, and the number em
ployed as of that date is about that projected by Miller
The General Counsel asserts that Systems continued
without interruption to deduct dues from the paychecks
of the 300 Sixth Avenue employees who transferred to
the Porter Building The record does not clearly estab
lish this Onestack's testimony does not clearly indicate
an uninterrupted continuation of dues deductions, and he
elsewhere testifies that the practice of Systems is to
deduct dues only when an on site contract is executed
Purported documentation cited by the General Counsel
does not appear to have been offered and received into
evidence The General Counsels assertion that Onestack
admitted by implication the existence of an ongoing
Local 327 contract in early September with respect to
his testimony regarding a wage dispute between Systems
and Miller's brother, is not supported by unambiguous
testimony
G Independent Acts of Interference
Paragraphs 15(b) and (c) of the complaint were dis
missed on unopposed motions at trial Paragraph 15(a) al
leges that Systems Agent Palmer on or about 16 Febru
ary 1986 informed employees that it was a mandatory
condition of employment to retain Local 327 member
ship There was evidence about the conduct of Hudson
prior to that date but which was not alleged in the corn
plaint There was no evidence about such conduct by
Palmer
The complaint alleges that on or about 26 October,
Systems , by its Supervisor Watts at the Porter Building,
promised employees benefits if they supported Local 327,
and also interrogated employees concerning their union
membership, etc Paragraph 15(e) alleges that Boggs in
terrogated Porter employees concerning union member
ship etc These allegations were based on the testimony
of Butler, which was denied by Watts and Boggs But
ler's testimony about these incidents was so vague, un
certain , selective , cryptic, and without context as to pro
vide sufficient basis for a finding that violative conduct
occurred, and not deserving of any discussions , as indeed
the General Cousel failed to accord in the brief
IV ANALYSIS
A Applicable Precedent
The General Counsel cites NLRB v Burns Security
Services, 406 U S 272 (1972), as authority for the asser
tion that had Systems hired a sufficient number of the
preceding contractor's employees so that they would
have constituted a majority of Systems employee com
plement, an obligation to bargain with Local 29 would
SYSTEMS MANAGEMENT
have devolved on it The General Counsel contends that
Systems, aware of that constraint, discnminatonly re
fused to hire the employees of Pritchard, pursuant to
First Union's "requirements and discriminatonly refused
to hire National employees, in order to avoid recognition
of and bargaining with Local 29 In view of the substan
teal evidence of economic motivation, the General Colin
sel argues that opposition of unionization for economic
reasons, which results in the discrimination of union em
ployees, is nonetheless violative of the Act, and that Re
spondents are thus not exculpated The essence of the
General Counsel's theory of violation is that Respond
ents, being aware of the Burns mandate, perceived as the
only feasible means to achieve a lower cost contract was
to avoid bargaining with Local 29 which, with its eco
nomic power, had managed to achieve an apparent mon
olithic wage structure in downtown Pittsburgh until
recent times To avoid bargaining with Local 29, Re
spondents discnminatonly caused or effectuated the non
hire of the on site employees who had traditionally been
automatically retained, i e , again until recent times The
only options, according to the General Counsel, per
ceived by Respondents were either to hire the former
employees and be bound by the higher wage structure
and/or attempt to confront potential picketing and/or
other tactics by Local 29, or to hire a new work force
by dealing with a nonunion contractor or a contractor
who assured recognition of a more accommodating bar
gaining agent The tenor of the General Counsel's argu
ment suggests discrimination as the only perceived
option for economic relief
The Supreme Court in the Burns decision, however,
did allude to another option not considered by the Gen
eral Counsel In that case the Court stated that an other
wise successor employer is free to set the initial wages
and terms and conditions of employment on which it in
tends to offer those persons it ultimately hires except in
that situation where "it is perfectly clear that the new
employer plans to retain all of the employees in the
unit, ' and thus must first consult with the bargaining
agent prior to changing the old wage rates and terms
and conditions of employment In Spruce Up Corp , 209
NLRB 194, 195 (1974), enfd on other grounds 529 F 2d
516 (4th Cir 1975), the Board exempted the successor
from the "perfectly clear exception where that succes
sor made it clear from the outset" that it had intended
to set its own employment terms inasmuch as the number
of old employees hired would be contingent on their ac
ceptance of those new terms The Board stated
We believe the caveat in Burns, therefore, should be
restricted to circumstances in which the new em
ployer has either actively or, by tacit inference,
misled employees into believing they would all be
retained without change in their wages hours, or
conditions of employment, or at least to circum
stances where the new employer, unlike the Re
spondent here has failed to clearly announce its
intent to establish a new set of conditions prior to
inviting former employees to accept employment
1095
See also Holiday Inn of Victorville, 284 NLRB 916 (1987),
in which it was held lawful for a successor to make um
lateral changes contemporaneous to the announcement of
hiring However, the Board continues to find that where
the successor employer fails to hire its predecessor's em
ployees because of unlawful discriminatory motives, it
may not lawfully unilaterally set the initial terms on
which it will hire those employees Shortway Suburban
Lines, 286 NLRB 342 (1987), State Distributing Co, 282
NLRB 1048 (1987) Loves Barbeque Restaurant No 62,
245 NLRB 78, 82 (1979), enfd in pertinent part sub nom
Kaltman v NLRB, 640 F 2d 1094 (9th Cir 1981), in
which, however, the court's remedial approach was at
variance with that of the Board's status quo ante reinsti
tution of wage rates, etc
Assuming a nondiscriminatory economic basis for the
decision to set new wage levels and working conditions,
i e, part time employment, it would appear that another
valid viable option was available to a successor employ
er, i e , to set a lower wage rate and part time employ
ment in order to substantially undercut the established
competitor rates This option, of course, entailed the pos
sibility, if not probability, that the old employees would
accept employment under their rates and conditions and
seek higher rates through future bargaining on their
behalf by Local 29 Gundlach's vague testimony does
not necessarily preclude the inference that in late De
cember 1985 Sirow considered that valid, as well as dis
criminatory, options were open to contractors who could
give him a contract far below the current market rate
Systems argues that it did not seek to satisfy First
Union's low contract rate and Lehman s objective by re
sorting to a discriminatory scheme, but rather by its bid
ding a price that was calculated on a substantially lower
initial wage rate for employees who accepted those rates,
and who accepted employment on a part time basis
Thus it argues that its determination of initial wage rate
and part time employment conditions was economically
motivated Systems argues that the burden of proving
unlawful discrimination remains at all times with the
General Counsel and that this burden was not sustained
by the General Counsel who not only failed to prove
discriminatory motivation, but also failed to prove that
the predecessors employees would have accepted em
ployment under the conditions it set and that they would
have constituted a majority of its employees at either 300
Sixth Avenue or the Porter Building
Respondents citation of authority relative to the Gen
eral Counsel's burden of proof neglects the most crucial,
i e, Wright Line, 251 NLRB 1083, 1089 (1980), enfd 662
F 2d 899 (1st Cir 1981), cert denied 455 U S 989,
(1982) There the Board stated
Thus, for the reasons set forth above, we shall
henceforth employ the following causation test in
all cases alleging violation of Section 8(a)(3) or vio
lations of Section 8(a)(1) turning on employer mote
vation First, we shall require that the General
Counsel make a prima facie showing sufficient to
support the inference that protected conduct was a
motivating factor in the employers decision
Once this is established, the burden will shift to the
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employer to demonstrate that the same action
would have taken place even in the absence of the
protected conduct
The Wright Line criteria has been applied to issues
identical to those here , and the Board with Court ap
proval held that once the General Counsel has estab
lished a prima facie case of discrimination , the burden
shifts to Respondent Spencer Foods, 268 NLRB 1483
1485 fn 8 (1984), affd in relevant part, reversed in part
the Board s dismissal of 8(a)(5) allegations , and remanded
for reconsideration of the remedy , sub nom Food &
Commercial Workers Local 152 (Spencer Foods), 768 F 2d
1463 (D C Cir 1985), Shortway Suburban Lines, supra
Furthermore , with respect to any uncertainty that
might anse about whether predecessor employees would
have applied for and would have accepted employment,
and also about what terms and conditions of employment
would have been maintained in the absence of a discnmi
natory refusal to hire the predecessor 's employees, Board
precedent supports the General Counsel and, contrary to
Respondents arguments, holds that such uncertainties
will be resolved against the wrongdoer whose conduct
created those uncertainties State Distributing Co, supra
On finding puma facie proof of discriminatory refusal to
hire a predecessor 's employees , the Board stated that it
was the burden of the otherwise successor employer to
prove the allegation that it did not hire those employees
because they would have refused to work for the wages
it was offering Shortway Suburban Lines, supra In such
cases as Shortway Suburban Lines and Spencer, the Board
has inferred that at least a part of the motivating factor
was unlawful discrimination , based on a deviation from
past practice , the pretextual nature of proffered reasons
for nonhire, etc
B Allegations Concerning the 300 Sixth Avenue
Employees
With respect to the 300 Sixth Avenue building situa
tion , Respondent correctly asserts that the General
Counsel has not proven that systems deviated from its
universal past practice in the general manner and means
of staffing that building I conclude that the General
Counsel has also failed to prove by coherent probative
evidence that First Union required requested , directed
demanded or otherwise caused Systems to effectuate a
low cost contract specifically by refusing to rehire the
Pritchard employees as I have previously detailed
However the General Counsel has shown that First
Union vigorously solicited a low cost cleaning contract
which required a labor cost factor grossly inferior to the
downtown Pittsburgh Local 29 standard rate and that it
was aware of achieving this type of contract through a
variety of options or strategies, some but not all of
which were lawful The evidence discloses that Systems
responded to First Union s solicitation by assuring Sirow
of First Union that its bid was feasible because it had fac
tored into it the lower wage rate negotiated with Local
327 in a labor contract that would be in place at 300
Sixth Avenue as of the inception of its work there As
found above Systems complied with this solicitation by
contemporaneously prerecognizing Local 327 as bargain
ing agent of its employees at 300 Sixth Avenue, prior to
their actual employment there I find that Systems exe
cuted a written on site contract with Local 327 sometime
in January 1986 or early February that Systems Region
al Manager Hudson was aware that it was extant and
was applicable to employees even as they were hired,
and told them so
Whether Systems motivation about the identity of em
ployees hired at 300 Sixth Avenue was discriminatory, or
whether Systems intended merely to prerecognize Local
327 regardless of the identity of on site employees, must
be resolved by further analysis of its relationship with
Local 327 Cicero conceded that he understood when
hiring 300 Sixth Avenue employees that Systems was
obliged to recognize Local 29 , had a majority of on site
employees been predecessor employees Systems ' prehir
ing recognition of Local 327 and Systems objective of
effectuating an economically feasible contract with First
Union was in stark conflict with an employee comple
ment consisting of a majority of predecessor employees
Prerecognition of Local 327 therefore necessarily pre
cluded the hiring of a substantial number of predecessor
employees and had to form the integral part of the basis
of its bid
In addition to Systems motivation to effectuate Local
327 prerecognition , the General Counsel has established
these additional facts Systems was eager for access into
the downtown Pittsburgh market It wanted to make a
very good impression on First Union It held itself out as
an employer of a stable experienced work force of full
time and part time employees with a low turnover rate
It admittedly sought out experienced workers and, as it
did at the Porter Building resorted to the transfer of ac
tively employed persons before resorting to new hires It
was aware that there was an actively staffed crew of ex
penenced workers at 300 Sixth Avenue There is no evi
dence that it blamed the unkempt conditions at 300 Sixth
Avenue on those workers or refused to consider them
because of their lack of abilities There is evidence that
at least in some circumstances , predecessor employees
have been interviewed and hired Its hiring agent ac
knowledged the objective advantage of retaining prede
cessor employees particularly because of their familiarity
with the building which was a totally new type of ac
count Systems made no evaluation or consideration of
and did not seek out, the predecessor employees but
rather solicited new hires through a tedious interviewing
process of 100 applicants who responded to a blind ad
vertisement in an advertising circular These facts coin
bined with Systems prehiring recognition of Local 327
compel the conclusion that the General Counsel has
made a prima facie showing sufficient to support an in
ference that the predecessor employees membership in
and representation by Local 29 was a ' if not "the mo
tivating factor in Systems hiring decision
The Respondent therefore had the burden of proving
that the predecessors employees would not have been
hired regardless of their Local 29 membership and repre
sentation Although the General Counsel may not have
proven conclusively that Respondent deviated from uni
versal or general past practice when it hired new em
SYSTEMS MANAGEMENT 1097
ployees at 300 Sixth Avenue , the Respondent did not
adduce any meaningful , persuasive and credible evi
dence that it did act in accord with universal or even
predominant past practice The testimony elicited by the
General Counsel from Hudson , as noted above, was se
lective and inconclusive as Systems actual , general past
hiring practices Even with respect to Hudson, some
times he did and sometimes he did not interview prede
cessor employees , but no explanation was proffered by
him or any Systems witness about why no consideration
was given to soliciting the former Pritchard employees
Respondent correctly argues that an employer is not nec
essanly obliged to seek out the predecessor employees
In this context , however, Respondent in urgent need
sought out new employees by way of a blind advertise
ment , which necessarily gives rise to an inference that
Respondent sought to avoid the risk of possible prede
cessor employee applications , had they been then aware
of their imminent termination By the time that the
Pritchard employees were notified of the installment of a
new contractor who did not intend to automatically
retain them but who had already assembled a new crew,
it had clearly become a futility for them to have applied
for jobs that were filled Under the facts of this case, it
was incumbent on Respondent to come forth with some
cogent explanation as to why it did not consider or ac
tively seek out the predecessor downtown employees as
it had actively sought out totally new employees inter
viewed in the northern part of the city
No manager testified that consideration was not given
to employment of predecessor employees because of the
failure to submit written applications Systems merely
argues in its brief that no predecessor employee filed an
application Systems also argues in its brief that it had a
`sound business justification for following its own
practice ' of not advising Pritchard employees that it
had acquired the contract and that it was taking employ
ment applications Systems cites Hudson s and Noble s
testimony in support of this contention Neither Noble,
Hudson , nor any other manager testified that Systems
uniform or even general past practice is not to advise
and/or not to consider predecessor employees for em
ployment opportunity where such opportunity is not ob
vious to them Hudson merely testified that he always
placed blind advertisements He did not testify that he
did so exclusively Nor did he testify that he placed blind
advertisements that were timed to solicit applications
prior to the awareness of the predecessor employees that
were to be terminated He testified that he only actively
notified three accounts He did not testify why He did
not testify that these accounts were not notifed by other
means known to Systems Furthermore , Hudson s hiring
experience was limited to only 20 of 90 to 100 locations
and, moreover, in 3 accounts encompassing 7 locations
he actually notified and interviewed predecessor employ
ees Why he did or did not interview more is not ex
plained His testimony is too imprecise for Systems to
claim that it has proven that it had acted according to
past practice
Noble 's testimony as to actual staff was limited to the
reasons the building was temporarily overstaffed with ex
penenced workers from its other locations If anything,
his testimony suggests the urgency of finding sufficient,
experienced persons He was silent about the motivating
decision to hire new employees and intent about the
predecessor employees He did testify that Systems in
tended to utilize part time employees but he did not tes
tify that the predecessor employees were ignored be
cause of any assumption that they would not accept part
time employment at the wage level Systems intended
The only business justification testified to by Nobel is his
uncorroborated , undocumented , very loose, conclusion
ary, and generalized testimony that he could not think'
of a single location where full time employees are uti
lazed Despite this testimony , Systems shortly afterward
solicited the Porter Street account and represented itself
to Porter as an employer of a stable, experienced work
force of full time and part time employees of low turnov
er i e , the contrary of its 300 Sixth Avenue subsequent
experience This inconsistency , as well as inconsistency
and lack of crediblity in Respondent's testimonial evi
dence , necessitates a more precise, cogent, probative evi
dentiary submission to sustain Respondents burden of
proof which , I find , included the burden of proving that
its past practice was indeed that of hiring only part time
employees , and that it was not contrived for 300 Sixth
Avenue as an inherent element in the contemporaneous
scheme to avoid and deter hiring of predecessor employ
ees
I therefore must conclude that Respondent would
have offered employment to the Pritchard employees to
fill urgently needed positions for experienced cleaning
persons at 300 Sixth Avenue had it not been for its un
lawfully discriminatory motivation of effecutating a pre
hiring recognition of Local 327 at that site in January or
early February 1986 by refusing to hire predecessor em
ployees , in violation of Section 8(a)(1) and (3) of the Act
Any uncertainty about whether any of these predecessor
employees would have accepted employment offered
under lawful conditions must be resolved against Re
spondent Systems, State Distributing Co, supra I further
find that Respondent therefore had it not been for its
unlawful discrimination , would have been a successor
employer , having assumed the same work as Pritchard
and having hired those former employees who would
have formed a majority of its regularly employed new
crew exclusive of temporary employees at a time when
a reasonably representative number had been employed
after an initial startup period By refusing to recognize
and bargain with Local 29 as exclusive bargaining agent
for the cleaning and janitorial employees at 300 Sixth
Avenue Respondent violated Section 8(a)(1) and (5) of
the Act
Furthermore, the setting of new terms and conditions
of employment was itself integral to and premised on the
unlawful refusal to hire the predecessor employees Al
though a successor employer is ordinarily privileged to
effectuate initial terms and conditions of employment of
predecessor employees because Respondent Systems un
lawfully failed to hire these employees because of their
membership in and representation by Local 29, it was
not lawfully at liberty to do so, and by such action it fur
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ther violated Section 8(a)(1) and (5) of the Act by these
unilateral actions Shortway Suburban Lines, supra
With respect to its relationship with Local 327, I find
that Systems further violated Section 8(a)(1) and (2) of
the Act as alleged in the complaint by its recognition of
Local 327 and execution of a collective bargaining agree
ment with it at a time in January or early February 1986,
prior to its employment of any employees at 300 Sixth
Avenue Further, even had recognition not been ex
tended until after 16 February, it would have been un
lawful Respondent correctly cites Bruckner Nursing
Home, 262 NLRB 955 (1982), and Great Southern Con
struction, 266 NLRB 364 (1983), for the proposition that
it is not unlawful for an employer to voluntarily recog
nize a union that represents an uncoerced majority of its
employees The operative word, of course, is un
coerced " The employees of 300 Sixth Avenue were de
prived of the opportunity to freely make an uncoerced
decision about representation on or after 16 February,
even had they been given the opportunity in light of the
conduct of Hudson who told them when hired that they
would by virtue of their very employment conditions be
members of Local 327 and who then, when engaged in
the orientation of new employees, introduced Kachmank
who explained things to them by reinforcing Hudson s
statement, i e, they had to be Local 327 members to
retain employment Accordingly, no uncoerced majority
of employees designated Local 327 as bargaining agent
Rather, the new employees were in effect ordered to
become and remain Local 327 members pursuant to Sys
tems unlawful discriminatory scheme
Thus Systems violated Section 8(a)(1) and (2) of the
Act by granting recognition to Local 327, and by there
after maintaining a collective bargaining agreement with
it under which it has maintained a union security clause
that obligates continued membership in Local 327, and
new membership on and after the 31st day of employ
ment, and under which Systems has deducted dues and
initiation fees from the pay of its employees and remitted
the same to Local 327, which by its collaboration in the
conduct violated Section 8(b)(1)(A) and (2) of the Act
C The Allegation Against First Union
With respect to the alleged liability of First Union the
General Counsel contends that it should be found to be
equally culpable with Systems because it had directed,
required, or otherwise caused Systems, an employer with
which it has a relationship of "an intimate business char
acter, to violate the Act, citing Dews Construction Corp,
231 NLRB 182 fn 4 (1977) First Union is neither argued
nor alleged to be a joint employer, alter ego, nor single
integrated enterprise with Systems, and there is insuffi
cient evidence of such relationship despite some routine
directions to Systems employees by Becky It is not nec
essary to evaluate whether the business relationship falls
within that contemplated by Dews because I have found
that the General Counsel has been unable to prove that
First Union directed, demanded, requested, or otherwise
caused Systems to accomplish its objective of a lower
cost contract based on a lower than area standard wage
rate, by the specific unlawful means of a failure to hire
the predecessor employees Having made that finding, I
also find it unnecessary to evaluate First Union s argu
ment about the issue of timeliness of the amended unfair
labor practice charge against it Accordingly, I conclude
that the complaint allegation against First Union ought
to be dismissed
D Allegation Concerning the Porter Building
With respect to the Porter Building , the facts are sub
stantially changed A different building owner/operator
was involved, and there was no blind advertisement"
hiring of totally new employees and no prehire recogni
tion of Local 327 The facts regarding negotiations be
tween the owner, Lehman, and Systems are even more
sparse than those involving First Union and its solicits
tions for bids The evidence reveals that initially Lehman
Manager Black wanted a different contractor, either be
cause of unsatisfactory performance or possibly because
of some other performance term dispute with National
Ultimately, Black conceded that the final termination of
Nationals contract was for `economic reasons Black
had contracted a lower cost contract with National at
another downtown building under which Local 29 repre
sented part time employees were utilized He wanted a
reliable but lower cost contract at Porter Systems satis
feed his requirement
The General Counsel argues forcefully that Black is
not a credible witness Primarily, it is argued that his
protested indifference to Systems labor relations is unbe
lievable There is, however no direct evidence nor any
compelling basis to necessarily infer that Black cared
what specific means Systems used to obtain a cheap con
tract It is highly reasonable to suspect that he did know
and care, but the General Counsel has not proven that
fact Furthermore, even if Black were discredited on the
point, the General Counsel has still failed to prove that
Black or any other agent of Lehman had requested, di
rected required or otherwise caused or even solicited
Systems to submit a low contract feasible necessarily
only by the nonretention of predecessor employees As
stated previously, a predecessor may lawfully determine
the initial wages and conditions of employment offered
to predecessor employment applicants
The General Counsel has the burden of proving a
prima facie case that discriminatory motivation was a
motivating factor in the failure of Systems to hire Na
tional employees With respect to the first union account,
the General Counsel was able to prove a prima facie
case and Respondent had not sustained its burden of re
butting that case There, Systems lawfully could have set
the initial wages and conditions of employment of em
ployees on which to factor its bid and could have invited
and/or accepted predecessor workers employment on
those conditions and could have assumed the risk of sub
sequent possible, if not probable, bargaining for higher
wages if Local 29 had by chance ended up as a bargain
ing agent , either by the nature of the employee comple
ment or by new employee designation It did not do so
but, rather, chose a different strategy as found above,
i e , prehire recognition of Local 327 and the necessary
concomitant of nonhinng of predecessor employees who
would otherwise have been hired I do not believe that
SYSTEMS MANAGEMENT
having found that Systems chose the unlawful course of
conduct for the First Union account that I must neces
sanly infer unlawful motivation sufficient of itself to es
tablish a prima facie case with respect to the Porter
Building The burden is again on the General Counsel to
prove its case in regard to the Porter Building, albeit im
mediate past unlawful conduct may be evaluated The
General Counsel attempted to prove that Respondent
again planned to use Local 327 recognition as a means of
avoiding Local 29 bargaining obligations and that the
scheme again necessitated the nonhinng of predecessor
employees to accommodate the needs of its client,
Lehman This time however, Systems is argued to have
contrived a scheme of packing the Porter employment
roster with Local 327 members and supporters and with
a key plant' so that less blatant subsequent rather than
prehire recognition would be effectuated The evidence
of this plot rests squarely on the credibility of Systems'
former manager, Miller
Much testimony and other evidence was adduced
about Miller s potential bias, i e , the circumstances of his
employment, the quality of his work performance, and
the conditions leading up to his departure Contrary to
Respondents assertion the evidence in the record fails
to establish that he was involuntarily terminated He tes
tified that he resigned, and that is supported by other
evidence It is unnecessary to evaluate all the evidence
addressed to his work performance and alleged problems
arising therefrom It is clear from uncontradicted evi
dence, including his own testimony and demeanor and
uncontradicted testimony of Onestack, that Miller was
sharply dissatisfied with the rate of pay and nonpromo
tion of his half brother, and the alleged failure of Re
spondent to compensate himself a certain percentage of
costs charged to the customers His own demeanor on
the witness stand revealed him to be the opposite of a
disinterested or dispassionate witness He displayed pal
pable eagerness and satisfaction when testifying to mat
tern adverse to Systems interest I agree that Miller
indeed, was a disgruntled former employee Of itself,
such bias may not necessarily have debilitated Miller s
credibility but merely served as an explanation for his
willingness to cooperate with the General Counsel s
prosecution and subject himself to the rigors of testify
ing
However, much more important and determinative
than Miller's bias is the objective improbability of his tes
timony The reference to the computer printout of Local
327 members came not initially, but later in his testimony
when called on for details of the execution of the pro
Local 327 staff packing scheme Each time he was re
ferred to the printout his insistence on its existence
became more forceful and vigorous Without hesitation
he identified a printout of employee information shown
to him by counsel for the General Counsel as similar to
the printout given to him but without the numerical data
He was as certain of this aspect of his testimony as he
was of no other Yet, the unrefuted and unchallenged
documentary evidence of Systems disclosed that kind of
printout to be nonexistent That same evidence demon
strated that the very persons who were supposed to be
Local 327 members and/or supporters had given no evi
1099
dence to Systems that they were such and, moreover,
that they were unlikely to have previously become Local
327 members or supporters Further indicative of the im
probability of Miller's testimony is his admission that he
hired about five applicants, knowing them to be non
members of Local 327, and also that one of the three
persons transferred from 300 Sixth Avenue was not a
Local 327 member when Miller was supposedly ordered
to arrange that all" Porter employees were to be such
It should be recalled that he testified that new hires
would be assigned to the First Union account to replace
older transferees to the Porter Building
The General Counsel argues that Millers testimony
must be credited because it is consistent with the record
as a whole which, it is argued, supports his testimony
that Systems attempted to pack the Porter Building
with Local 327 members, although these individuals
[hired] may not have actually signed union cards or were
laid off prior to formally becoming members I
conclude that the improbability of Miller s testimony, re
suiting from the evidence of apparent lack of any actual
execution of such plan and evidence of nonexistence of
source material alleged in aid of such plan, compels me
to disregard his entire testimony as untrustworthy and
unreliable even where it was not contradicted by Mrs
Cicero, Cicero, or Palmer and even though it may have
been consistent with Respondents past conduct and not
at variance, if not consistent, with other circumstantial
evidence If it were merely a matter of the printout s
nonexistence, Miller's testimony might have been con
strued to have been exaggerated but yet essentially true
If it were merely the nonmembership of Ross Park spe
cial services employees, it might have been explained as
a recordkeeping blunder by Respondent However, all
these factors particularly evidence that only two appar
ent members were actually transferred despite the total
packing intent command disbelief of all his testimony
about the scheme
Without Miller s testimony, the General Counsel has
failed to make a puma facie showing of discriminatory
motivation The General Counsel has shown that Re
spondent was eager to obtain contracts in downtown
high rise buildings by offering them at rates far below
those of the Local 29 represented contractors who pre
dominated in downtown Pittsburgh But merely offering
a contract rate that necessarily involves a wage cost
factor below the Local 29 area standard, does not
compel the inference that predecessor employees must
not be employed, otherwise no successor contractor
would ever be free to set unilateral terms of employment
and would be constrained to accept the economic impact
of his predecessor's labor agreement
The General Counsel has shown that Respondent
failed to consider or invite the employment of the prede
cessor National employees, but had not proven this to be
in variation from Systems' own past practices and poli
cies Unlike the First Union account, Systems did not
need to solicit new employees for the Porter Building It
did not need to solicit any new non Systems employees
It had, prior to the Lehman account acquisition, a
number of laid off employees It matters not that these
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees might have been less experienced in the spe
cific type of cleaning work performed by the National
employees, because it is established by uncontroverted
testimony that they had been promised reemployment
pursuant to Systems past policy and practice Moreover,
the General Counsel did not adduce any evidence of
their lack of pertinent prior experience of Ross Park spe
cial services employees Additionally, Miller had at his
disposal several other non Local 327 potential Porter
Building employees Assuming that they were not float
ers as characterized by Noble but were applicants as
seemingly characterized by Miller they were, as he testi
feed, already pending applicants for employment ready to
be used by him when needed and, as Noble testified
without contradiction waiting for Miller to find a
`home for them There is no evidence that these per
sons, like the Ross Park employees, were any less expen
enced than the National employees There is no evidence
that their use was contrary to Systems past practice, or
in any way unusual With respect to the transfer of some
employees from a nearby account to augment the initial
overstaffing exercise, there is insufficient evidence that
such practice is contrary to past policy or practice, or
that it was not conducive to good business practice The
fact that overstaffing coincided with Cicero s impression
that the employment level on the first day of operation
was the determinant factor in successorship obligations
is insufficient to infer that the proffered business justifica
tion, reasonable on its face, was pretextuous There is no
evidence that Respondent did anything regarding the
Porter Building staffing that it would not otherwise have
done in the absence of the predecessor employees Local
29 representation The General Counsel has thus failed to
adduce sufficient credible probative evidence on which
I can conclude that the proffered reasons for utilizing
presently employed and previously pending applicants
for Systems employment was so contrary to its normal
business practice or otherwise unusual as to necessitate
an inference that it was pretextuous and that it must be
inferred that unlawful discrimination was a factor
The General Counsel has also failed to adduce other
evidence sufficient to raise an inference that unlawful
discrimination was a motivating factor I conclude that
demonstrating a discriminatory motivating factor with
respect to the First Union account is insufficient Al
though the General Counsel has shown that Respondent
strongly preferred to avoid bargaining with Local 29 it
has not been proven that this preference was a motivat
ing factor at the Porter Building specifically with re
spect to the staffing decision The fact that Systems may
have been delighted by the bargaining consequence of its
otherwise lawful conduct does not render that conse
quence a motivating factor, i e, a causal factor in
whole or part
Thus, the General Counsel has failed to establish a
prima facie case with respect to the initial staffing of the
Porter Building
The subsequent staffing of that building, i e the non
acceptance of actual employment applications of prede
cessor employees is also not shown to be discriminatorily
motivated The special consideration of their applications
at a higher than normal level is explainable by the sensi
tive nature of Systems position having been accused of
an unfair labor practice charge Extra caution by a
higher level manager is reasonable and does not neces
sarily bespeak unlawful discrimination as the General
Counsel argues The former National employees con
duct prevented Systems suspected motivation from
being put to a real test for they themselves, effectively
rejected subsequent employment on the terms and condi
tions of employment determined by Systems The Gener
al Counsel failed to prove by a prima facie case that the
terms and conditions of employment were discriminator
ly implemented at the Porter Building, and Respondent
Systems therefore rightly disregarded the predecessor
National employees applications
With respect to the recognition of Local 327, there is
no evidence that the posthiring recognition was granted
pursuant to any coercive conduct of Respondent Sys
tems Furthermore, there is insufficient evidence of any
coercive conduct of Local 327 with respect to the solici
tation of written representation designations Mobley did
not testify that she told any employees whom she solicit
ed that Local 327 membership was mandatory She did
make the ambiguous statement that Local 327 union
membership would effectuate a pay raise, but this sounds
like mere noncoercive campaign propaganda Kachmar
ik s testimony of employees statements and understand
ings of what Mobley stated does not constitute sufficient
probative evidence of what Mobley actually told them
No employee was called to testify about these solicits
tions Thus, contrary to the General Counsel's assertion,
there is no competent evidence that Mobley told Porter
employees that employment was contingent on Local
327 membership
The General Counsel argues that the coercive and un
lawful recognition of Local 327 a few blocks away at
300 Sixth Avenue 7 months earlier is sufficient to taint
the solicitation inasmuch as there had been no effective
repudiation of the coercive conduct which remained for
Local 327 as a deceptive cloak of authority (Citing,
inter alia Garment Workers v NLRB 366 U S 731, 736
(1961), and Kroger Co 275 NLRB 1478 (1985)) I do not
agree
The General Counsels argument would be more ap
propnately applied to a situation where it is argued as a
defense that a subsequent recognition in the same bar
gaining unit is valid despite a prior recent unlawful one
The Porter situation is distinguishable It involves a dif
ferent bargaining unit at a different location under a dif
ferent hiring manager at a time over 7 months remote,
under different circumstances whereunder Systems' man
agers sufficiently distanced themselves from Local 327 s
organizing efforts Only two of the employees trans
ferred to Porter Street had been subjected to Hudson s
and Kachmank s coercive remarks at the 300 Sixth
Avenue building I do not find it reasonable to presume
that under these changed circumstances the deceptive
cloak' of authority continued to inure to the benefit of
Local 327, particularly in view of the General Counsel's
failure to adduce probative evidence that Mobley did in
fact reiterate to the Porter Building employees Hudson s
and Kachmank s coercive statements to the First Union
SYSTEMS MANAGEMENT 1101
employees and Kachmank s disavowal to Mobley of his
earlier conduct and his assurance of employees freedom
of choice of bargaining agent Kachmank's admissions
that the Porter Building employees after becoming dis
satisfied with his representation and after Local 29 had
filed unfair labor practice charges and claimed an interest
in them, related to him such conduct by Mobley, are of
insufficient competency and weight to constitute that
type of evidence, particularly in the failure of Mobley to
so testify and the failure to adduce the testimony to that
effect of any of the employees involved
The General Counsel also argued that Respondent s
recognition of Local 327 was granted prematurely at the
First Union Building and `peremptorily at the Porter
Building The problem of premature recognition usually
occurs in cases of an imminently expanding unit where at
the time of recognition there is an inadequate representa
tion of the regular work force or operations are not
normal Many of these cases are cited by the General
Counsel regarding the First Union account, e g , Kroger
Co, supra at 1479, Herman Bros, 264 NLRB 439, 440
(1982) With respect to the Porter Building recognition
was granted after the submission to Systems by Local
327 of 10 employee executed authorization cards that the
General Counsel has not shown to have been coerced
The execution of those cards was not demonstrated to
have occurred at a time of abnormal employment levels
nor unrepresentative of Systems' employee complement,
inasmuch as Miller testified that he expected to regularly
employ about 10 persons although he was not absolutely
certain 2 The General Counsel has adduced evidence to
demonstrate that Systems recognized Local 327 quickly
and with enthusiasm but has not proven that recognition
was coerced, premature, or that Local 327 did not pos
sess majority status Moreover, Local 29 s claimed inter
est rested solely on its past representation of the termi
nated National employees
In view of the foregoing analysis and findings of fact,
I conclude that the allegations of unfair labor practices
concerning the conduct of Systems and Local 327 with
respect to the Porter Building are not proven and ought
to be dismissed
CONCLUSIONS OF LAW
1 Respondent Systems and First Union are separate
employers engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act
2 Service Employees International Union Local 29,
AFL-CIO and International Brotherhood of Painters
and Allied Trades of the United States and Canada
Local 327, AFL-CIO are respectively labor organza
tions within the meaning of Section 2 (5) of the Act
2 In addition to the 10 cardsigners employed on 11 September the rec
ognmon date was Baxley Hall and Ed Miller of whom it was Hall s
and Miller s last day of employment Dingle commenced on 12 Septem
ber Henderson T Hall and English were not hired until 15 18 and 19
September respectively of whom T Hall and English worked for only
several weeks Mobley and Trowery ceased work at the Porter Building
in mid October Mahone ceased on 20 October and five other original
cardsigners ceased work at the Porter Building on various dates in No
vember and December 1986 and one in February 1987 These cards were
subsequently supplemented by new cardsigners
3 All the following employees of Respondent Systems
formerly employed there by Pritchard Services, Inc
constitute a unit appropriate for collective bargaining
within the meaning of Section 9(b) of the Act
All custodial employees and freight elevator opera
tors employed by Systems Management Inc, at the
300 Sixth Avenue Building located in Pittsburgh,
Pennsylvania, excluding all office clerical employ
ees, guards, professional employees and supervisors
as defined in the Act
4 At all times material, Service Employees Interna
tional Union, Local 29, AFL-CIO has been the exclusive
representative of all the employees in the aforesaid unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and other
terms and conditions of employment within the meaning
of Section 9(a) of the Act
5 By its refusal on 16 February 1986 and thereafter to
hire the employees of Pritchard Services, Inc following
its succession to it in the business of providing custodial
services for Respondent First Union at the 300 Sixth
Avenue building because of the union affiliation and rep
resentation of these employees, and to avoid an obliga
tion to bargain with Service Employees International
Union, Local 29, AFL-CIO, Respondent Systems Man
agement, Inc violated Section 8(a)(3) and (1) of the Act
6 Respondent Systems Management, Inc is the suc
cessor employer to Pritchard Services, Inc and by fail
ing to recognize and bargain with Local 29 since on or
about 16 February 1986 as the exclusive collective bar
gaining representative of the employees in the above
unit, including by changing the rates of pay wages,
hours, benefits and other terms and conditions of em
ployment without prior notice to and opportunity given
to Local 29 to negotiate and bargain, it has violated Sec
tion 8(a)(5) and (1) of the Act
7 By recognizing and executing a collective bargain
ing agreement with International Brotherhood of Paint
ers and Allied Trades of the United States and Canada
Local 327 AFL-CIO when Service Employees Interna
tional Union Local 29 AFL-CIO was the exclusive rep
resentative of employees in the bargaining unit covered
by the agreement and when Local 327 did not represent
an uncoerced majority of those employees, Respondent
Systems Management Inc violated Section 8(a)(2) and
(1) of the Act
8 By its executing and maintaining the above contract
with Local 327, which contains a union security clause
and by the deduction of dues and initiation fees and the
remitting of same to Local 327 since 16 February 1986,
Respondent Systems has violated Section 8(a)(3) (2), and
(1) of the Act
9 By obtaining recognition of the bargaining unit em
ployees, entering into and maintaining a collective bar
gaining agreement for those employees with Respondent
Systems and by receipt of their dues and initiation fees
remitted pursuant to that agreement as described in the
foregoing paragraphs Respondent International Brother
hood of Painters and Allied Trades of the United States
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and Canada, Local 327, AFL-CIO has violated Section
8(b)(1)(A) of the Act
10 The aforesaid violations of the Act constitute
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act
11 Respondent First Union Management Inc has not
violated the Act
12 Respondents Systems Management, Inc and Local
327 have not violated the Act with respect to their al
leged conduct at the Porter Building or in any other
manner
THE REMEDY
Having found that the Respondent, Systems Manage
ment, Inc discriminatorily refused employment for the
former employees of Pritchard Services Inc, I recom
mend that it be ordered that their employment status be
restored to what it would have been but for the discrimi
nation against them, and that the Respondent offer them
immediate and full reinstatement to their former jobs or
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights or privileges previously enjoyed, discharging, if
necessary, employees hired from other sources to make
room for them, and make them whole for any loss of
earnings that they may have suffered due to the discrimi
nation practiced against them, as prescribed in F W
Woolworth Co, 90 NLRB 289 (1950), with interest to be
computed in the manner prescribed in New Horizons for
the Retarded a
Backpay is to be based on the rate structure previously
prevailing under Pritchard Services, Inc Loves Barbeque
Restaurant No 62 supra, 245 NLRB at 82 fn 15, enf
denied in relevant part 640 F 2d 1094 (9th Cir 1981)
State Distributing Co 282 NLRB 1048 (1987)
Further, I recommend that at the 300 Sixth Avenue
building, Respondent Systems Management, Inc be or
dered (1) to withdraw and withhold recognition from
International Brotherhood of Painters and Allied Trades
of the United States and Canada, Local 327 AFL-CIO
and to cease giving effect to the collective bargaining
agreement which these parties have executed (2) and be
cause the collective bargaining agreement contains a
union security clause to jointly and severally with this
Union make reimbursement of the dues paid to it with
interest as prescribed above to all employees (3) to bar
gain with the Service Employees International Union,
Local 29, AFL-CIO concerning any terms and condi
tions of employment on which they would have been re
quired to bargain had the Union s lawful status been ac
knowledged on 16 February 1986, the date it took over
the servicing of the 300 Sixth Avenue building, (4) to
cancel, on request by Local 29 changes in wages, rates
of pay, hours, benefits or other terms and conditions of
employment unilaterally effectuated and to make the
employees whole by remitting all wages and benefits that
would have been paid absent their unlawful conduct as
found here from 16 February 1986 until Respondent Sys
tems negotiates in good faith with the Union to agree
ment or to impasse 4
I also recommend that Respondent International
Brotherhoos of Painters and Allied Trades of the United
States and Canada Local 327, AFL-CIO be ordered to
(1) cease and desist from accepting recognition from Sys
tems and executing and giving effect to collective bar
gaining agreements at the 300 Sixth Avenue building, (2)
cease and desist from acting as the exclusive collective
bargaining representative at the 300 Sixth Avenue build
mg unless and until Local 327 is certified by the Nation
al Labor Relations Board as the exclusive bargaining rep
resentative of any such employees in an appropriate bar
gaining unit , (3) jointly and severally with Systems Man
agement, Inc reimburse all unit employees at the 300
Sixth Avenue building, with interest, for all dues and ini
tiation fees remitted to Local 327 since 16 February
1986
It is further recommended that Respondents be or
dered to post appropriate notices
Also, applying the standard for broad cease and desist
orders established in Hickmott Foods 242 NLRB 1357
(1979), 1 find that the Respondents misconduct was suf
ficiently egregious to demonstrate a general disregard for
the employees fundamental statutory rights A broad
cease and desist order is recommended See also
Shortway Suburban Lines, 286 NLRB 342 fn 38 (1987)
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed5
ORDER
A The Respondent Systems Management, Inc, Pitts
burgh Pennsylvania its officers agents successors and
assigns shall
1 Cease and desist from
(a) Refusing to hire employees because of their union
affiliation and to avoid an obligation to bargain with
Service Employees International Union Local 29 AFL-
CIO
(b) Failing to recognize and bargain with Service Em
ployees International Union Local 29, AFL-CIO as the
exclusive collective bargaining representative of its em
ployees in the following unit, including by making
changes in the wages rates of pay, hours, and benefits of
the employees in this unit without notice to and opportu
nity given to Local 29 to negotiate and bargain
All custodial employees and freight elevator opera
tors employed by Systems Management, Inc, at the
300 Sixth Avenue Building located in Pittsburgh,
i In accordance with the decision in New Horizons for the Retarded 283
NLRB 1173 ( 1987) interest on and after 1 January 1987 shall be comput
ed at the short term Federal rate for the underpayment of taxes as set
out in the 1986 amendment to 26 U S C § 6621 Interest on amounts ac
crued prior to 1 January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp 231 NLRB 651
* The remission of wages is to be applied consistently with the make
whole remedy set forth above with respect to the discnminatees
5 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
Poses
SYSTEMS MANAGEMENT
Pennsylvania, excluding all office clerical employ
ees, guards, professional employees and supervisors
as defined in the Act
(c) Recognizing and executing a collective bargaining
agreement with International Brotherhood of Painters
and Allied Trades of the United States and Canada,
Local 327, AFL-CIO as bargaining representative for
the above unit unless it is certified as the representative
by the National Labor Relations Board
(d) Giving effect to the collective bargaining agree
ment at the 300 Sixth Avenue building signed with Local
327, dated 3 January 1986, or to any extension, supple
ment, or modification of, or successor to that contract
(e) In any other manner interfenng with, restraining
or coercing employees in the exercise of the rights guar
anteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Offer to the employees formerly employed by
Pritchard Services, Inc, at the 300 Sixth Avenue build
ing, Pittsburgh, Pennsylvania facility, full and immediate
reinstatement to their former positions or, if those pose
tions no longer exist, to substantially equivalent positions,
without prejudice to seniority or other rights which they
have formerly enjoyed, discharging, if necessary, other
employees who have been hired in their places
(b) Make whole the employees formerly employed by
Pritchard Services, Inc for any loss of earnings they
may have suffered due to the discrimination practiced
against them in the manner described in the Remedy sec
tion of this Decision
(c) On request, bargain with Service Employees Inter
national Union Local 29, AFL-CIO as the exclusive
representative of the employees in the appropriate unit
concerning terms and conditions of employment and if
an understanding is reached, embody the understanding
in a signed agreement
(d) On request of Local 29, cancel any changes from
the wages rates of pay hours of employment and bene
fits or other terms and conditions of employment that ex
isted immediately before their takeover of the servicing
of 300 Sixth Avenue building and make the employees
whole by remitting all wages and benefits that would
have been paid absent such changes from 16 February
1986 until it negotiates in good faith with the Union to
agreement or to impasse in the manner described in the
remedy section
(e) Withdraw and withhold recognition from Interna
tional Brotherhood of Painters and Allied Trades of the
United States and Canada, Local 327, AFL-CIO as the
collective bargaining representative of the employees at
the 300 Sixth Avenue building, Pittsburgh, Pennsylvania,
unless it becomes certified as the representative by the
National Labor Relations Board, and jointly and several
ly with the Union, remit all dues withheld for it to those
employees who became members on or after 16 Febru
ary 1986, with interest, as prescribed above in the
Remedy section
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay
roll records, social security payment records, timecards
1103
personnel records and reports, and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(g) Post at the 300 Sixth Avenue Building Pittsburgh,
Pennsylvania facility, copies of the attached notice
marked Appendix 6 Copies of the notice, on forms
provided by the Regional Director for Region 6, after
being signed by the Respondent's authorized representa
tive, 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 maters
al
(h) On being furnished the same by the Regional Di
rector, post the notice marked Appendix B' in the same
manner as Appendix A
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
B The Respondent International Brotherhood of
Painters and Allied Trades of the United States and
Canada, Local 327, AFL-CIO, its officers, agents, and
representatives, shall
1 Cease and desist from
(a) Accepting recognition from Systems Management,
Inc and executing and giving effect to the collective
bargaining agreement dated 3 January 1986, for the cus
todial employees and elevator operators at 300 Sixth
Avenue building, Pittsburgh, Pennsylvania, or to any ex
tension, modification, supplement or successor to it
(b) Acting as the exclusive bargaining representative of
custodial employees and elevator operators at 300 Sixth
Avenue building, Pittsburgh, Pennsylvania unless and
until certified as such by the National Labor Relations
Board as the exclusive collective bargaining representa
tive of any such employees in an appropriate unit
(c) In any other manner restraining or coercing em
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Jointly and severally with Systems Management
Inc reimburse all unit employees at the 300 Sixth
Avenue Building Pittsburgh Pennsylvania with interest
as prescribed above in the remedy section, for all dues
and initiation fees remitted to it since 16 February 1986
(b) Post in its office and meeting halls copies of the at
tached notice marked Appendix B ° Copies of Ap
pendix B" to be furnished by the Regional Director for
Region 6, after being signed by Respondent Local 327 s
official representative, shall be posted by it immediately
upon receipt thereof and be maintained by it for 60 con
secutive days thereafter in conspicuous places, including
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 Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
' See fn 6 above
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
all places where notices to members are customarily
posted Reasonable steps shall be taken by Respondent
Local 327 and its agents to insure that such notices are
not altered, defaced or covered by any material
(c) Forward to the Regional Director signed copies of
`Appendix B' for posting by Systems Management, Inc
at its facilities in the 300 Sixth Avenue building, Pitts
burgh, Pennsylvania, for 60 days in places where notices
to employees are customarily posted
(d) Notify the Regional Director in wasting within 20
days from the date of this Order what steps the Re
spondent has taken to comply
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 of
fered us to post and abide by this notice
WE WILL NOT refuse to hire employees previously em
ployed by Pritchard Services, Inc because of their union
affiliation or to avoid an obligation to bargain with Serv
ice Employees International Union, Local 29, AFL-CIO
WE WILL NOT fail to recognize and bargain with this
Union as the exclusive collective bargaining representa
tive of the employees in the following unit, including by
making changes in the wages, rates of pay, hours, and
benefits or other terms and conditions of employment of
the employees in this unit without giving notice to it and
opportunity for negotiation and bargaining
All custodial employees and freight elevator opera
tors employed by Systems Management Inc at the
300 Sixth Avenue Building located in Pittsburgh
Pennsylvania excluding all office clerical employ
ees guards professional employees and supervisors
as defined in the Act
tions of employment and, if an understanding is reached,
embody it in a signed contract if asked to do so
WE WILL, on the request of the above Union, cancel
any changes from the wages, rates of pay, hours of em
ployment, and benefits or other terms and conditions of
employment that existed immediately before our takeov
er of servicing the 300 Sixth Avenue building and make
the employees whole by remitting all wages and benefits
that would have been paid absence such changes from 16
February 1986 until we negotiate in good faith with the
Union to agreement or impasse
WE WILL withdraw and withhold recognition from
International Brotherhood of Painters and ALlied Trades
of the United States and Canada Local 327, AFL-CIO
as the collective bargaining representative of our em
ployees at the 300 Sixth Avenue building, Pittsburgh,
Pennsylvania, unless it becomes certified as the repre
sentative by the National Labor Relations Board, and
remit, jointly and severally with the Local 327 all dues
withheld for it for those employees who became mem
bers on or after 16 February 1986, with interest
WE WILL offer to employees formerly employed by
Pritchard Services, Inc at the 300 Sixth Avenue build
mg, Pittsburgh Pennsylvania, immediate and full rein
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju
dice to their seniority or any other rights or privileges
previously enjoyed, discharging, if necessary, other em
ployees who have been hired in their place and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any net
interim earnings, plus interest
SYSTEMS MANAGEMENT, INC
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT recognize and execute a collective bar
gaining agreement with International Brotherhood of
Painters and Allied Trades of the United States and
Canada Local 327 AFL-CIO as the collective bargain
ing representative of the employees in the above unit
unless it is certified as the representative by the National
Labor Relations Board
WE WILL NOT give effect to the collective bargaining
agreement we signed with International Brotherhood of
Painters and Allied Trades of the United States and
Canada Local 327 AFL-CIO for the unit or to any ex
tension supplement modification or successor to that
contract
WE WILL NOT in any other manner interfere with re
strain, or coerce you in the exercise of the rights guaran
teed you by Section 7 of the Act
WE WILL on the request of Service Employees Inter
national Union, Local 29 AFL-CIO bargain with this
Union as the exclusive representative of all the employ
ees in the above unit concerning their terms and condi
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 accept recognition from Systems Man
agement, Inc nor execute and give effect to the collec
tive bargaining agreement dated 3 January 1986 for cus
todial employees and elevator operators employed by it
at the 300 Sixth Avenue building, Pittsburgh, Pennsylva
nia or to any extension modification, supplement or
successor to it
WE WILL NOT act as collective bargaining representa
tives of the custodial employees and elevator operators
employed by Systems Management, Inc at the 300 Sixth
Avenue Building in Pittsburgh, Pennsylvania, unless and
until we have been certified by the Board as such repre
sentative
WE WILL NOT in any other manner restrain or coerce
you in the exercise of the rights guaranteed you by Sec
tion 7 of the Act
SYSTEMS MANAGEMENT 1105
WE WILL, jointly and severally with Systems Manage moneys unlawfully extracted from them under our con
ment, Inc reimburse all the employees , former and tract with Systems Management
present, employed by it at the 300 Sixth Avenue build
ing, Pittsburgh , Pennsylvania, for dues and any other INTERNATIONAL BROTHERHOOD OF PAINT
ERS AND ALLIED TRADES OF THE UNITED
STATES AND CANADA, LOCAL 327, AFL-
CIO