American Industrial Cleaning Co , Inc

National Labor Relations Board - Board Decisions

Oct 21, 1988

291 N.L.R.B. 399 (N.L.R.B. 1988)

AMERICAN CLEANING CO 399
American Industrial Cleaning Co , Inc and Local
32B-32J, Service Employees International
Union, AFL-CIO Case 29-CA-12690
October 21 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On April 28 1988, Administrative Law Judge
Robert T Snyder issued the attached decision The
Respondent filed exceptions and a supporting brief
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 brief' and has
decided to affirm the judge s rulings findings,2 and
conclusions and to adopt the recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent American
Industrial Cleaning Co Inc Great Neck New
York its officers, agents successors, and assigns
shall take the action set forth in the Order
I In its brief the Respondent which was not represented at the hearing
by an attorney but by its president Myron Stempa contends that this
proceeding should be reopened and referred to a different judge for a
hearing de novo because the judge failed to protect the rights of a pro se
respondent We have carefully reviewed the record in light of the Re
spondent s contention and find that as Stempa was accorded a full and
fair opportunity to present the Respondents case and cross -examine wit
nesses its contention is without meet See To State Transport Corp 245
NLRB 1030 fn 1 (1979)
2 The Respondent has excepted to some of the judge s credibility find
ings The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products 91 NLRB 544 ( 1950) enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Elias Feuer Esq for the General Counsel
Myron Stempa President for the Respondent
DECISION
STATEMENT OF THE CASE
ROBERT T SNYDER Administrative Law Judge This
case was heard by me on 17 August and 8 September
1987 at Brooklyn New York The complaint which
issued on 3 December 1986 alleges that the Respondent
as a successor employer to another employer in the per
formance of cleaning and maintenance services at an
office building in Hempstead New York refused to hire
its predecessors work force because of their affiliation
with the Charging Union and thereafter refused to bar
gain collectively with the Union as the exclusive repre
sentative of its service employees in the appropriate unit
in violation of Section 8(a)(3) and ( 1) and Section 8(a)(5)
and (1) respectively of the Act Respondent American
Industrial Cleaning Co Inc (Respondent or American)
filed an answer in which it denied having committed the
unfair labor practices alleged
All parties were given full opportunity to participate
to introduce relevant evidence to examine and cross ex
amine witnesses to argue orally and to file briefs Both
counsel for the General Counsel and Respondent repre
sented by its president Myron Stempa waived the filing
of briefs and summed up at the conclusion of the hear
ing All arguments made by the parties have been care
fully considered
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 STATUS
At all times material Respondent a New York corpo
ration has maintained its principal place of business at 10
Chelsea Place village of Great Neck town of North
Hempstead county of Nassau and State of New York
and a place of business at 425 Broad Hollow Road vii
lage of Melville town of Huntington county of Suffolk
and State of New York and various other places of busi
ness in the State of New York including a worksite lo
cated at 175 Fulton Avenue in the town of Hempstead
county of Nassau and State of New York (Respondent s
Hempstead facility) where it has been continuously en
gaged in providing cleaning and maintenance services
and related services The worksite at 175 Fulton Avenue
Hempstead New York is an office building owned by
the First Republic Corporation of America (First Repub
lic) a New York corporation engaged in the ownership
management operation and rental of office buildings
with an office and principal place of business located at
302 Fifth Avenue City and State of New York and an
office located at Respondents Hempstead facility
During 1986 Respondent in the course and conduct of
its business operations provided services valued in excess
of $1 million to various enterprises located within the
State of New York including First Republic which en
terpnses are directly engaged in interstate commerce
meeting one of the Board s standards of the assertion of
jurisdiction exclusive of indirect outflow or indirect
inflow Based on the foregoing which Respondent ad
mitted in its answer I find that Respondent is and has
been at all times material an employer engaged in com
merce within the meaning of Section 2(2) (6) and (7) of
the Act
Respondent admits and I also find that the Union is
and has been at all times material a labor organization
within the meaning of Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
For some years the Union has represented the service
employees employed in performing cleaning services at
the office building located at 175 Fulton Avenue Hemp
stead New York in collective bargaining with the clean
291 NLRB No 68
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing service companies that have over the years had
contracts with the building owner to clean and maintain
the building and its offices For a period of time until 14
October 19861 Tempco Service Industries Inc
(Tempco) held the service and maintenance contract
from First Republic to perform these services and it had
a collective bargaining relationship with the Union
which represented its employees in a bargaining unit
consisting of all full time and regular part time service
employees employed at the Hempstead facility exclusive
of all office clerical employees guards and all supervi
sors as defined in Section 2(11) of the Act The most
recent collective bargaining agreement concerning the
unit was effective from 1 March 1984 to 31 December
1986
By letter dated 10 September 1986 Louis H Nimkoff
assistant vice president of First Republic informed
Tempco that pursuant to a provision of their contract
dated 31 October 1984 30 days from receipt of the
notice First Republic was terminating their contract and
included 11 October as that date
Myron Stempa Respondents president testified that
after years of soliciting the service and maintenance
work at the 175 Fulton Avenue building and after being
solicited to bid and bidding on the service contract for
that facility in the spring or summer he was informed in
August that his company had been awarded the contract
At the time Nimkoff expressed a little concern to Stempa
and an associate about the possibility of having a prob
lem with the Union Stempa said he saw no reason for
such concern Nimkoff also informed Lorenzia Weaver
its building superintendent at 175 Fulton Avenue that
the new cleaner was cheaper than the people they were
dealing with According to Weaver the service employ
ees of Tempco had the responsibility of vacuuming the
floors cleaning and dusting the offices removing trash
mopping the public corridors and cleaning the bath
rooms at the Hempstead building He evaluated their
work as good with few complaints from building tenants
Tempco employed eight service employees at the
Hempstead building at the time its contract with First
Republic terminated They were Peggie Woody Lillian
Houston Dorothy Burke Chester Campbell Mattie
Jackson Esperanza Gonzalez Nelly Herrera and Ruel
Brooks Six of them testified about events that transpired
shortly after Tempco s contract ended All but one had
worked at the building many years for successive em
ployers
Peggie Woody the union shop steward had worked
at the building for 7 years and was earning $5 63 an hour
when her work for Tempco ended on Friday 10 Octo
ber Chester Campbell the foreman told her on that day
that when she finished her shift from 5 to 10 p m to
bring her barrel apparently including cleaning tools to
the basement Monday 13 October was Columbus Day
a holiday Woody and some of the other employees re
ported to the building late in the afternoon on Tuesday
14 October to see if they still had jobs and could contin
ue working for the new service contractor Besides
All dates hereinafter cited shall be in the year 1986 unless otherwise
noted
Woody who arnved at 4 30 p in Houston Burke Jack
son Gonzalez and Herrera also reported to the jobsite
between roughly 4 30 and 5 15 p m
Woody and Houston who arrived about the same
time went to the basement where they saw a man who
did not identify himself but who later confirmed their
physical identification of him He was Harry Robbins
who had been assigned by Myron Stempa to oversee the
commencement of Americans cleaning of the building
and its offices under its service contract the evening of
14 October
Woody testified that she asked Robbins if he was
taking applications for employees Robbins said no they
were bringing in their own workers Woody asked him
why Robbins replied because the building owner did
not want union workers there anymore because they
were too expensive Woody said Suppose we take a cut
in pay Robbins said he still did not want them We
are having our own workers in Robbins added because
we were once in the union he did not want union work
ers in there because we would be too much problem
Robbins said to give him our phone number and if there
was a position open he would hire us The assembled
employees then gave him their names addresses and
phone numbers Woody was never thereafter contacted
by American Before leaving Woody inquired of an em
ployee who was cleaning the floor where she previously
worked a Joe Jackson when he had been hired He said
that day 14 October
Lillian Houston testified that she had worked at the
175 Fulton Avenue Hempstead office building for 14
years Her work hours had been from 5 p in to 11 30
p in When she arrived with Woody she saw a strange
man in the lobby talking on the telephone This was
Harry Robbins When he got off the phone she said
hello are you the new man taking the building He said
yes he was They all then went downstairs and stood
near the building superintendents office in the basement
When the employees asked for their positions Robbins
told them I got my own people I can t use you because
you re in the union and the man this man don t want no
union in the building He was talking about the owner
of the building Robbins then asked for their names and
telephone numbers and said he would call Houston was
not thereafter contacted by American
Mattie Jackson testified that she had worked at the
Hempstead building for 21 years and had finished up for
Tempco on the Friday in October When a new cleaning
company took over the cleaning of the building the rou
tine was for the company that was finishing up its con
tract to direct its employees to take their cleaning equip
ment containers vacuum cleaner mop brooms and rags
to the first floor when they finished up on the last day
When the new company came in the following day the
same employees reported for work and were issued new
cleaning tools and equipment For 20 consecutive years
Jackson had worked there under successive union con
tracts
Jackson returned to the building Tuesday 14 October
a few minutes after 5 p in As was usual in such in
stances she reported to the basement where the new
AMERICAN CLEANING CO 401
company would issue new equipment and the employees
would talk to the new person in charge When she ar
rived she especially recalled seeing Burke Houston and
Woody gathered near and talking with a man who has
been identified on the record as Robbins He asked her if
she worked here When she said yes he asked her for
her name and phone number which she gave
Subsequently she received a typed letter dated 3 De
cember on Respondent letterhead stating If you are in
terested in employment kindly contact our office to
make an appointment for an interview and signed by
Myron Stempa Jackson called the telephone number
listed on the letterhead identified herself and was put
through to a man She gave her name said she had re
ceived a letter from him and asked if he had work The
man told her At the moment I do not have work If I
get anything in 111 let you know 111 write you a letter
She thanked him The record contains no evidence of
any further communication from Respondent with Jack
son
Another employee Esperanza Gonzalez also testified
She had worked at the Hempstead office building for a
year and a half After finishing work on 11 October she
also next reported to the building on 14 October She
went there after 5 p in with Nelly Herrera When they
arrived they asked someone associated with the building
owner for the keys apparently to the offices they
cleaned They were told no go downstairs to the base
ment because there s no more job no more work They
went to the basement and saw a tall black man Robbins
talking with the other cleaning women she had worked
with She learned from him there was no more job and a
new company coming in had people He asked her for
her phone number and address and said they would call
and contact her She supplied this information
She later received a letter from the company When
she called the number listed she was told they had a job
for her at night in Farmingdale Gonzalez said it was too
far from her home in Hempstead She also explained
that she did not drive a automobile and had no means of
transportation That was the end of the conversation
Gonzalez explained on the witness stand that she lived
one block from her prior job at 175 Fulton Avenue
Hempstead and she needed a job near her home because
she had children No other job offers were made to her
by American
Dorothy Burke had worked at 175 Fulton Avenue
Hempstead for 20 years Her last day of work at the
building was 10 October She returned on 14 October at
5 p in and went to the basement where she saw a
heavy black man Robbins standing with Woody and
Houston nearby When she arrived Robbins asked her if
she was one of the cleaning people She said yes He
then told her Well you no longer have a job in this
building When Burke asked why he said Because
this is a nonunion cleaning company and due to you are
in the union you will not have a job here Burke said
Why you all didn t tell us this before now Robbins re
plied Its not my place to tell you Tempco should
have told you They knew 30 days ago that they had lost
the contract He then asked her for her name and tele
phone number and told her if we have an opening we
will call and let you know because we have plenty of
jobs out here on the Island Burke also independently
recalled Robbins telling her if you weren t in the union
you would have the first choice to have a job here in
this building cleaning Before Burke left the basement
Jackson and then Gonzalez and Herrera also arrived
Including herself Woody and Houston six employees
had reported to the building that late afternoon
Burke later received a letter from the company When
she responded by phone she was told by a man to
whom she was referred that at the moment We do not
have anything but as soon as we get something we will
let you know She has not heard from him since
Nelly Herrera another service employee let go by
Tempco on 10 October testified that she returned to the
175 Fulton Avenue building with Gonzalez about 5 p in
After being informed that the new man from the new
company was in the basement and they should not take
the keys they went to the basement and saw the new
man speaking to their fellow workers As they ap
proached one of her co workers told him they both had
worked there referring to Gonzalez and Herrera Herre
ra testified that as the man continued speaking she under
stood him to say that they didn t have a union and
probably they couldn t pay us the same that we were
making with Tempco 2 She was then asked for her
name address and telephone number and she gave him
this information
She later received a letter in December from Respond
ent to contact them if interested in employment Herrera
went to American s Great Neck office in a friend s car
and met Stempa and another man later identified as
Fred Hellman Respondent s manager The other man of
fered her a job in Roslyn Herrera said it was too far
from where she lived Herrera lived in a building close
to the Hempstead office building The man said they
probably would get her closer She also signed a paper
stating that the Company offered her a job That same
evening at 10 p in she received a call from the same
man offering her a job cleaning a bank in Hicksville
Monday through Saturday Herrera asked how much she
would get paid She was told $4 an hour Herrera asked
again following the questioning of the American repre
sentative on 14 October if there was a union there and
was told no Herrera recalled her pay at Tempco under
the Union s contract had been $5 57 an hour for a 30
hour week Monday through Friday Herrera told the
man she was looking for a better offer because she was
then working in a place where she was making more In
her present job Herrera was also covered by a union
contract
Lorenzia Weaver superintendent of the 175 Fulton
Avenue building for First Republic was examined by the
General Counsel among other things about his recollec
tion of events at the building around 5 p in on 14 Octo
ber At that time he was walking into the basement
office accompanied by the assistant superintendent He
saw Harry from American Industrial and employees
2 Herrera Spanish speaking was now testifying with the aid of an in
terpreter Her earlier testimony in English relating Robbins remarks in
this regard before she was so assisted were substantially similar
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from Tempco standing in the corridor He had met
Harry Robbins earlier when the First Republic office
manager had introduced him and told Weaver and his as
sistant that Robbins would be the night supervisor for
American Industrial
Weaver recognized Woody Houston Jackson and
Burke along with two others whose names he did not
know Through a closed glass office window Weaver
observed Harry and the employees standing there for
about 15 minutes Weaver reported he did not hear ev
erything that they said He was aware that the employ
ees had come to the basement one by one to find out
what was going on During his cross examination by
Stempa Weaver testified he heard Peggie Woody ask
Harry were they going to be kept on and he told them
no because he had is own people That was as much as
he heard He did not hear any discussion that the em
ployees could not or would not be hired because they
had a union affiliation Neither did Weaver hear Harry
say that if they were interested in work they could con
tact their office
By certified letter dated 17 November addressed to
Respondent which Respondent stipulated it received
the Union advised that it represented the building service
employees at 175 Fulton Street (sic) who were terminat
ed by Respondent on 15 October made an unconditional
application for employment on behalf of the employees
and requested a conference for the purpose of negotiat
ing wages terms and conditions of employment On 19
November the Union sent a mailgram to Respondent re
peating its claim of representing the service employees at
175 Fulton Street Hempstead New York and again re
questing a conference at which it could submit the type
of agreement the Union was desirous of having to cover
the employees
Although the Union in each correspondence listed the
name and telephone number of its representative for
Stempa to contact Stempa testified he did not respond
to either Not having any affiliation with the Union not
wanting to have an affiliation with them he felt no need
to respond to them at that particular time although had
he received the letter before American began service he
would have responded As for the actions of Harry Rob
bins Stempa swore he never discussed Union with him
Robbins was not empowered to even go into such mat
ters and to his knowledge had no contact with Nimkoff
prior to or after American began the contract Finally
Stempa asserted it was not within Robbins power to hire
or to fire people and certainly he was not authorized to
terminate any body from Tempco because they did not
work for the Company
Stempa explained that Robbins was at the 175 Fulton
Avenue building because American was beginning the
cleaning service there The company had secured its em
ployees for the building through its usual means by ad
vertising Some people who were working for American
at the time and who needed more work were sent to that
job American had lined up a complete crew for the job
It was Robbins function to be responsible for the job to
have all the equipment that was necessary to apportion
out the work to the employees who were there to deter
mine any special needs of the client from the owner s
office manager and to oversee the cleaning of the build
ing Robbins was to remain at the site every night for 2
or 3 weeks He also had other buildings where American
had cleaning contracts on Long Island in the vicinity of
Hempstead that he had to check on The nature of Rob
bins job was to supervise the program of cleaning to set
up a building that the Company gets a contract to clean
by overseeing the quality of the work that its up to
standards and that everybody comes in If there is any
absenteeism Robbins gets that work covered by some
body that is on the job or by getting someone from an
other job to cover the particular location that was not
being cleaned
Stempa noted that he was phasing Robbins out that he
was not happy with his performance and at the time
that the 175 Fulton Avenue job started he had taken
away almost all of Robbins other work and because the
building was a rather large one had assigned Robbins to
spend most of his time there to see that the building was
cleaned properly Robbins was terminated 1 month to 6
weeks later because of the poor quality of his work
Robbins was paid a weekly salary which Stempa
characterized as a pretty high salary for what he was
doing Robbins had the working relationship with the
entire crew in the supervising of the way they cleaned
He also broke in new employees Anne Day a forelady
was also in the buildings crew and she shared that work
with Robbins
Robbins while employed among other key middle
management and supervisory employees of American
like them received certain medical benefits among other
benefits not available to the other mostly part time non
supervisory employees
American employs approximately 150 employees to do
cleanup work None of them are union employees and
American does not have any collective bargaining agree
ment with any labor organizations
According to Stempa now undergoing cross examina
tion and contrary to his earlier testimony about sending
employees from other jobs Anne Day was instrumental
in getting most of the employees for the 175 Fulton
Avenue building job Among other new employees who
started with American at the site was a Robert Day
who was hired on 26 October almost 2 weeks after the
job started He was a relative of Anne Day Stempa also
testified that in a position paper which he forwarded to
the Board on 30 October he may have indicated that
the supervisor Robbins had hired some of these employ
ees Stempa also acknowledged that more than three em
ployees could have been replaced on the 175 Fulton
Avenue cleaning job since it started not including
Robert Day if he was a replacement
The Respondents only witness other than Stempa
was Harry Robbins who had been out of the jurisdiction
on the original date of hearing but subsequently testified
on an adjourned date During the initial hearing day at
the point that the General Counsel rested his case
Stempa representing the Respondent stated that al
though he had read the summary of standard procedures
in formal hearings held before the Board in unfair labor
practice proceedings which accompanied the complaint
AMERICAN CLEANING CO 403
served on Respondent he had not realized that the hear
ing would involve the presentation of testimony by the
General Counsel witnesses who appeared He thus felt it
essential to have Robbins as a witness
It is significant to note that in a letter Stempa on
behalf of American sent to the Regional Office of the
Board dated 3 December the same date the complaint
issued but 2 days before its service on Respondent he
sought to confirm statements he had made in an earlier
telephone conversation with the Board agent One of
these statements was the following On the evening of
October 14th 1986 between the hour of 5 00-6 30 p m
approximately Harry Robins was in our offices at the
above location actually involved in discussion with sev
eral of our employees The above location was Amen
can s principal place of business at 10 Chelsea Place
Great Neck New York printed on its letterhead At
tached were two handwritten letters signed and dated by
Jose Pantoja assistant operations manager and Steve
Czap account executive respectively in which each of
them confirmed that Robbins was at the Great Neck
office on 14 October when the General Counsel wit
nesses placed him talking with them at the Hempstead
office building Pantoja wrote that between the hours of
4 and 7 p in he had conversations with Harry Robbins
and others in his office at the Company s office in Great
Neck Czap wrote that between the hours of 5 15 and
6 30 p in Harry Robbins was in his presence in Amen
can s office at 10 Chelsea Place Great Neck
Now on the adjourned date Harry Robbins testified
that on the first day that Respondent started up cleaning
services at 175 Fulton Avenue in Hempstead he arrived
there I guess about 5 30 6 As he was waiting for the
American truck to come in with supplies the former em
ployees there approached him for work He told them
that our own staff that they was [sic] hired from the
office and that was it Robbins denied at any time
having any discussion with these former employees re
garding a union situation in the building He was not
under the impression that the owner of the building did
not want union employees in the building In his 5 years
with the Company he had never known the Company to
refuse employment for people that were members of a
union American hired the employees for the 175 Fulton
Avenue job through the office He recalled one change
in employees since the job started That was the hiring
of a family member of Day to take her place when she
became supervisor of the building Robbins claimed that
the employees were lying when they testified he refused
them employment because they were union members or
because the owner of the building did not want to have
union people working in the building
On cross examination Robbins said that the discussion
with the women seeking work had taken 10 to 15 min
utes yet he could not recall anything else he had said
other than asking them for their telephone numbers and
addresses so he could place them someplace else as soon
as he got an opening Robbins was also sure that the
group he spoke with included men as well as women
A significant credibility issue must be resolved involv
ing the diametrically opposed key versions of the con
versation held between the Tempco employees and
Harry Robbins presented by the employees on the one
hand and Robbins on the other The testimony offered
by the building superintendent Weaver must also be
considered
All six of the employees who gathered on 14 October
in the basement of the 175 Fulton Avenue building to
learn about their prospects for continued employment by
the new cleaning contractor testified about their appear
ance there and their participation in the conversation
with Respondents representative They said that they
did not all arrive at the same time Woody and Houston
arrived first They each testified credibly that after Rob
bins informed them that the Company was bringing in
their own workers he informed them that the building
owner did not want union employees or a union in the
building Woody more articulate of the two explained
that Robbins explanation regarding why they were not
being hired was in response to a specific question she
had asked regarding why the Company was bringing in
its own workers She also added that as part of his expla
nation Robbins referred to the additional expense of
union workers Houston s testimony was consistent with
Woody s but not as detailed
Burke who next arrived on the scene apparently a
few minutes later presented a version that was entirely
consistent with Woody s and Houston s She placed
more emphasis on Robbins reliance on the fact that be
cause the new company was nonunion and they the as
sembled employees were in the Union they would have
no job In essence this was the same thing that Woody
and Houston testified they had been told Burke s testa
mony also shows that Robbins in providing his explana
tion was replying specifically to her inquiry made after
his earlier explanation provided to Woody and Houston
Neither Jackson nor Gonzalez testified to any state
ment made by Robbins in their presence in which union
considerations were a factor in denying them employ
ment at the building In Jackson s case it is apparent that
at the time she appeared Woody Houston and Burke
had already been engaged in conversation and she did
not ask any questions that might have led Robbins to ex
plain again why she was not being hired Because she
was not present when Robbins answered the inquiries of
the other three there is no conflict with their testimony
about to the part their union membership or the Union s
past bargaining relationship at the building played in the
employees being rejected for employment by Respond
ent
Gonzalez arrived with Herrera the last two of the six
to appear at the building on 14 October Gonzalez testa
feed she found out that there was no work for them from
the other employees there Herrera testified she heard
Robbins say the Company did not have a union and
probably could not pay the same as they were making
with Tempco This is a variation on the testimony of
Woody Houston and Burke but neither does it conflict
with their attribution to him of the statement hinging his
refusal to hire them on their union affiliation Although
more indirect it introduces union considerations and mo
tivation into a discussion in which they sought continu
ation of their jobs at the site and the new company re
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
jected their applications It also took place after Robbins
had provided the first two employees to arrive with an
explanation related more to the building owner s antiun
ion feelings which by the time Burke had made her in
query had changed to a reliance on Respondents own
nonunion situation Thus Robbins comments now to
Herrera were more in line with the explanation provided
the employee who had immediately preceded her in ar
riving at the building Robbins comments at this time
appear also to be more in the nature of an amplification
and justification for his earlier rejection of them as em
ployees It is noteworthy that Woody also attributed to
Robbins a reference to the additional expense the hiring
of union workers would entail another way of saying as
Herrera heard him that the Company could not afford
to pay them the wages or benefits they had received
with Tempco
The fact that Gonzalez did not testify to Robbins co
ercive explanation does not in my judgment make less
credible the testimony of the four employees who heard
such views expressed She did not attribute any direct
statements to Robbins dealing with the subject of the loss
of their jobs at the building but only with those in
which he requested information from her for a possible
future job elsewhere In receiving an explanation as to
her status from the others already there she may not
have heard the comments Herrera testified she heard him
make Being Spanish speaking and having testified with
out the aid of an interpreter as Herrera later did she
may have failed to articulate portions of a conversation
speaking in a language in which she was not fully able to
communicate In any event Gonzalez testimony does
not conflict with that of the four who testified to hearing
Robbins expressions of antiunion views
I also find that Weaver the building superintendent as
he himself explained did not overhear the later portions
of the employees discussion with Robbins in which he
provided them with the explanation concerning why the
Company had obtained its own people and would not
continue them in servicing the building Neither did he
hear Robbins solicit information in order to provide the
employees with other work comments which Robbins
acknowledges he made Weaver did provide corrobora
tion of the fact that six employees came to the basement
at staggered times to find out about their job and that
Harry Robbins spoke to them Although he did not
recall the names of two of them in light of the testimony
of the General Counsel s witnesses it is clear that Rob
bins must be discredited on his assertion that there were
men as well as women employees who approached him
in the basement that day
In weighing the corroborative testimony of the women
employees against Robbins flat denial that he rejected
their applications on union grounds I credit the employ
ees and find Robbins account lacking in authenticity and
genuineness Robbins fails to account for any questioning
by the employees of his initial statement that the Compa
ny had hired its own staff or even any further discussion
of the matter It seems unlikely that none of the six
women would have forgone this occasion to press him
on why they were not being hired after reporting specifi
cally to commence work or that Robbins would have
failed to provide further justification for his refusal to
hire them It is also likely that Robbins would have been
privy to Stempa s thinking on filling Respondent s work
needs under its service agreement as well as First Repub
he s expression of concern about union problems He had
worked for the Company for about 5 1/2 years and was
responsible for starting up and running the service oper
ation at the building No doubt the Company s low bid
was predicated on maintaining an operation free from
union obligations and Robbins was aware of his role in
avoiding additional costs that would jeopardize a profita
ble relationship with the building owner
Finally I deem it significant that the Respondent al
tered its main defense after the employees testified from
an initial denial that Harry Robbins was at the 175
Fulton Avenue building when the workers claimed they
confronted him supported by the written word of two
of his cohorts to finally admitting his presence but now
denying that he had uttered any of the discriminatory re
marks Such a profound turnabout in its strategy im
peaches Respondents motive and the credibility of its
defense particularly that of its principal officer Myron
Stempa who personally adopted the discredited position
of subordinates that Robbins was at Respondents main
Great Neck office when the conduct attributed to him
took place at the Hempstead office building It reveals a
disregard for the truth and a calculated willingness to
mislead in order to avoid the legal consequences of its
misconduct
Analysis and Conclusions
Aside from the issue of credibility whether Robbins
uttered the statements attributed to him which I have
concluded he did Respondent also raises the issue
whether Harry Robbins was an agent acting on its
behalf and a supervisor within the meaning of Section
2(11) of the Act whose conduct may have bound Re
spondent under the doctrine of respondeat superior
A fair evaluation of the evidence convinces me that
Robbins was a supervisor under the Act He was em
powered by Stempa to direct the employees in the per
formance of their duties having the discretion to reas
sign them within the building and from other jobs of Re
spondent and to train new employees He also had dis
cretion to do whatever proved necessary to satisfy any
special needs of the building owner in the employees
carrying out of their cleaning tasks taking Robbins
functioning beyond the routine direction of the employ
ees work In reassigning employees from other jobs
Robbins direction also went beyond the routine Rob
bins had the title of supervisor and received benefits and
salary commensurate with his responsibilities and func
tions as a key operative in Respondents employ His
work normally took him to a number of Respondent
worksites where the Company was performing cleaning
services for different clients In that role it appears that
Robbins was required to exercise independent judgment
as to employment and utilization of personnel in ample
menting Americans policy objectives of achieving and
maintaining high standards of quality in its cleaning oper
ations Even Stempa acknowledged that Robbins may
AMERICAN CLEANING CO 405
have hired a number of the employees assigned to the
Hempstead office building The evidence I have credited
also demonstrates that Robbins exercised authority to
reject employment applicants who sought work at its
jobsites
Aside from my conclusion concerning Robbins statu
tory supervisory role I also conclude that in represent
ing Respondent in meeting the Tempco employees and
responding to their inquiries Robbins was acting as
American s agent The Tempco employees on arrival
were directed to the buildings basement to see the new
contractors representative In questioning him about the
continued availability of their jobs and receiving his re
sponses the employees perceived Robbins as acting for
and representing company management when he spoke I
therefore conclude that the Respondent was responsible
for Robbins conduct in rejecting them as employees be
cause of their union affiliation See B P Custom Building
Products 251 NLRB 1337 1338 (1980)
I also conclude that the General Counsel has estab
fished a prima facie case of discriminatory refusal to hire
the eight named employees who comprised the Tempco
workcrew at 175 Fulton Avenue through the termination
of Tempco s service contract on or about 11 October
According to the credited testimony of four of the
Tempco employees Respondents agent and supervisor
hinged the Company s refusal to hire the Tempco service
employees on their union affiliation and union represen
tation in the bargaining unit at the Hempstead facility
Myron Stempa Respondents president was aware at
least since about the time his company was awarded the
service contract that Tempco the predecessor cleaning
contractor had a bargaining relationship with the Union
and was paying union contractual wages and benefits
Respondent was a nonunion contractor that had no bar
gaining relationship with any unions on behalf of its em
ployees American s low successful bid on the contract
for the Hempstead facility was calculated without regard
to union wages or fringe benefits for the service employ
ees
In proceeding to obtain staff for the Hempstead facile
ty Respondent went to its usual sources including ad
vertising Contrary to Stempa s initial claim most if not
all of the employees who went to work for American at
the Hempstead facility were newly hired Under cross
examination Stempa first grudgingly admitted they were
not all former employees then that Robbins may have
hired some and finally that Anne Day who later
became forelady at the site was instrumental in bunging
in most of the people As the need for replacement em
ployees subsequently arose Respondent fulfilled its em
ployment needs from the same sources including Day
The reason Stempa did not continue on the Tempco
workcrew as cleaning predecessors at the building had
done on past occasions became abundantly clear in Rob
bins remarks to the assembled Tempco employees as
American was just getting underway pursuant to its serv
ice agreement with First Republic As its representative
made clear in other words the Tempco employees were
tainted and not suitable for hiring because they were
members of and represented by the Union and if they
were to be hired Respondent would be saddled with a
union relationship and union terms and conditions of em
ployment Places could be found for them individually
in other American service operations but their hiring at
the Hempstead facility would lead to only one result
union obligations and higher employee costs A refusal
to employ expressed in such terms supports the conclu
sion that American refused to hire the alleged discrimin
atees because of their support of the Union in violation
of Section 8(a)(3) and (1) of the Act See American Press
280 NLRB 937 (1986) Ryder System 280 NLRB 1024
(1986)
Respondent is hardly in a position to overcome the
General Counsels prima facie case because it failed to
produce any evidence apart from the protected activities
of the employees on which it relied to justify its failure
to hire the alleged discriminatees See NLRB v Transpor
tation Management Corp 462 U S 393 (1983) When in
mid November the Union on their behalf inter alia
made unconditional application for their employment
Stempa admitted he failed and refused to reply not
wanting to have an affiliation with the Union Further
more although Stempa made a general accusation that
Tempco s services had been poor there is no credible
evidence to support that charge First Republics own
building superintendent supported the contrary judgment
that Tempco s services had been of a high order and that
quality was not a hallmark of Americans operation
From all that appears First Republics solicitation of
bids for a new cleaner and selection of American had
been motivated by a desire to limit costs and not because
of any lack of quality of Tempco s services under its
contract
In its answer American did not dispute the appropn
ateness of the bargaining unit limited to the full time and
regular part time service employees of Respondent em
ployed at its Hempstead facility Indeed that had been
the unit with respect to which Tempco and its predeces
sor contractors had bargained over the years with First
Republic
By letter and mailgram the Union in mid November
claimed to represent the service employees at the Hemp
stead facility and demanded bargaining over their wages
terms and conditions of employment As noted although
acknowledging their receipt Stempa chose not to reply
wishing to avoid any dealings with the Union and rely
ing on American s hire of a full complement of nonunion
employees to staff the Hempstead facility
In order for the Union to be able to succeed on the
refusal to bargain allegation there must be a preliminary
finding that American constitutes a successor employer
to Tempco As the Board has noted a purchaser of a
business may have certain legal obligations imposed on
it Where there is substantial continuity in the identity
of the employing enterprise one such obligation will be
that of the employer to recognize and bargain with a
union that represents the former owner s employees
However if in the course of the transfer there have been
substantial and material changes in the employing enter
prise the new employer will not be found to have suc
ceeded to the bargaining obligation of the former em
ployer Mondovi Foods Corp 235 NLRB 1080 1082
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(1978) See NLRB v Burns Security Service 406 U S 272
(1972)
The traditional criteria the Board examines to deter
mine whether there has been substantial continuity in the
identity of the employing enterprise include whether
there has been substantial continuity in (1) business oper
ations (2) plant (3) work force (4) jobs and working
conditions (5) supervisors (6) machinery equipment
and methods of production and (7) product or service
Grico Corp 265 NLRB 1344 (1982)
In Mondovi Foods Corp supra the Board explained
that a prime factor in determining whether the new em
ployer has succeeded to the former employers bargain
ing obligation is whether the purchaser has hired a suffi
cient number of former employees of the seller to consti
tute a majority of the employee complement of the ap
propriate unit See NLRB v Burns supra Howard John
son Co v Hotel Employees 417 U S 249 (1974) Spruce
Up Corp 209 NLRB 194 (1974) Once it has been
found that the purchaser has hired such a majority the
Board considers such circumstances as whether or not
there has been a long hiatus in resuming operation a
change in product line or market or a change of location
or scale of operations Mondovi Foods supra at 1082
In cases in which but for unlawful considerations the
continuity of the predecessors employee complement
would have been maintained the Board has commented
It is well established that where the other requisite ele
ments for finding successorship are present a new
owners failure to hire its predecessors employees will
not defeat a claim of successorship if such failure is
shown to have been motivated by the former employees
union affiliation American Press supra In the same case
the Board went on to conclude that when a successor
employer has discriminated in hiring it can be inferred
that substantially all of the former employees would
have been retained absent the unlawful discrimination
See also Ryder System cited supra
Applying these principles to the instant facts it is clear
that American is the successor employer to Tempco But
for Respondent s unlawful conduct probably all and cer
tainly a majority of the work force would have been
composed of employees of the predecessor employer
Furthermore American commenced its operations imme
diately without any hiatus the same service continued to
be performed at the same location for the same customer
using the the same jobs similar equipment methods and
operations Accordingly I conclude that Re pondent as
a successor employer violated Section 8(a)(5) and (1) of
the Act by refusing to bargain with the Union
In accordance with my findings above I make the fol
lowing
facility exclusive of all office clerical employees guards
and all supervisors as defined in Section 2(11) of the Act
constitute a unit appropriate for the purposes of collec
tive bargaining within the meaning of Section 9(b) of the
Act
4 At all times material the Union has been the exclu
live representative of all the employees in the above unit
for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act
5 Respondent American Industrial Cleaning Co is a
successor employer to Tempco Service Industries Inc
and by disavowing its bargaining obligation to the
Union and departing from preexisting rates of pay and
benefits without prior notification to and bargaining with
the Union the Respondent violated Section 8(a)(5) and
(1) of the Act
6 By telling employees that they would not be hired
because of their union affiliation the Respondent has
violated Section 8(a)(1) of the Act
7 By failing to hire the employees named in paragraph
2(a) of the Order because of their union affiliation the
Respondent in each instance engaged in unfair labor
practices in violation of Section 8(a)(3) and (1) of the
Act by interfering with the exercise of their rights guar
anteed in Section 7 of the Act and by discriminating in
regard to their hire or tenure of employment thereby
discouraging membership in a labor organization
8 These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) (3)
and (5) of the Act I shall recommend that the Respond
ent be ordered to cease and desist therefrom and to take
certain affirmative action designed to effectuate the poli
cies of the Act The Respondent shall be required to
offer employees Ruel Brooks Dorothy Burke Chester
Campbell Esperanza Gonzalez Nelly Herrera Lillian
Houston Mattie Jackson and Peggie Woody employ
ment in their former jobs or if those jobs no longer exist
to substantially equivalent positions without prejudice to
their seniority or other rights and privileges previously
enjoyed discharging if necessary employees hired from
other sources on and after 14 October 1986 to make
room for them and make them whole for any loss of
earnings that they may have suffered due to the discrimi
nation against them from 14 October 1986 until proper
offer of reinstatement 3 less net intenm(earnings as pre
scribed in F W Woolworth Co 90 NLRB 289 (1950)
with interest thereon as computed in New Horizons for
the Retarded 283 NLRB 1173 (1987) 4
CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2) (6) and (7) of the
Act
2 The Union is a labor organization within the mean
ing of Section 2(5) of the Act
3 All full time and regular part time service employ
ees of American Industrial Cleaning Co as successor to
Tempco Service Irdustries employed at its Hempstead
9 Respondent s job offers to some of the discrimmatees whatever their
other deficiencies were clearly inadequate as a matter of law to toll the
running of backpay See Redlands Construction Co 265 NLRB 586
(1982) Campbell Harris Electric 263 NLRB 1143 (1982) enfd 719 F 2d
292 (8th Cir 1983) Electric Machinery Co 243 NLRB 239 (1979)
4 Under New Horizons interest is computed at the short term Federal
rate for the underpayment of taxes as set out in the 1986 amendment of
25 U S C § 6621 Interest accrued before 1 January 1987 (the effective
date of the amendment) shall be computed as in Florida Corp 231 NLRB
651 (1977)
AMERICAN CLEANING CO 407
Further I shall recommend that the Respondent be or
dered to recognize and bargain with Local 32B-32J
Service Employees International Union AFL-CIO in
the appropriate collective bargaining unit and if agree
ment is reached to reduce the agreement to a written
contract In addition I shall recommend the Respondent
be ordered to cancel on request by the Union changes
in rates of pay and benefits unilaterally effectuated and
to make the employees whole by remitting all wages and
benefits5 that would have been paid absent such changes
from 14 October 1986 until the Respondent negotiates in
good faith with the Union to agreement or to impasse 6
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
ed7
ORDER
The Respondent American Industrial Cleaning Co
Inc Great Neck New York its officers agents succes
sors and assigns shall
I Cease and desist from
(a) Refusing to recognize and bargain collectively with
Local 32B-32J Service Employees International Union
AFL-CIO as the exclusive collective bargaining repre
sentative of its employees in the following appropriate
unit
All full time and regular part time service employ
ees of American Industrial Cleaning Co Inc as
successor to Tempco Service Industries Inc em
ployed at its Hempstead facility exclusive of all
office clerical employees guards and all supervisors
as defined in Section 2(11) of the Act
(b) Making changes unilaterally in the rates of pay and
benefits of the employees in the above unit without
notice to and bargaining with the above Union
(c) Telling applicants that they will not be hired be
cause of their union affiliation
(d) Refusing to hire or otherwise discriminating
against employees in their hire or tenure of employment
because they are members of or gave support to Local
32B-32J Service Employees International Union AFL-
CIO or any other labor organization
(e) In any other manner interfering 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 immediate and full employment to Ruel
Brooks Dorothy Burke Chester Campbell Esperanza
Gonzalez Nelly Herrera Lillian Houston Mattie Jack
5 See Kraft Plumbing & Heating 252 NLRB 891 (1980) Merryweather
Optical Co 240 NLRB 1213 1216 fn 7 (1979)
B The remittance of wages and benefits is to be made consistent with
the make whole remedy set forth above regarding the discnminatees save
that where appropriate the amount due shall be paid as prescribed in
Ogle Protection Service 183 NLRB 682 (1970)
7 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
son and Peggie Woody without prejudice to their se
monty or any other rights or privileges previously en
,toyed discharging if necessary employees hired from
other sources on and after 14 October 1986 to make
room for them
(b) Make whole Ruel Brooks Dorothy Burke Chester
Campbell Esperanza Gonzalez Nelly Herrera Lillian
Houston Mattie Jackson and Peggie Woody for any
loss of pay they may have suffered as a result of the dis
crimination against them in the manner described in the
remedy section of this decision
(c) On request bargain with the Union as the exclusive
representative of the employees in the above described
appropriate unit concerning terms and conditions of em
ployment and if an understanding is reached embody
the understanding in a signed agreement
(d) On request of the above Union restore the status
quo ante that existed prior to the implementation of the
unilateral changes made by the Respondent regarding the
rates of pay wages and other terms and conditions of
employment in the unit described above and make the
employees whole by remitting all wages and benefits that
would have been paid absent such changes plus interest
from 14 October 1986 until it negotiates in good faith
with the Union to agreement or to impasse in the
manner set forth 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 pay
roll records social security payment records timecards
personnel records and reports and all other records nec
essary to analyze the amount of backpay due under the
terms of this Order
(t) Post at its principal office and place of business in
Great Neck New York and at its Hempstead facility lo
cated at 75 Fulton Avenue Heampstead New York and
mail to each of the employees who have been found to
be discriminatees entiled to a make whole remedy here
under at their last known addresses copies of the at
tached notice marked Appendix 8 Copies of the notice
on forms provided by the Regional Director for Region
29 after being signed by the Respondents authorized
representative shall be posted by the Respondent imme
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no
tices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered defaced or covered by any other
material
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
8 If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the 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
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form join or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec
tion
To choose not to engage in any of these protect
ed concerted activities
WE WILL NOT refuse to recognize Local 32B-32J
Service Employees International Union AFL-CIO as
the exclusive collective bargaining representative of our
employees in the following appropriate unit
All full time and regular part time service employ
ees of American Industrial Cleaning Co Inc as
successor to Tempco Service Industries Inc em
ployed at its Hempstead facility exclusive of all
office clerical employees guards and all supervisors
as defined in Section 2(11) of the Act
WE WILL NOT make unilaterally changes in the rates
of pay and benefits of the employees in the above unit
without notice to and bargaining with the above Union
WE WILL NOT tell applicants that they will not be
hired because of their union affiliation
WE WILL NOT refuse to hire or otherwise discriminate
against employees to avoid bargaining with a union
WE WILL NOT in any other like manner interfere with
restrain or coerce you in the exercise of the rights guar
anteed you by Section 7 of the Act
WE WILL offer immediate and full employment to
Ruel Brooks Dorothy Burke Chester Campbell Esper
anza Gonzalez Nelly Herrera Lillian Houston Mattie
Jackson and Peggie Woody without prejudice to their
seniority or any other rights or privileges previously en
toyed discharging if necessary employees hired from
other sources on and after 14 October 1986 to make
room for them and WE WILL make them whole for any
loss of earnings they may have suffered by reason of our
unlawful failure to hire them with interest
WE WILL on request bargain with the above Union as
the exclusive representative of all the employees in the
above unit concerning their terms and conditions of em
ployment and if an understanding is reached embody it
in a signed contract if asked to do so
WE WILL on request of the above Union cancel any
changes from the rates of pay and benefits that existed
immediately before our takeover of the Tempco Service
Industries Inc cleaning operation at 175 Fulton Avenue
Hempstead New York and make the employees in the
above unit whole by remitting all wages and benefits that
would have been paid absent such changes plus interest
from 14 October 1986 until we negotiate in good faith
with the Union to agreement or to impasse
AMERICAN INDUSTRIAL CLEANING CO
INC