Weco Cleaning Specialists

National Labor Relations Board - Board Decisions

Aug 19, 1992

308 N.L.R.B. 310 (N.L.R.B. 1992)

310
308 NLRB No. 55
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel moved to strike portions of the Respond-
ent’s brief in support of its exceptions. We deny the General Coun-
sel’s motion to strike.
2 We do rely on the testimony of the former A to Z employees
concerning statements made by Cruz to them because we adopt the
judge’s finding, for the reasons stated by him, that Cruz was the Re-
spondent’s agent at the time such statements were made and thus
these statements by Cruz were admissions against interest, as further
found by the judge.
3 All dates are in 1989 unless otherwise indicated.
4 We note in this connection that the Board has held that a prima
facie case of discriminatory motivation may be supported by consid-
eration of the lack of any legitimate basis for a respondent’s actions.
Wright Line, 251 NLRB 1083, 1088 fn. 12 (1980), enfd. on other
grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 959
(1982), approved NLRB v. Transportation Management Corp., 462
U.S. 393 (1983). See also Shattuck Denn Mining Corp. v. NLRB,
362 F.2d 466 (9th Cir. 1966); Southwest Distributing Co., 301
NLRB 954 (1991), and Active Transportation, 296 NLRB 431
(1989). We view this as consistent with the Second Circuit’s recent
refinement of its opinion in Holo-Krome Co. v. NLRB, 947 F.2d 588
(1991). On the Board’s petition for rehearing in Holo-Krome, the
court held, inter alia, that ‘‘[w]hen the Board reviews an ALJ’s deci-
sion, and when a court of appeals reviews a Board’s decision, the
reviewing bodies should be able to examine the entire record to de-
termine if improper motivation has been shown . . . .’’ 139 LRRM
2353 (1992).
5 Moreover, the Edwardses testified to shifting reasons for the Re-
spondent’s failure to contact or hire the former A to Z employees.
Although the Respondent contends that it was willing to hire six em-
Weco Cleaning Specialists, Inc. and Local 32B-32J,
Service Employees International Union, AFL–
CIO and Amalgamated Local Union 355, Party
in Interest. Case 29–CA–14226
August 19, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 29, 1991, Administrative Law Judge Ste-
ven B. Fish issued the attached decision. The Respond-
ent filed exceptions and a supporting brief. The Gen-
eral Counsel filed an answering brief.1
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions as modified and to adopt the recommended
Order.
The judge found that the General Counsel had made
out a prima facie case for finding that the Respondent
refused to hire its predecessor’s employees in order to
avoid an obligation to recognize and bargain with the
Union. In so finding, the judge relied in part on the
affidavit of Francisco ‘‘Frank’’ Cruz, the project man-
ager for the Respondent’s predecessor who was the
Respondent’s agent at the time it did its initial hiring
and took over maintenance operations at the facility
and who was deceased at the time of the hearing. We
find that the General Counsel made out a prima facie
case of a violation i.e., a showing sufficient to support
the inference that union animus was a motivating fac-
tor in its refusal to hire the predessor’s employees,
Wright Line, 251 NLRB 1083, 1089 (1990), even with-
out consideration of the Cruz affidavit.2
Thus, in agreement with the judge, we rely on evi-
dence of animus seen in the Respondent’s course of
conduct toward the Union. Specifically, after the meet-
ing between the Respondent’s president and vice presi-
dent, Norma and Alphonse Edwards, and union rep-
resentatives in December 1988, more fully described
by the judge, the Respondent never got back to Union
official McCulloch despite telling McCulloch it would
do so. Similarly, the Respondent ignored McCulloch’s
letter following up the December meeting in which he
asked to be kept informed regarding the status of the
Respondent’s contract with the Small Business Admin-
istration. On June 27, 1989,3 McCulloch contacted the
Respondent when he heard of the Respondent’s im-
pending takeover of the building maintenance oper-
ations. At that time, McCulloch once again asked the
Respondent to hire its predecessor’s unit employees.
Norma Edwards replied that she had not yet made up
her mind and mentioned something about applications.
Edwards never got back to McCulloch before starting
operations on July 3 at the facility, but required that
the A to Z employees fill out applications, which she
concededly never picked up from Cruz. Several days
later, according to their credited testimony, three A to
Z employees were told by Cruz that they had been se-
lected for employment by the Respondent but that the
Respondent was not taking a majority of its work force
from the former A to Z employees because it did not
want the Union. In sum, we agree with the judge’s
conclusion based on this evidence that the Respond-
ent’s entire course of conduct reflected its desire to
avoid dealing with the Union as the representative of
the employees in question.
We also rely on evidence of the Respondent’s hiring
practices to find that the General Counsel has estab-
lished a prima facie case of discriminatory motivation.4
As the judge noted, the Respondent admitted it was
impressed with the A to Z employees’ work when it
first visited the facility and told McCulloch at the De-
cember meeting that it had no problems with the em-
ployees and would hire them, although it did not wish
to hire the entire A to Z employee complement. How-
ever, the Respondent ultimately determined it would
hire only six of the A to Z employees. In this regard,
the Respondent presented no evidence as to how the
Edwardses came to the decision to hire only six of the
A to Z employees or of any critical information that
justified its failure to hire the employees.5
311WECO CLEANING SPECIALISTS
ployees on July 3, it is clear from the judge’s finding, which we
adopt here, that their employment essentially was conditioned on the
employees’ abandonment of their union representation. This is an
unlawful condition which employees are not required to accept. City
Electric, 288 NLRB 443, 453–455 (1988), and A-1 Schmidlin
Plumbing Co., 284 NLRB 1506 (1987), enfd. 865 F.2d 1268 (6th
Cir. 1989).
6 The Respondent did, because of his specialized experience, hire
a former A to Z employee in October who had not filled out a sec-
ond job application.
7 As set forth above, we have found a prima facie case without
regard to the Cruz affidavit. Additionally, we agree with the judge’s
ruling admitting the affidavit because it is corroborated by the evi-
dence discussed above. We further find that, although the affidavit
supports a prima facie showing of a violation, it is entitled to less
weight than that accorded it by the judge. 1 All dates hereinafter are in 1989, unless otherwise indicated.
Further, despite the Respondent’s assertion that it
began operations on July 3 with 10 of its own employ-
ees, the judge found that 2 of the employees brought
by the Respondent to the facility were hired off the
street with no office cleaning experience, 1 was a sec-
retary, 4 were relatives of the Edwardses transferred
from other jobs who then had to be replaced at their
original locations, and 2 were students who were only
temporary employees. (There was no exception to this
finding.) Thus, contrary to its assertion, the Respond-
ent did not have an initial work force ready to staff its
new operation at the facility. Moreover, as the judge
found, the Respondent continued to hire employees
through December, including inexperienced workers, in
fact conceding that it hired everyone who applied for
jobs at the facility except project manager applicants
and former A to Z employees.
The Respondent’s treatment of the former A to Z
employees in October further evidenced unlawful in-
tent. It sent letters to the A to Z employees who had
applied for jobs with the Respondent in June, but then
required those former employees to fill out second ap-
plications and come to the Edwardses’ home for inter-
views. There is no evidence that any other job appli-
cants were required to go through such elaborate pro-
cedures. More significantly, although it purported to
offer jobs to the former A to Z employees in October,
it was clear that no such jobs were available to them.
Although the Respondent sought to justify this by con-
tending that it would offer jobs to the employees when
its request to clean more space was approved, the Re-
spondent did not dispute the judge’s finding that it
continued to hire outside employees between October
and November, including some inexperienced workers,
without resort to any of the former A to Z employees
for whom it had twice received job applications.6
In sum, we find that there is ample evidence on the
record apart from the Cruz affidavit supporting the
judge’s finding that there was a prima facie case of un-
lawful conduct.7 We further agree with the judge’s
conclusion that the Respondent has not rebutted the
General Counsel’s prima facie case by establishing that
it would not have hired the former A to Z employees
even without their union affiliation. Thus, whether or
not we consider the Cruz affidavit, we agree with the
judge that the Respondent’s refusal to hire the employ-
ees at issue was part of its plan to avoid an obligation
to recognize and bargain with the Union and thereby
violated Section 8(a)(3) and (1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Weco Cleaning Specialists,
Inc., Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
David S. Cohen, Esq., for the General Counsel.
Norma Edwards, President, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed by Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO (the Union or Local 32B-32J), the
Regional Director for Region 29 issued a complaint and no-
tice of hearing on November 8, 1989,1 alleging that Weco
Cleaning Specialists, Inc. (Respondent) violated Section
8(a)(1), (3), and (5) of the Act.
The trial with respect to the issues raised by the complaint
was heard before me in Brooklyn, New York, on March 29
and 30, 1990. The complaint was amended at the hearing.
Subsequently, briefs were filed by Respondent and General
Counsel. Respondent’s brief was accompanied by 17 docu-
ments marked as ‘‘Appendices,’’ 1 through 17. General
Counsel thereafter made a motion to strike the ‘‘appendices’’
from the record as well as substantial portions of Respond-
ent’s brief, on the grounds that these portions of the record,
as well as the appendices do not appear in the record and
were not presented at trial.
Respondent then filed a response to General Counsel’s
motion, and attached thereto, three additional appendices.
This resulted in another request by General Counsel to strike
these three appendices, plus additional portions of Respond-
ent’s response, again on the grounds that neither the appen-
dices nor the portions of the response, were reflective of any
record testimony.
Respondent filed an additional response to this request of
General Counsel, which resulted in one more letter from
each party, dealing with the issue of Respondent’s brief and
the appendices.
A substantial reason for the above-described deluge of
documents is of course Respondent’s decision not to retain
an attorney for the trial in these proceedings, and to be rep-
resented by Norma Edwards, its president. I would note that
at the outset of the trial, I cautioned her about the difficulty
of representing herself in such a trial, and that neither coun-
sel for General Counsel nor myself would act as her attor-
312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 I would note, however, that in view of the possible misunder-
standing by Respondent, that I have reviewed these appendices and
conclude that even had I considered them as part of the record, my
ultimate decision would not have been changed.
ney. I emphasized that such is the representative of Respond-
ent would be required to present whatever witnesses and evi-
dence that Respondent wishes to present, and that after Gen-
eral Counsel rests she will have an opportunity to present
whatever witnesses Respondent may have. I also informed
her that evidence must be presented through testimony on the
stand by witnesses and on the record. I would also note that
Respondent, and its counsel at the time was served with a
copy of the standard procedures in formal hearings, along
with the complaint. This document states, inter alia, that ex-
hibits offered in evidence, subject to certain exhibits not rel-
evant here, must be submitted before the close of the hear-
ing.
General Counsel is quite correct that none of the appen-
dices that Respondent attached to its brief and response, ex-
cept for Appendix 11, were ever authenticated, or introduced
into the record by Respondent during the course of the hear-
ing. Nor does an examination of these documents reveal, nor
does Respondent contend that these appendices were pre-
viously unavailable or newly discovered.
Respondent argues, however, that it believed that when the
time was set for submission of briefs, this included the op-
portunities to submit additional documentation in support of
its assertions. Respondent also contends that General Counsel
had been provided with most of the appendices by Respond-
ent, as a result of Respondent complying with General Coun-
sel’s subpoena. Finally, Respondent contends that others of
the document were not presented, because the issues in-
volved only come up at the last day of the hearing.
I do not find that any of Respondent’s arguments, either
singly or collectively are sufficient to justify Respondent’s
failure to comply with the well established Board require-
ment that absent newly discovered, or previously unavailable
evidence (or agreement of the parties) all evidence including
exhibits must be introduced into the record prior to the close
of the hearing.
Respondent’s contention that since General Counsel had
some of these exhibits in his possession, permits the late in-
troduction of the evidence, and/or that General Counsel had
an obligation to submit these documents, are without merit.
There is no obligation on General Counsel to introduce any
evidence favorable to Respondent, and indeed I specifically
informed Respondent at the trial that neither I nor General
Counsel would act as Respondent’s attorney, and it was Re-
spondent’s obligation to present any evidence in support of
its position through and by testimony on the witness stand.
While I believe that Respondent is sincere in its assertion
that it thought it could present these documents with its brief,
I find that my statements in the record, as well as the state-
ments of procedure which was served on Respondent, were
sufficient to alert Respondent that these ‘‘appendices’’
should have been submitted during the trial.
The further argument of Respondent that matters relating
to some of documents arose only at the last day of trial, is
also an insufficient excuse. Respondent made no request for
an adjournment to present this additional evidence, that it
was not aware it needed to present until the last day of trial.
Nor did Respondent request that the record be kept open for
the receipt of this evidence. Indeed Respondent failed to
even mention that it wished to present these additional docu-
ments prior to the close of the hearing.
These problems are largely due to Respondent’s decision
not to hire an attorney to represent it, and have resulted in
Respondent having to ‘‘suffer whatever consequences’’ that
may arise from such decision, as I warned Respondent about
prior at the commencement of the trial.
Accordingly, based on the foregoing, I shall grant General
Counsel’s motion to strike from the record these appendices,
and I shall disregard them. EDP Computer Systems, 284
NLRB 1286, 1287 (1984), and cases cited therein.2
With respect to General Counsel’s motion to strike certain
portions of Respondent’s brief and its response to General
Counsel’s motion, I would argue that many of the items re-
ferred to in General Counsel’s motion contain no record sup-
port. However, other portions referred to, in my view could
be construed as merely interpretations or conclusions drawn
from record testimony. Rather than specifically discuss each
item referred to, and decide which of the categories such
items fall within, it is more appropriate to conserve judicial
economy, to simply deny General Counsel’s motion in con-
nection with striking portions of the brief and responses.
Having done so however, I shall of course, consistent with
Board rules and precedent, make my findings here heard
solely on record testimony or exhibits. Thus, I shall disregard
and not consider any portions of Respondent’s brief and re-
sponse, which recites facts that are not included in the
record. EDP supra at 1288.
Based on the entire record, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Respondent is a New York corporation with its principal
office and place of business located at 144–57 175 St.,
Springfield Gardens, Queens, New York, and has been en-
gaged in providing cleaning and maintenance services to res-
idential, commercial, and governmental customers located
throughout the State of New York, including the General
Service Administration, a United States Government agency,
at a facility located at 830 Third Avenue, Brooklyn, New
York (the Third Avenue facility).
During the past year, Respondent in the course and con-
duct of its operations, performed services valued in excess of
$50,000 for United States Government agencies located in
the State of New York, including the General Services Ad-
ministration, and the United States Army Reserve, each of
which enterprises in turn directly engaged in interstate com-
merce and meets a Board standard for the assertion of juris-
diction exclusive of indirect inflow and indirect outflow.
The operations of Respondent have a substantial impact on
the material defense of the United States.
It is admitted, and I find, that Respondent is now and has
been at all times material, an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I find, that the Union and Amal-
gamated Local Union 355 (Local 355) are now and have
313WECO CLEANING SPECIALISTS
3 The status of Olivieri is uncertain. While he was not physically
working for A to Z as of June 30, the record indicates that he was
either out on disability or had retired by that time.
been at all times material, labor organizations within the
meaning of Section 2(5) of the Act.
II. FACTS
Since 1974, Local 32B-32J has been the collective-bar-
gaining representative for employees performing building
maintenance services at a Federal building located at 830
Third Avenue, Brooklyn, New York, who were employed by
various contractors who received bids to perform this work.
Each of these contractors when they commenced performing
the maintenance services at this facility, hired the employees
of the prior contractor, agreed to recognize the Union, and
executed collective-bargaining agreements with the Union. A
to Z Maintenance Corp. (A to Z), had received a subcontract
from the Small Business Administration (SBA), the prime
contractor, which in turn had contracted with the General
Services Administration (GSA) on behalf of the United
States Government for the performance of these services at
that location.
A to Z had performed this work since 1982 or 1983, and
like the prior contractors, agreed to recognize Local 32B-32J
and sign contracts with them. The most recent such contract
was effective from January 1, 1987, to December 31, 1989.
A to Z was responsible for cleaning, including shipping,
dusting, stripping, waxing floors, and washing blinds in the
several areas at the Federal building, including space occu-
pied by the Coast Guard, Federal Drug Administration, Cus-
toms, and other Federal agencies, plus cleaning responsibil-
ities outside the building.
As of June 1989, A to Z employed Francisco ‘‘Frank’’
Cruz as its project manager in charge of the general super-
vision of its work at the Third Avenue facility. A to Z em-
ployed 21 employees at that time who were covered by the
collective-bargaining agreement with the Union. These em-
ployees include Tyrone Bugg (day supervisor), Michael
Kypri (night supervisor), Myra Maldanado (secretary to
Cruz), John Boyne (elevator operator), and Miguel Minier,
Luis Gomez, Martha Benitez, Earline Bridgeman, Henry
Carner, Elizabeth Gorden, Arnie Hughes, Willie Colbert,
Ruben Gonzalez, Michelle Chillo, Guiomar Alzate, Michael
Montalbano, Joseph Ditonno, Eduardo Torres, Sal Zampella,
Esther ‘‘Violetta’’ Laurano, and Frank Olivieri3 (General
Workers).
In November 1988, SBA offered Respondent a set-aside
contract to perform maintenance services at the Third Ave-
nue facility. Apparently, the starting date for Respondent to
take over was not finalized at that time, nor was any definite
decision made. The specifications given to Respondent at
that time however, did provide that it would not be required
to clean the same amount of space that A to Z was required
to clean.
On several occasions between November 1988 and June
1989, Norma and Alphonse Edwards, Respondent’s president
and vice president, visited the facility, and spoke with the
owners of A to Z, as well as with Cruz. The Edwardses
toured the facility with Cruz and admitted that they were
very impressed with how well the building had been cleaned,
and were very impressed with Cruz’ knowledge of the main-
tenance industry. During these visits, the Edwardses meas-
ured and familiarized themselves with the spaces that Re-
spondent would have to clean. At about the same time,
Norma Edwards offered to retain Cruz as project manager,
when Respondent commenced cleaning the facility. Cruz
agreed, but final details of his employment relationship had
not been finalized. Edwards told Cruz that as a result of the
reduction in space that Respondent would be expected serv-
ice; she would not need to hire the same number of employ-
ees that A to Z employed.
Meanwhile, between November 1988 and June 1989, ne-
gotiations continued between Respondent, GSA, and SBA
concerning the contract for the cleaning of the space at the
Third Avenue facility.
During one of their visits to the facility, in November or
December, Cruz introduced the Edwardses to Union Business
Agent Tony Poccio, who suggested that they meet with
Poccio’s superiors at the Union. They agreed to the meeting,
which was held at the Union’s offices in mid-December
1988. The Edwardses met with Kevin McCulloch, assistant
to the president and Donald Maimm, vice president of the
Union. McCulloch told the Edwardses that the Union rep-
resented the employees employed at the facility, and re-
quested that Respondent hire the current work force should
it be awarded the contract. He added that the Union would
be willing to negotiate a contract from scratch if Respondent
wished, or Respondent could sign the standard industry con-
tract, to which A to Z was a party. McCulloch gave Norma
Edwards a blank copy of the contract to review, and an ‘‘ap-
plication’’ which the Union requests that signatories to con-
tracts with it fill out.
Norma Edwards responded that she had no problem with
hiring the current employees, and added that she would
maintain the current level of benefits. However, he informed
the union representatives that GSA specifications had
changed, and that she did not believe that she would be able
to hire all the employees previously employed by A to Z.
McCulloch replied that if the Union’s standard agreement
requires written permission from the Union before a reduc-
tion of staff is permitted, he advised Edwards not to make
a bid for the job based on reduced staffing levels, because
it would be difficult to obtain the Union’s permission to do
so. No specific number of employees was mentioned by ei-
ther Respondent or by the Union.
McCulloch asked Edwards if Respondent had a contract
with another union. Edwards replied that Respondent did not
have such a contract, but that it contributed to the medical
plan of Local 355 for its employees, because it is cheaper
to provide insurance through such plan. McCulloch also
asked Edwards if Respondent had any other work in New
York and Edwards responded that she employed service em-
ployees at West Point.
The meeting ended with Edwards advising McCulloch that
she would review the proposed contract and get back to him.
On January 18, 1989, McCulloch wrote a letter to Re-
spondent in which he confirmed that at the December meet-
ing, Respondent had disclosed that its employees were cov-
ered by the Local 355 medical fund. McCulloch attached a
copy of a daily labor reports summary of a court order ob-
tained by the Department of Labor, requiring the removal of
the fiduciaries of the Local 355 welfare fund, and other pen-
alties against the fund. The letter also requested that Re-
314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Cruz had in December 1988, informed Benitez that Respondent
would be taking over the contract from A to Z.
5 Applications were distributed to approximately 19 employees.
Employees Carner and Alzate were on vacation at the time.
6 The employees who submitted applications were Benitez, Boyne,
Bridgeman, Bugg, Chillo, Colbert, Ditonno, Gomez, Gorden,
Hughes, Kypri, Maldonado, Minier, Montalbano, and Zampella.
spondent advise the Union with regard to the status of the
Federal building at 830 Third Avenue. The Union received
no reply from Respondent to this letter.
On or about June 7, GSA informed Respondent that it
should be prepared to commence work at the facility on July
3, 1989, under an interim contract basis. On June 10, as a
result of continuing negotiations, a 1-month interim contract
was entered into between GSA, SBA, and Respondent to per-
form cleaning services at the facility. At that point, Respond-
ent began to consider how to hire employees to service the
facility, and at that point was admittedly in a rush to staff
its operations.
During this period of time, Norma Edwards confirmed her
prior agreement to hire Cruz as project manager, although
again no final details had been worked out. Edwards told
Cruz to select the six A to Z employees who he felt were
the best workers, to be retained when Respondent took over
the contract on July 3. Edwards informed Cruz that she was
keeping only six employees, because she was going to get
rid of Local 32B, that she had done this before, and she
knew she could get away with it. She added that Cruz should
keep all his ‘‘papers’’ on the other employees so that she use
them in court to prove that the other employees were no
good.
Shortly thereafter, Cruz gave Edwards the names of the six
employees whom he selected for hire by Respondent (Kypri,
Maldanado, Bugg, Minier, Laurano, and Torres). Edwards in-
formed Cruz that the wages and benefits of these employees
would remain the same, but no Local 32B. She added that
she had her own union, but she refused to tell Cruz the
name. Finally, Edwards told Cruz that the employees would
start with the same new seniority date.
Cruz then informed employee Benitez in the presence of
Maldonado, that he (Cruz) had just finished a conversation
with Edwards, in which she had informed Cruz that she was
only going to hire six A to Z employees,4 and that she did
not want the Union. Cruz also told employees Minier and
Bugg that A to Z had lost the contract and that Respondent
would be the new contractor. Cruz added that the new owner
did not plan to keep the Union, but that she would give the
employees the same benefits and wages but without the
Union. Cruz also told the employees that Respondent had
‘‘done it before,’’ explaining that at other facilities where
Respondent took over, it had refused to accept the union that
represented the previous contractor.
On June 27, McCulloch learned from one of his agents
that Respondent was about to start work at the facility. He
immediately called Respondent and asked Norma Edwards if
it was true that she was starting work shortly. Edwards re-
plied that she would be commencing work in early July.
McCulloch told her that he was taken aback because she had
promised to get back to him when the contract became final-
ized. McCulloch asked Edwards to hire ‘‘his people,’’ i.e.,
the employees that were employed by A to Z. Edwards re-
plied that she had not made up her mind yet, and mentioned
something about applications.
With respect to applications, Edwards initially told Cruz
that she would force the A to Z employees to come to her
office, which is located at her residence (in Queens) to fill
out job applications, in order to make it as difficult as pos-
sible for the current employees to apply. After a brief discus-
sion, Edwards told Cruz that she did not want the employees
to know where she lived, so she decided to hand out applica-
tions herself to the A to Z employees at the facility.
Thus, on June 27 (the same day of her conversation with
McCulloch), Norma Edwards went to the A to Z office at
the Third Avenue facility. She asked Cruz to call each of the
A to Z employees that were present on that day to come into
the office one at a time. When the employees came into the
office, in the presence of Cruz, Edwards, and Maldonado,
they were given applications to fill out for possible employ-
ment by Respondent. They were told to complete the appli-
cations and return them to Cruz by June 29.5 Over the next
2 days, 15 A to Z employees submitted applications to Cruz,
dated either June 27 or 28.6
While Edwards was supposed to send someone over to the
facility on June 29 to pick up the completed applications
from Cruz, no one came. After a series of misunderstandings
between Cruz and Edwards, it was finally agreed to that he
would give Edwards the applications on Monday, July 3, the
first day of work for Respondent at the facility.
On June 29, in the afternoon, Cruz called Bugg into the
office. Cruz informed Bugg that he had chosen, as per Ed-
wards’ instructions, six employees to be hired by Respond-
ent. He told Bugg that Bugg had been selected, along with
Maldanado, Minier, Laurano, Kypri, and Torres. Cruz added
that Edwards intended to set up a ‘‘voting system.’’ She, ac-
cording to Cruz, would bring in seven or eight of ‘‘her own
people’’ who would vote for Local 355, and the former A
to Z employees, who would vote for Local 32B-32J would
be outvoted. Cruz added that he still had the completed ap-
plications, and that the Edwardses were supposed to pick
them up, but they hadn’t done so as yet. Cruz further in-
formed Bugg that he would be contacting Edwards so Re-
spondent could pick up the application from him on the
weekend.
On Friday, June 30, A to Z employees Torres and Minier
informed Cruz that they would not accept Respondent’s offer
of hire. Minier informed Cruz that he didn’t like the idea that
more senior employees than he had not been selected, and
Torres told Cruz that he would not work for Respondent be-
cause he had worked for Respondent previously and was not
treated well.
The above description of events prior to July 3, is derived
from a compilation of the credited portions of the testimony
of Norman and Alphonse Edwards, Bugg, Minier, Benitez,
McCulloch, and the affidavit of Francisco Cruz.
With respect to the affidavit of Cruz, he was deceased at
the time of the hearing, so General Counsel pursuant to Sec-
tion 804(b)(5) of the Federal Rules of Evidence sought the
introduction of a pretrial affidavit given by Cruz to Ira
Sturm, Esquire, counsel for Local 32B-32J on July 14. In
this connection, Sturm testified that he was previously em-
ployed by the Regional Office of the National Labor Rela-
tions Board from 1976 to 1980, as a trial attorney. As part
of his responsibilities in that position, Sturm was called on
315WECO CLEANING SPECIALISTS
7 I note that the Board’s view in this area has not been accepted
by at least two courts of appeal. See NLRB v. United Sanitation
Service, 737 F.2d 936, 940, 941 (11th Cir. 1984); Central Freight
Lines v. NLRB, 653 F.2d 1023, 1026 (5th Cir. 1981). I, of course,
am bound to apply Board precedent. Doral Building Services, 266
NLRB 1215, 1217 (1983).
8 I note that it is not clear whether exceptions were taken in Doral,
supra to the administrative law judge’s action in receiving these doc-
uments into evidence.
9 In making my findings, I have considered the testimony of Bugg
that Cruz ‘‘had a habit of saying one thing and doing another,’’ and
‘‘he had a habit of playing both sides of the fence.’’ Although this
testimony may reflect to some extent on the truthfulness of Cruz’
assertions in the affidavit, I conclude that Bugg’s subjective and I
would note somewhat ambiguous opinion about Cruz, is insufficient
to discredit the statements in the affidavit, particularly in view of the
corroboration of the significant portions of the affidavit by other evi-
dence in the record.
to take affidavits from numerous witnesses, as many as hun-
dreds of such affidavits over the course of his employment
at the Board. Sturm credibly testified that essentially he uti-
lized the same procedures and practices that he used while
employed at the Board in taking the affidavit from Cruz on
July 14.
Respondent objected to the introduction into evidence of
the affidavit, on the grounds that it could not cross-examine
the witness. I received the document, subject to further con-
sideration, particularly as to the question of the ‘‘equivalent
circumstantial guarantees of trustworthiness’’ as to this affi-
davit.
The Board has consistently viewed that this requirement of
Section 804(b)(5) has been met by an affidavit taken by a
Board agent. Colonna’s Shipyard, 293 NLRB 136 (1989);
Auto Workers Local 259 (Atherton Cadillac), 259 NLRB
276, 280 (1985); Canterbury Gardens, 238 NLRB 864, 868
(1978); Prestige Bedding, 212 NLRB 690, 701 (1974).
The Board generally receives such documents in evi-
dence,7 while cautioning that such evidence ‘‘must be evalu-
ated with maximum caution, only be relied upon if and when
consistent with extraneous, objective, and unquestionable
facts.’’ Industrial Waste Service, 268 NLRB 1180 (1984);
United Sanitation Service, 262 NLRB 1369, 1374 (1982).
Custom Coated Products, 245 NLRB 33, 35 (1979);
Colonna’s Shipyard, supra.
I questioned at the hearing whether the ‘‘equivalent cir-
cumstantial guarantees of trustworthiness’’ that the Board at-
taches to an affidavit taken by a Board agent, also is applica-
ble to an affidavit taken by a charging party, as here, who
is clearly not a neutral person taking the affidavit as is a
Board agent in the process of investigating a charge. In
Doral Building, supra, the Board did affirm a decision of an
administrative law judge who applied Section 804(b)(5) to an
affidavit taken by an interested party, albeit with no discus-
sion or apparent consideration of the issue which I have
raised. Nonetheless, although Doral, supra, in my view is of
limited authority in support of the proposition that an affida-
vit taken by an interested party is admissible under Section
804(b)(5),8 I shall reaffirm my decision at the trial to receive
the affidavit of Cruz into evidence. I would note in this re-
gard the testimony of Sturm, whom I found to be a believ-
able and candid witness, who related his extensive previous
experience as a Board agent. Thus, Sturm’s credited testi-
mony that he utilized substantially the same procedures and
practices in taking the affidavit of Cruz, as he did when tak-
ing affidavits as a Board agent, convinces me that the re-
quirement of ‘‘equivalent guarantees of trustworthiness’’ has
been met with respect to this affidavit, and I shall receive
it in evidence. Doral Building, supra.
This conclusion does not end the inquiry, for an even
more serious question is presented, as to what weight should
be given to the statements appearing in Cruz’ affidavit, more
specifically whether they are ‘‘consistent and extraneous, ob-
jective and unquestionable facts.’’ United Sanitation, supra;
Custom Coated, supra. I am persuaded that sufficient cor-
roboration and consistency with other facts of Cruz’ asser-
tions exists in the record, to permit me to place some reli-
ance on his affidavit. Thus, I note that the statements that
Cruz attributes to Edwards are completely consistent with
and corroborated by the testimony of employees Minier,
Benitez, and Bugg, that Cruz informed them about Respond-
ent’s intentions at about the same time that Norma Edwards
made similar remarks to Cruz. Moreover, and significantly,
Norma Edwards, although admitting that she authorized Cruz
to hire a certain number of former A to Z employees to work
for Respondent, did not deny making the above-described
statements to Cruz, regarding her antiunion motivation, that
appeared in his affidavit. Finally, Respondent never offered
any convincing explanation as to why it decided to only hire
six former A to Z employees, which is further corroboration
of Cruz’ affidavit. Accordingly, based on the foregoing, it is
appropriate to rely on, and I have, portions of Cruz’ affidavit
to make my findings, set forth above. Prestige Bedding,
supra; Colonna’s Shipyard, supra.
Moreover, an even more compelling reason for relying on
Cruz’ affidavit is demonstrated by the record. During the pe-
riod of time encompassed by the conversations between Ed-
wards and Cruz, incorporated in Cruz’ affidavit, Edwards
had tentatively agreed with Cruz (subject to the working out
of final details) that Respondent would be employing Cruz
as its project manager as of July 3 when it commenced
cleaning the facility. More significantly, Respondent admit-
tedly delegated to Cruz the responsibility and authority to se-
lect the former A to Z employees whom Respondent would
hire, and Cruz, in fact, made such a selection with which Re-
spondent concurred. In these circumstances, Cruz was clearly
an agent for Respondent certainly with respect to statements
made with regard to hiring, although he was still employed
by A to Z at the time in question. American Press, 280
NLRB 937, 941, 951 (1986); Lemay Caring Center, 280
NLRB 60, 61–70 (1986). Therefore, even apart from Section
804(b)(5) of the Federal Rules of Evidence, the statements
of Cruz made in his affidavit constitute an admission against
interest of Respondent, and are admissible and can be relied
on that basis alone.
Accordingly, based on the foregoing, I have relied on the
affidavit of Cruz (noting again that the statements in question
were not denied by Edwards), in making my findings as set
forth above, and to some extent below.9
On Monday, July 3, Respondent began work at the Federal
building, performing some type of cleaning functions (al-
though cleaning less space), with employees in classifications
(except for a secretary), and working the same hours, as A
to Z had performed at that location.
316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Norma Edwards concedes this to be the fact with respect to
White, but contends that Duncan had worked for Respondent before
as a cleaner, on a part-time basis. However, I do not credit Edwards’
testimony in this regard, since Duncan’s job application dated June
29, 1989, listed no previous experience as a cleaner, nor any prior
service with Respondent.
11 The employees were Bugg, Gonzalez, Benitez, Boyne,
Montalbano, Ditonno, Colbert, Maldanado, Torres, Chillo, Zampella,
Bridgeman, Hughes, Gorden, Hughes, Alzate, Carner, and Gomez.
12 While N. Edwards testified that she had agreed to hire seven
former A to Z employees, it appears that based on the record, the
correct number was actually six. I note that Edwards could not recall
the name of the seventh employee allegedly hired by Respondent
and the unrefuted testimony of Bugg, corroborated by Cruz’ affida-
vit, establishes that only six were on the list.
On July 3, Norma and Alphonse Edwards arrived at the
facility, along with 10 ‘‘non A to Z employees’’ to begin
work. Of these 10 employees, 2 of them, Jesse White and
Terrence Duncan, were new hires by Respondent, ‘‘off the
street,’’ with no previous experience as a cleaner.10 Another
employee that Respondent selected was Alarice Thomas, who
Respondent had employed as a secretary who had occasion-
ally filled in as a substitute cleaner at Respondent’s West
Point job. Delores Bailey was transferred by Respondent
from a housecleaning position. Four of the other employees
utilized by Respondent were relatives of the Edwardses, who
Respondent transferred over from other jobs of Respondent.
Edwards admitted that Respondent had to replace Andre and
Arnold Edwards with new employees at the other locations
where these employees had been working prior to the trans-
fer. Anthony Edwards, who is the son of Norma Edwards,
was not employed by Respondent immediately prior to July
3, although he had done so in the past. He was a student at
the time, and worked at the facility only until the end of the
summer, when he returned to school.
On July 3, approximately 18 former A to Z employees ap-
peared at the Federal building.11 These employees arrived at
various times throughout the morning.
Bugg was one of the first to arrive, and was told by a
GSA security guard that A to Z employees would not be per-
mitted to enter, except for six employees on a list, which had
been left by Cruz. Bugg looked at the list and, although his
name was on it, he decided to go outside and wait for Cruz.
Shortly thereafter, Cruz arrived with a bag filled with the ap-
plications submitted by the former A to Z employees and
told Bugg that nobody from Respondent had come to his
house to pick up the applications.
Cruz went inside the facility, told Edwards that he was not
going to work for Respondent under these conditions, par-
ticularly the reduced staffing, and he gave her the keys. Cruz
came out and told the employees present that he was not
going to work for Respondent, and it was best for the em-
ployees to stick with the Union, because ‘‘things aren’t
right.’’
Most of the employees present decided to enter the build-
ing and speak to Edwards. They were able to speak to
Norma and Alphonse Edwards. The employees asked what
was going on and why wasn’t Respondent hiring the A to
Z employees. Alphonse replied that he did not know who
these people were, since they were not on his payroll. One
employee asked Norma Edwards if she was going to take the
Union. Edwards replied that the employees should see
McCulloch. Some of the employees asked who is
McCulloch. Edwards observed that the employees were lost,
and didn’t even know who their union representatives are.
Norma Edwards added that she had ‘‘done this before,’’ was
doing nothing illegal, and that they should go see their union
representative.
N. Edwards then turned to Bugg and said to him that he
had been hired by Respondent, and she couldn’t understand
why he wasn’t staying. Bugg responded that ‘‘it would be
like turning my back on the union.’’ Earline Bridgeman then
identified herself as the appointed shop steward, and in-
formed Edwards that Respondent must hire all the former A
to Z employees present, or none of the employees would
stay. Edwards replied that the Union cannot run her business,
that if those employees whom she agreed to hire wanted to
stay,12 she had openings for them. The employees then left
the premises, except for Bugg who went into the locker room
to clean out his locker.
Norma Edwards approached Bugg and asked him again if
he was staying. Bugg replied, ‘‘no, he was not.’’ Edwards
stated that if Bugg did not stay, not to come back.
The above description of the events of July 3 is based on
a compilation of the credible testimony of Bugg, Edwards,
and to a limited extent, the affidavit of Cruz. While Bugg
did not recall hearing Bridgeman tell Edwards that she was
shop steward and that Respondent must hire all the former
A to Z employees present, I have credited the testimony of
Edwards to this effect. I note in that connection that Bridge-
man was not called as a witness by General Counsel to deny
making this statement. Moreover, this remark is consistent
with the action taken by the four employees that Respondent
had agreed to hire who were present that day. They refused
Respondent’s offer of employment, and Bugg admitted that
he did not want to turn his back on the Union. Thus, I find
it likely that Bridgeman made the remark attributed to her by
Edwards, as set forth above.
After July 3, Edwards admitted that Respondent made pay-
ments into the pension and welfare funds of Local 355 on
behalf of some of its employees employed at the Federal
building, notwithstanding that it never recognized Local 355
as the collective-bargaining representative of its employees
employed at that facility.
Several days after July 3, Bugg and employee Gonzalez
went to the facility and asked Alphonse Edwards if Respond-
ent was hiring. Edwards replied that he would check with his
wife and get back to the employees. Respondent did not get
back to either Bugg or Gonzalez.
However, subsequent to July 3, he continued to hire exten-
sively in order to staff its operations at the facility. In fact,
Norma Edwards admitted that Respondent thereafter hired
everyone for whom it received an employment application
except for the former A to Z employees, and six applicants
for project manager. Between July 4 and 7, Respondent hired
seven new employees, five of whom had no prior experience
as cleaners or maintenance employees. Respondent continued
to hire additional employees in late July and in August, in-
cluding some with no previous cleaning experience, until
reaching a level of 17 full-time and 4 part-time employees
in August 1989.
On July 21, the Union filed the instant unfair labor prac-
tice charges. In late July, Sturm and Union Business Agent
Poccio met outside the Federal building with former A to Z
317WECO CLEANING SPECIALISTS
13 The former A to Z employees who filed employment applica-
tions, dated October 18 were Alzate, Benitez, Boyne, Bridgeman,
Bugg, Carner, Chillo, Colbert, Gomez, Gonzalez, Hughes, McGinley,
Minier, Torres, and Zampella.
employees to establish a picket line. Sturm explained to the
employees that they would be picketing to protest Respond-
ent’s unfair labor practices of refusing to hire the employees
and refusing to recognize the Union. The employees picketed
with signs reading ‘‘WECO Cleaning, Inc. refuses to hire
Local 32B-32J members.’’ The word ‘‘UNFAIR’’ in capital
letters also appears on the sign. The picketing continued until
on or about October 6.
On October 6, Respondent mailed letters to all the former
A to Z employees who had previously filed applications with
Respondent for employment. The letters read that Respond-
ent has a position for the employee at the Third Avenue fa-
cility, identical to their previous position. The letter asks that
Respondent be contacted by phone within a week of receipt
of the letter to make arrangements for their employment.
Further, the letter adds that, ‘‘If we do not hear from you
within that period of time, we shall assume that you are not
interested in this job.’’
Norma Edwards admits that Respondent had no jobs avail-
able at the time for any of these employees but asserts that
she sent the letters because she was expecting approval from
GSA for Respondent to perform extra work which would ne-
cessitate the hiring of five additional employees. According
to Edwards, as of the date of the trial, 3/30/90, such approval
had not as yet been received from GSA.
A number of employees responded by phone to these let-
ters, and a few others, who did not receive the letters be-
cause they had not filed applications originally, also called,
since they heard about the letters from friends. Edwards told
all the employees who called that they must report to Re-
spondent’s office at the Edwards home in Queens for an
interview.
On October 18, the employees complied with Respond-
ent’s request and were interviewed by Edwards. She required
each of them to fill out another job application and other pa-
pers. Edwards told the employees that she had no work for
them now, but was waiting for GSA to approve her request
for more space, at which time they would be contacted and
called back to work.13
On October 10, Respondent hired an employee named
Ralph Stevenson, and on October 16, Herbert Reilly, both as
cleaners employed at the Federal building.
On October 18, Respondent hired Michael Montalbano,
who was a former A to Z employee, and was hired by Re-
spondent primarily because he was able to run a sweeper ma-
chine.
Respondent did not hire the other former A to Z employ-
ees who filled out the additional applications on October 18.
However, on that same day, October 18, Respondent hired
a Juan Gonzalez, a nonformer A to Z employee who had no
prior experience as a cleaner.
The next day, October 19, Respondent hired another new
employee and nonformer A to Z employee named Wilfredo
Morales, as a cleaner, who also had no prior work experience
in that position. On October 30, Respondent hired Tair
Atillias as a cleaner at the facility. Additionally, on Decem-
ber 7, Respondent hired Anthony Felice, who had no prior
cleaning experience, and on December 9 hired Lillian Miller,
whose only prior experience was as a housecleaner.
Respondent’s evidence consisted solely of the testimony of
Alphonse and Norman Edwards with no documentary or
other records produced. Alphonse Edwards testified that Re-
spondent needed 17 employees at the Federal building and
expected 7 to be chosen by Cruz. He further testified that
Respondent brought 10 other employees with him, his son
Anthony, and a friend Lorenzo who were college students
and were hired ‘‘just to help them out’’ for college. Al-
phonse explained that Respondent needed more employees
after July 3 when the former A to Z employees turned down
Respondent’s offer of employment. Thus, they continued to
hire people in July and August, some without experience,
and some only on a part-time basis. Alphonse asserted ini-
tially that Respondent did not try to contact the former A to
Z employees during this period of time because the employ-
ees had refused to work unless everyone was hired.
However, notwithstanding this belief, Alphonse further as-
serts that he did make several attempts to contact certain
former A to Z employees to offer them jobs, but they refused
the offer. He could not recall any names of these employees
who allegedly refused Respondent’s offer on the phone. Ac-
cording to Edwards, sometime in July, he offered a position
to Sal Zampella, who had been recommended by an official
of the Coast Guard, where Zampella was working at the
time. Zampella allegedly refused the offer of Edwards to
come to work for Respondent. Alphonse also testified that in
October, Maldanado in response to the October letter, came
in and asked if she was being offered her old job as a sec-
retary. Edwards replied no, but he could hire her as a clean-
er. Maldanado allegedly refused that offer. In this connec-
tion, Norma Edwards testified that employee Henry Carner
was called by her husband and a message was left on
Carner’s machine to call about a job. Allegedly Carner did
not respond. She also testified that she called Kypri in Octo-
ber to offer him a position, but no one answered his phone.
Neither Alphonse nor Norma Edwards testified as to how
Respondent came to the decision to hire only 6 or 7 employ-
ees from A to Z and 10 from other sources, including some
from ‘‘off the street.’’ They also did not testify that they re-
ceived any information from Cruz or anyone from A to Z
or otherwise, critical of any of the former A to Z employees.
Maria Benitez admitted that while employed at A to Z, she
had been warned by Cruz about her attendance problems,
and at one point had been terminated by Respondent for at-
tendance reasons, but was taken back after the Union filed
an arbitration request on her behalf. Additionally, the record
revealed a large number of latenesses and/or absences for
Benitez during the period of March through May. However,
Respondent adduced no testimony or other evidence that it
did not hire Benitez because of any attendance problems that
she may have had while employed at A to Z, or for any
other reasons. Indeed, Respondent adduced no testimony de-
tailing any reason why it refused to hire any specific em-
ployee formerly employed by A to Z. In fact as noted, Re-
spondent conceded that it left that decision to Cruz, after giv-
ing him the number of A to Z employees that it wished to
hire. As noted above, Edwards conceded that they did not
have, nor did they review, the employment applications that
the A to Z employees had filed, prior to July 3, the day Re-
spondent began operations at the Federal building.
318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 This statement by Cruz to Bugg, as well as the other statements
of Cruz to employees, are admissions against Respondent, since as
noted above, Cruz was Respondent’s agent, at least for the purpose
of statements made about hiring. Thus, Respondent having placed
Cruz in a position to be involved in hiring of its employees, to dis-
cuss it with A to Z employees, and to give out and receive employ-
ment applications from them, is responsible for Cruz’ statements to
employees about such hiring. American Press, supra. While Cruz is
deceased, and testimony of witnesses concerning his conduct must
be weighed with great scrutiny, Colonna’s Shipyard, supra, I have
done so, and find such testimony to be sufficiently corroborated by
the record. See also City Wide Ambulette, Inc., 272 NLRB 882, 884
(1984).
15 McCulloch’s request is a sufficient application for hire on behalf
of all A to Z employees. Harvard Industries, 294 NLRB 1102
(1989).
III. ANALYSIS
A. The Alleged Refusal to Hire
It is clear that a new owner of a business or a successor
contractor, like Respondent, is not obligated to hire all or
even any of the employees employed by the predecessor con-
tractor. However, it may not refuse to hire the predecessor’s
employees because they were represented by a union or to
avoid having to recognize and/or bargain with the Union.
NLRB v. Burns Security Services, 406 U.S. 272 (1972); How-
ard Johnson’s v. Detroit Local Joint Executive Board, 417
U.S. 249 (1974). Some of the factors relied on by the Board
in establishing such a violation include evidence of union
animus; lack of a convincing rationale for the refusal to hire
the predecessor’s employees, inconsistent hiring practices or
overt acts or conduct evidencing a discriminatory motive;
and evidence supporting a reasonable inference that the new
owner or contractor conducted its staffing in a manner pre-
cluding the predecessor’s employees from being hired as a
majority of the new owner’s overall work force to avoid the
Board’s successorship doctrine. U.S. Marine Corp., 293
NLRB 669 (1989), citing Houston Distribution Service, 227
NLRB 960 (1977); Lemay Caring Centers, 280 NLRB 60
(1986), enfd. mem. 815 F.2d 71 (9th Cir. 1987). As in U.S.
Marine, supra, I conclude that all these factors are present
here.
Thus, Respondent was first notified about the Union’s
presence in December 1988, even before it was officially ap-
pointed as the successor contractor for the Federal building
cleaning services. At that time, it agreed to meet with union
officials and did so. At that meeting, Respondent’s officials
indicated satisfaction with the predecessor’s employees and
promised to maintain wages and benefits. However, when
Respondent indicated that the current staffing level might
have to be reduced, the Union indicated that written permis-
sion from the Union would be required for such a reduction,
and advised Respondent not to bid for the job on the basis
of reduced staffing.
It is obvious that as a result of the Union’s position at that
meeting, Respondent was no longer interested in dealing with
the Union as the representative of the employees at the facil-
ity. It is also obvious, that from that time on Respondent was
determined not to recognize the Union, and I concluded
made its hiring decisions based on a plan to avoid hiring a
majority of former A to Z employees who were represented
by the Union.
The unlawful motivation is compelling established by
statements made to Cruz by Norma Edwards, which Cruz in
return reported to several employees. These statements to the
effect that Respondent intended to hire only six employees
from A to Z in order to get rid of Local 32B-32J, and that
Respondent had done this before provides significant evi-
dence of discriminatory intent. Cruz elaborated further in his
statement to Bugg that Respondent would bring in seven or
eight of her own employees, and that ‘‘her’’ employees
would vote for Local 355 and outvote the Local 32B-32J
supporters from A to Z.14
Respondent’s conduct in staffing its operations at the facil-
ity, is further demonstrative of its discriminatory intent.
Thus, while it was notified on June 7 that it was to take over
on July 3, Respondent did not notify the Union as it had
promised to do. When the Union found out independently,
McCulloch called Edwards on June 27, and requested that
Respondent hire the A to Z employees.15 Edwards, obviously
somewhat flustered by McCulloch’s request, suddenly con-
cluded that she would require applications from the A to Z
employees, although as noted, she had already instructed
Cruz to select only six A to Z workers to be hired. Respond-
ent then went through the motions of distributing applica-
tions to the A to Z employees, notwithstanding the fact that
Cruz had already decided on the six employees to be chosen.
Indeed, Respondent’s officials never even bothered to pick
up the completed applications of the A to Z employees from
Cruz as promised, and did not receive them until the date it
commenced operations, and when its initial staff had already
been notified of their selection.
Moreover, Respondent admits that it was impressed with
the performance of the A to Z employees in terms of their
ability to clean the facility, and it told McCulloch in Decem-
ber 1988 that ‘‘it had no problems with the employees’’ and
intended to hire these employees, although it would not need
all of them. Respondent also admits that it had only a short
time to compile its initial staff, that it was operating under
an interim contract, and was anxious to show that it was
doing good. Thus, it would be logical, and I find quite likely,
that employers in such a situation would fill its staff with an
experienced and well regarded crew of employees who are
already at the facility, and are familiar with the operations.
I find the record convincingly establishes that Respondent
would have done precisely that, had the Union not previously
expressed opposition to her intention to reduce staff, thereby
persuading Respondent that it would not recognize the
Union, as the representative of its employees at the facility.
Respondent is not legally obligated to hire all the former
A to Z employees, nor to fill its entire staff with former A
to Z workers. Nor is it precluded from having others to work
at the new facility. However, what it may not do, as noted,
is to refuse to hire employees to avoid having to recognize
the Union. U.S. Marine, supra. Therefore, in view of the
compelling prima facie case, detailed above, of discrimina-
tory intent by Respondent, it has the burden of establishing
that it would not have hired the former A to Z employees
absent their union affiliation. NLRB v. Transportation Man-
agement Co., 462 U.S. 393 (1983). American Cleaning Co.,
291 NLRB 399 (1988). Respondent has fallen far short of
meeting its burden in this regard.
319WECO CLEANING SPECIALISTS
Respondent has supplied no convincing rationale for its re-
fusal to hire more than six former A to Z employees. South-
west Merchandising Corp., 296 NLRB 1001 (1989); U.S.
Marine, supra. The only evidence presented of an work-relat-
ed difficulties with respect to any of the A to Z employees,
was the admissions of Benitez that she experienced lateness
and absence problems while at A to Z, including an attempt
by A to Z to terminate her. However, Respondent adduced
no evidence that these transgressions of Benitez played any
role in Respondent’s decision not to hire her. Indeed, Re-
spondent did not establish that it was aware of these prob-
lems of Benitez, or in fact that it was aware of any problems
with the performance of any of the A to Z employees, when
it decided to hire only six of these employees, of whom Re-
spondent had initially expressed its willingness to hire, and
had expressed admiration for their cleaning ability.
Further, Respondent furnished no convincing explanation
as to why it chose to hire the 10 non-A to Z employees,
whom it originally chose to be part of its initial staff at the
facility. I note that these 10 employees included 2 employees
hired ‘‘off the street,’’ with no previous cleaning experience,
1 who was employed by Respondent as a secretary, and 2
students, who Respondent knew would be leaving at the end
of the summer.
Subsequently to July 3, Respondent continued to hire nu-
merous employees to fill out its staff, to replace the A to Z
employees who refused hire, as well as to account for the
significant turnover experienced by Respondent. A number of
these new hires, included employees with no previous main-
tenance experience. Yet no further A to Z employee was
hired by Respondent until October 18, when it hired
Montalbano primarily because he was able to operate a
sweeper machine.
Respondent argues and its officials testify that it did not
hire former A to Z employees subsequent to July 3 because
those whom it did hire on July 3 refused to work unless Re-
spondent hired everyone, plus the statement of employee
Bridgeman that no one would work for Respondent unless it
hired all the A to Z employees present. However, I do not
find this contention persuasive. I note that a few days after
July 3, employees Bugg and Gonzalez came to the facility
and asked Alphonse Edwards if Respondent was hiring.
While Edwards promised to check with his wife and get back
to these two employees, he did not do so, notwithstanding
the fact as noted that it was continuing to hire inexperienced
people during this period of time.
Respondent’s October 6 letters, purporting to offer rein-
statement to employees, when in fact it had no jobs avail-
able, was in my view a clumsy attempt to cut off backpay,
was not made in good faith, and is further demonstrative of
its discriminatory practices. Respondent not only did not
have any jobs available for these employees, but forced them
to come to Norma Edwards’ home to fill out new applica-
tions, although Respondent already had applications on file
for these employees.
While much to Respondent’s probable chagrin, most of the
former A to Z employees complied with these unnecessary
conditions and filled out new applications, Respondent con-
tinued its refusal to hire any of them. While Edwards
claimed no jobs were available for these employees, and she
was awaiting GSA approval for more work, I note that Re-
spondent hired two non-A to Z employees on October 10 (4
days after the letters were sent to the employees), and two
more nonformer A to Z employees, with no previous experi-
ence, on October 18 and 19, respectively, at the same time
it was telling the former A to Z employees that it had no
jobs for them. Further on October 30, December 7 and 9, it
again hired inexperienced nonformer A to Zemployees, with-
out offering jobs to any of the experienced former A to Z
employees for whom it had twice received job applications.
Accordingly, I conclude that Respondent engaged in a hir-
ing scheme (both before and after July 3) designed to ex-
clude former A to Z employees from its work force, in order
to prevent such employees from comprising a majority of its
employees. Southwest Merchandising, supra; U.S. Marine,
supra.
While I again note that Respondent is not legally obligated
to hire its entire force from former A to Z employees, where
as here, it has discriminated in such hiring, any ambiguity as
to how many employees would have been hired, absent such
discrimination, must be resolved against the wrongdoer.
‘‘Thus, when a successor has discriminated in hiring, it can
be inferred that substantially all the former employees would
have been retained absent the unlawful discrimination.’’
American Press, supra at 938, citing Love’s Barbecue Res-
taurant, 245 NLRB 78 (1978). Here, Respondent’s initial
complement as testified to by its witnesses was 17 employ-
ees. Thus, once former A to Z employees declined employ-
ment, these 6 positions plus the other 11 could have been
filled by former A to Z employees. Therefore, there were
sufficient jobs available for all the 15 discriminatees alleged
in the complaint. C.f. Hubacher Cadillac, 262 NLRB 1062
(1983), enfd. 760 F.2d 275 (9th Cir. 1985).
Therefore, based on the foregoing, I conclude that Re-
spondent has refused to hire the former A to Z employees,
as alleged in the complaint, as part of its plan to avoid an
obligation to recognize and bargain with the Union, and has
thereby violated Section 8(a)(1) and (3) of the Act. U.S. Ma-
rine, supra; State Distributing Co., 282 NLRB 1048, 1058
(1987); Harvard Industries, supra.
B. The Alleged Refusal to Bargain
The record demonstrates clearly that but for Respondent’s
refusal to hire a majority of its work force from former A
to Z employees represented by the Union, all the other ele-
ments of successorship are present. Thus, Respondent is per-
forming the same work (although not the same amount) pre-
viously performed by A to Z, for the same customer at the
same location, with the same basic work schedule and job
classifications. Moreover, Respondent replaced A to Z with
no hiatus.
Since, but for the discriminatory refusal by Respondent to
hire the former A to Z employees, there would have heen a
continuity of employees from the A to Z to Respondent, a
finding that Respondent is a successor to A to Z at the Third
Avenue facility is appropriate. Thus, Respondent has violated
Section 8(a)(1) and (5) by refusing to recognize and bargain
with Local 32B-32J. Harvard Industries, supra; American
Press, supra at 937; State Distributing, at 1048.
Given the unlawful refusal to hire the former A to Z em-
ployees, plus the unlawful refusal to bargain with the Union,
the decision of employee Tyrone Bugg to refuse to work on
July 3, and thereafter to subsequently engage in picketing on
320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 I note that General Counsel makes no reference in his brief to
either Minier or Torres as unfair labor practice strikers, while urging
such a finding as to Bugg.
behalf of the Union, affords Bugg the status of an unfair
labor practice striker. Harvard Industries, supra.
Therefore, Respondent’s action in refusing to reinstate
Bugg on October 18, when he offered to return to work, con-
stitutes an additional violation of Section 8(a)(1) and (3) of
the Act. The complaint as amended also alleges that employ-
ees Torres and Minier were also unfair labor practice strik-
ers, as well as unlawfully denied reinstatement on October
18. I do not agree. The evidence discloses that Minier and
Torres both informed Cruz prior to July 3, that they did not
wish to accept Respondent’s offer of employment for reasons
unrelated to any unlawful activity of Respondent. Thus, since
they cannot be construed as unfair labor practice strikers, Re-
spondent has not violated the Act by refusing to reinstate
them on and after October 18.16
While under Burns, supra, a successor employer is ordi-
narily free to set initial terms of employment without bar-
gaining with the incumbent union, when an employer dis-
criminates in refusing to hire a majority of the predecessor’s
employees, it can be inferred that substantially all the former
employees would have been retained absent the discrimina-
tion. American Press, supra at 938; Love’s Barbecue, supra
at 82. In such circumstances, an employer cannot set initial
terms of employment without consultation with the union.
U.S. Marine, supra; State Distributing Co., supra at 1048;
Harvard Industries, supra.
Having concluded that Respondent has violated Section
8(a)(1) and (3) by refusing to hire the former A to Z employ-
ees, and that absent such discrimination, substantially all
these employees would have been retained, Respondent was
not entitled to set initial terms of employment without first
consulting with the Union.
Accordingly, I conclude that Respondent has unilaterlly
changed terms and conditions of employment, by departing
from established terms and conditions of employment of the
former A to Z employees as reflected in the collective-bar-
gaining agreement between A to Z and the Union in viola-
tion of Section 8(a)(1) and (5) of the Act. State Distributing
Co., supra; U.S. Marine, supra; American Press, supra.
C. The Alleged Unlawful Assistance
It is conceded that on and after July 3, Respondent made
pension and health and welfare contributions to Amal-
gamated Local 355 funds on behalf of certain of its employ-
ees employed at the Federal building, notwithstanding that it
had not recognized Local 355 as the collective-bargaining
representative of such employees.
In the absence of a lawful collective-bargaining agreement
covering such employees, such conduct by Respondent con-
stitutes blatantly unlawful assistance to Local 355, and is
violative of Section 8(a)(1) and (2) of the Act. I so find. Re-
liable Trailer & Body, 295 NLRB 1013 (1989); Harbor
Cartage, Inc., 269 NLRB 927, 928 (1984); Banff, Ltd., 197
NLRB 805 (1972); see also Russell Motors, 198 NLRB 351,
330–371 (1972).
CONCLUSIONS OF LAW
1. The Respondent, Weco Cleaning Specialists, Inc., is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Local 32B-32J, Service Employees International
Union, AFL–CIO and Amalgamated Local Union 355 are
labor organizations within the meaning of Section 2(5) of the
Act.
3. All service employees employed by Respondent at the
Third Avenue facility in Brooklyn, New York, excluding all
guards and supervisors within the meaning of the Act, con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Since on or about July 3, 1989, Local 32B-32J has
been the exclusive representative of the employees in the
above-described unit for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
5. By refusing to hire employees formerly employed by
its predecessor A to Z Maintenance Corp., because the em-
ployees were represented by Local 32B-32J, and in order to
avoid reorganizing and bargaining with Local 32B-32J, has
violated Section 8(a)(1) and (3) of the Act.
6. By refusing to recognize and bargain with Local 32B-
32J as the collective-bargaining representative of its employ-
ees employed in the aforesaid unit, Respondent has violated
Section 8(a)(1) and (5) of the Act.
7. By departing from preexisting conditions of employ-
ment of its employees without prior notification to and bar-
gaining with Local 32B-32J, Respondent has violated Section
8(a)(1) and (5) of the Act.
8. The strike engaged in by employee Tyrone Bugg was
an unfair labor strike, caused by the unfair labor practices of
Respondent described above.
9. By refusing to reinstate Tyrone Bugg on his uncondi-
tional application to return to work on October 18, 1989, Re-
spondent has violated Section 8(a)(1) and (3) of the Act.
10. By making payments into the pension and welfare
funds of Amalgamated Local 355, on behalf of its employ-
ees, notwithstanding the fact that Local 355 did not represent
an uncoerced majority of employees in the aforesaid bargain-
ing unit, Respondent has violated Section 8(a)(1) and (2) of
the Act.
11. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices in violation of Section 8(a)(1), (2), (3),
and (5) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the purposes of the Act.
I shall recommend that Respondent offer to the unit em-
ployees formerly employed by A to Z Maintenance to whom
it did not offer employment, including those listed below,
immediate and full employment, without prejudice to their
seniority and other rights previously enjoyed, discharging if
necessary any employees hired in their place.
Guiomar Alzate Elizabeth Gorden
John Boyne Arnie Hughes
Earline Bridgeman Ruben Gonzalez
Michelle Chillo Martha Benitez
321WECO CLEANING SPECIALISTS
17 As noted, Montalbano accepted a position with Respondent on
October 18, so no reinstatement order with respect to him is war-
ranted.
18 The record does not disclose whether Respondent made any
changes in wages. Thus, it will be necessary to resolve this issue at
the compliance stage as well.
19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Willie Colbert Frank Olivieri
Henry Garner Sal Zampella
Joseph Ditonno Tyrone Bugg
Luis Gomez
I shall also recommend that Respondent make whole the
above-named employees, plus Mike Montalbano,17 for any
loss of earnings and benefits they may have suffered by rea-
son of Respondent’s unlawful refusal to employ them. The
backpay period of all discriminatees but Tyrone Bugg shall
commence on July 3, 1989, and Bugg’s backpay commences
on October 18. Backpay shall be computed as in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173
(1987).
I note in connection with my recommended reinstatement
and backpay order as detailed above, that the record does
disclose some evidence that Respondent may have made of-
fers of reinstatement to Sal Zampella and/or some other em-
ployees. Since the record is incomplete with respect to these
matters, I shall leave to the compliance stage of this case,
the resolution of those issues.
Additionally, I would note that the record is incomplete
with respect to the status of employee Frank Olivieri. Testi-
mony in the record indicates that he was either on disability
or retired at the time of the union request that Respondent
hire the former A to Z employees. Moreover, although the
record contains no testimony as to the following, Respond-
ent’s brief asserts that Olivieri was in fact one of the original
group of employees whom Respondent intended to hire on
July 3. Since the record as to Olivieri is so incomplete and
inconsistent, I shall leave his status as a discriminatee and
entitlement to any remedial relief, also to the compliance
stage of the proceeding.
I shall also recommend that Respondent be ordered to rec-
ognize and on request bargain collectively with Local 32B-
32J with respect to the employees in the appropriate unit,
and, if agreement is reached to reduce the agreement to a
written contract. Additionally, Respondent shall be ordered to
rescind any departures from terms and conditions of employ-
ment that existed immediately before Respondent’s takeover
from A to Z Maintenance Company of the cleaning service
operation at the Third Avenue facility, and to retroactively
restore preexisting terms and conditions of employment, in-
cluding wage rates18 and benefits that would have been paid
absent such unilateral changes from July 3, 1989, until Re-
spondent negotiates in good faith with Local 32B-32J or to
impasse. The remission of wages shall be computed as in
Ogle Protection Service, 182 NLRB 682 (1970), enfd. 444
F.2d 502 (6th Cir. 1971), plus interest as prescribed in New
Horizons, supra. Respondent shall also remit all payments it
owes to the employee benefit funds and reimburse its em-
ployees for any expenses resulting from the failure to make
these payments in the manner set forth in Kraft Plumbing &
Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d
940 (9th Cir. 1981). Any amounts that Respondent must pay
into the benefit funds shall be determined in the manner set
forth in Merryweather Optical Co., 240 NLRB 1213 (1979).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended19
ORDER
The Respondent, Weco Cleaning Specialists, Inc., Brook-
lyn, New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 32B-32J Service Employees International Union as the
exclusive collective-bargaining representative of its employ-
ees in the following appropriate unit:
All service employees employed by Respondent at the
Third Avenue Facility in Brooklyn, New York, exclud-
ing all guards and supervisors within the meaning of
the Act.
(b) Unilaterally changing wages, hours, pension and wel-
fare contributions, or any other term and condition of em-
ployment of its employees in the above unit, without notify-
ing and bargaining with Local 32B-32J.
(c) Making payments into the pension and welfare funds
of Amalgamated Local Union 355, on behalf of its employ-
ees in the above unit.
(d) Refusing to hire or otherwise discriminating against
employees, because of their membership in Local 32B-32J or
to avoid recognizing and bargaining with Local 32B-32J.
(e) Refusing to reinstate unfair labor practice strikers.
(f) In any like or related manner interfering with, restrain-
ing, 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 ef-
fectuate the policies of the Act.
(a) Recognize, and on request bargain collectively with
Local 32B-32J as the exclusive representative of its employ-
ees in the above-described unit, with respect to rates of pay,
wages, hours, and other terms and conditions of employment
and, if an agreement is reached, embody it in a signed con-
tract.
(b) Rescind any departures from terms and conditions of
employment that existed immediately before its takeover
from A to Z Maintenance Company of the cleaning service
operation at the Third Avenue facility, and retroactively re-
store preexisting terms and conditions of employment, in-
cluding wage rates and benefit plans, and make the employ-
ees whole by remitting all wages and benefits that would
have been paid absent such unilateral changes from July 3,
1989, until it negotiates in good faith with the Union to
agreement or to impasse, in the manner set forth in the rem-
edy section of this decision.
(c) Offer to unit employees formerly employed by A to Z
Maintenance to whom it did not offer employment, including
those listed below, immediate and full employment, without
prejudice to their seniority and other rights previously en-
322 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
joyed, discharging if necessary any employees hired in their
place.
Guiomar Alzate Elizabeth Gorden
John Boyne Arnie Hughes
Earline Bridgeman Ruben Gonzalez
Michelle Chillo Martha Benitez
Willie Colbert Frank Olivieri
Henry Garner Sal Zampella
Joseph Ditonno Tyrone Bugg
Luis Gomez
(d) Make whole the above-named employees, plus em-
ployee Michael Montalbano for any loss of earnings and ben-
efits they may have suffered by reason of Respondent’s dis-
crimination against them, as described in the remedy section
of this decision.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Brooklyn, New York facility copies of the
attached notice marked ‘‘Appendix.’’20 Copies of the notice,
on forms provided by the Regional Director for Region 29,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with Local
32B-32J Service Employees International Union, AFL–CIO
as the exclucsive collective-bargaining representative of our
employees in the following appropriate unit:
All service employees employed by Respondent at the
Third Avenue Facility in Brooklyn, New York, exclud-
ing all guards and supervisors within the meaning of
the Act.
WE WILL NOT unilaterally change wages, hours, pension
and welfare contributions, or any other term and condition of
employment of our employees in the above unit, without no-
tifying and bargaining with Local 32B-32J.
WE WILL NOT make payments into the pension and wel-
fare funds of Amalgamated Local Union 355 on behalf of
our employees in the above unit.
WE WILL NOT refuse to reinstate unfair labor practice
strikers.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL recognize, and on request, bargain collectively
with Local 32B-32J as the exclusive representative of em-
ployees in the above-described unit, with respect to rates of
pay, wages, hours and other terms and conditions of employ-
ment and, if an agreement is reached, embody it in a signed
contract.
WE WILL rescind any departures from terms and conditions
of employment that existed immediately before our takeover
from A to Z Maintenance Co. of the cleaning service oper-
ation at the Third Avenue facility, retroactively restore pre-
existing terms and conditions of employment, including wage
rates and benefit plans, and make the employees whole by
remitting all wages and benefits that would have been paid
absent such unilateral changes from July 3, 1989, until we
negotiate in good faith with the Union to agreement or to im-
passe, plus interest.
WE WILL offer to unit employees formerly employed by
A to Z Maintenance to whom we did not offer employment,
including those listed below, immediate and full employ-
ment, without prejudice to their seniority and other rights
previously enjoyed, discharging if necessary any employees
hired in their place.
Guiomar Alzate Elizabeth Gorden
John Boyne Arnie Hughes
Earline Bridgeman Ruben Gonzalez
Michelle Chillo Martha Benitez
Willie Colbert Frank Olivieri
Henry Garner Sal Zampella
Joseph Ditonno Tyrone Bugg
Luis Gomez
WE WILL make whole the above-named employees, plus
employee Michael Montalbano for any loss of earnings, and
benefits they may have suffered by reason of our discrimina-
tion against them, plus interest.
WECO CLEANING SPECIALISTS, INC.