Citywide Service Corp.

National Labor Relations Board - Board Decisions

Jun 15, 1995

317 N.L.R.B. 861 (N.L.R.B. 1995)

861
317 NLRB No. 127
CITYWIDE SERVICE CORP.
1 On March 24, 1994, Administrative Law Judge Steven Davis
issued the attached decision. The General Counsel filed exceptions
and a supporting brief. Respondent Local 143 filed exceptions. The
Charging Party, Local 32B-32J, filed cross-exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 In fn. 4 of the judge’s decision, he referred to the testimony of
Hugo Tzorin. We note that Tzorin did not testify in this proceeding.
In sec. II,A, par. 18, the judge referred to employee Estrada, when
he clearly meant employee Sapia. These errors do not affect the re-
sult in this case.
3 See Regional Import Trucking Co., 292 NLRB 206, 229 (1988).
For the reasons stated above and in the judge’s decision, we find
no merit in Local 143’s exceptions to the judge’s findings that it vio-
lated Sec. 8(b)(1)(A) and (2) by accepting recognition from Hudson
and by entering into a collective-bargaining agreement with it. We
note that the judge did not attach a copy of the remedial notice
which Local 143 must post as part of the remedy for its unfair labor
practices. We have attached this notice, marked ‘‘Appendix B,’’ to
our Decision and Order.
Citywide Service Corp., and its alter ego Hudson
Service Corp. and Sandra Estrada and Estella
Sapia and Patricia Godash
Hudson Service Corp. and Local 32B-32J, Service
Employees International Union, AFL–CIO and
Production and Service Employees Inter-
national Union, Local 143 Ind., Party to the
Contract
Production and Service Employees International
Union, Local 143 Ind. and Local 32B-32J, Serv-
ice Employees International Union, AFL–CIO.
Cases 2–CA–25016, 2–CA–25033, 2–CA–25057,
2–CA–25331, 2–CA–25434, and 2–CB–14082
June 15, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
This case presents several unfair labor practice
issues concerning the transfer of operations from Re-
spondent Citywide Service Corp., which had a collec-
tive-bargaining agreement with Local 32B-32J, Service
Employees International Union, AFL–CIO (Local 32B-
32J) for a unit of service employees, to alter ego Re-
spondent Hudson Service Corp., which recognized and
executed a collective-bargaining agreement with Re-
spondent Production and Service Employees Inter-
national Union, Local 143 Ind. (Respondent Local
143) for a unit of service employees.1
The Board has considered the decision and the
record in light of the exceptions and brief, and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions only to the extent consistent with this Deci-
sion and to adopt the recommended Order as modified.
1. There are no exceptions to the judge’s finding
that Respondent Hudson Service Corp. violated Section
8(a)(2) of the National Labor Relations Act (the Act)
because it recognized Respondent Local 143 as the ex-
clusive collective-bargaining representative of Hudson
employees at a time when Local 143 had not obtained
authorization cards from a majority of service employ-
ees in the bargaining unit. We affirm this finding. The
General Counsel’s exceptions, however, reiterate his
contention that another basis exists for finding this vio-
lation. We agree.
The General Counsel relies on undisputed evidence
that: (1) Hudson is the alter ego of Respondent City-
wide Service Corp.; (2) Local 32B-32J was the major-
ity representative of Citywide’s service employees; (3)
Citywide’s collective-bargaining agreement with Local
32B-32J for the service employee unit was not due to
expire until December 31, 1992; and (4) Hudson rec-
ognized Local 143 as representative of a service em-
ployee unit in September 1991, while the Local 32B-
32J agreement was still in effect. Under these cir-
cumstances, the General Counsel correctly contends
that Local 32B-32J continued to be the exclusive bar-
gaining representative, under Section 9(a) of the Act,
of the service employees of Citywide and its alter ego
Hudson. No other union could lawfully represent those
employees when Hudson recognized Local 143. For
this reason, we find that Hudson’s recognition of Local
143 and its subsequent execution and enforcement of
a collective-bargaining agreement with that union vio-
lated Section 8(a)(2) of the Act irrespective of whether
Local 143 had obtained authorization cards from a ma-
jority of unit employees at the time of recognition.3
2. The General Counsel also excepts to the judge’s
finding that the limitations period in Section 10(b) of
the Act bars finding that alter egos Citywide and Hud-
son violated Section 8(a)(5) by failing, since August 5,
1991, to continue recognition of Local 32B-32J as the
exclusive representative of the service employee unit
and to abide by the terms of the Citywide contract. We
find merit in these exceptions.
The 8(a)(5) allegation first appeared in a second
amended charge filed on January 21, 1993, by Local
32B-32J in Case 2–CA–25331. On February 19, 1993,
the Regional Director issued an order to amend the
consolidated complaint further to include this allega-
tion. The General Counsel has conceded that the
8(a)(5) charge was untimely filed nearly 1-1/2 years
after the alleged bargaining violation. He has con-
tended, however, that there are two reasons for finding
that Section 10(b) does not bar litigation of the charge:
(1) Respondents Citywide and Hudson fraudulently
concealed their alter ego relationship, and (2) the
8(a)(5) allegation was closely related to timely filed
8(a)(2) charges.
The judge expressly considered and rejected the
General Counsel’s fraudulent concealment theory as a
basis for tolling Section 10(b) for more than a few
months, an insufficient period of time to support find-
862 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Allegations involving the same class of violations usually involve
the same section of the Act, but this is not invariably so. See, e.g.,
Whitewood Maintenance Co., 292 NLRB 1159, 1169–1170 (1989),
where the Board held that an untimely 8(a)(2) allegation was closely
related to a timely 8(a)(5) allegation. The litigation of an additional,
independent 8(a)(2) theory of violation (Local 143’s lack of a major-
ity card showing) does not negate the significance of a theory of vio-
lation common to both the 8(a)(2) and (5) violations.
5 Because the provisions of employee benefit fund agreements are
variable and complex, we leave to the compliance stage the question
whether the Respondents must pay any additional amounts into the
benefit funds in order to satisfy our ‘‘make-whole’’ remedy.
Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).
ing the January 21, 1993, 8(a)(5) charge to be timely.
The General Counsel does not except to the rejection
of this argument. He does except, however, to the
judge’s failure to consider the alternative ‘‘closely re-
lated’’ argument against imposition of the 10(b) bar.
In determining whether untimely filed allegations
are closely related to timely filed allegations, the
Board considers ‘‘whether the otherwise untimely alle-
gations are of the same class as the violations alleged
in the pending timely charge,’’ ‘‘whether the otherwise
untimely allegations arise from the same factual situa-
tion or sequence of events as the allegations in the
pending timely charge,’’ and ‘‘whether a respondent
would raise the same or similar defenses to both alle-
gations.’’ Redd-I, Inc., 290 NLRB 1115, 1118 (1988).
In this case, each of these factors warrants finding that
the 8(a)(5) allegation is closely related to the timely
filed 8(a)(2) charge. First, as demonstrated by the anal-
ysis in the preceding section of this decision, the re-
fusal to bargain allegation involves the same legal the-
ory as the unlawful recognition theory, i.e., that City-
wide and Hudson were alter egos and were bound to
recognize Local 32B-32J’s continuing status as the
9(a) representative of their service employees.4 Sec-
ond, the allegations clearly arise from the same factual
situation involving Citywide’s collective-bargaining re-
lationship with Local 32B-32J, Citywide’s demise,
Hudson’s commencement of operations, and Hudson’s
collective-bargaining relationship with Local 143. Fi-
nally, we find that the Respondents would have raised
similar defenses and presented similar evidence for
both allegations. Indeed, the principal, if not the only
defense to the common 8(a)(2) and (5) theory of viola-
tion is that Hudson is not an alter ego of Citywide.
Hudson has fully litigated this defense of its conduct.
Based on the foregoing, we find that Section 10(b)
does not bar the litigation of 8(a)(5) allegations which
are closely related to 8(a)(2) allegations in timely filed
charges. We further find, based on undisputed facts,
that Respondent Hudson and its alter ego Citywide
violated Section 8(a)(5) of the Act on and after August
5, 1991, by failing to recognize Local 32B-32J as the
exclusive representative of all employees in the appro-
priate bargaining unit and by failing to adhere to and
apply the terms of the extant collective-bargaining
agreement with Local 32B-32J for those unit employ-
ees.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 6.
‘‘6. By recognizing Local 143 as the exclusive bar-
gaining representative of its employees, and by enter-
ing into a collective-bargaining agreement containing a
union-security clause with Local 143 on September 13,
1991, covering the employees, at a time when Local
143 did not represent an uncoerced majority of the em-
ployees, or when Local 32B-32J was the recognized
exclusive bargaining representative of those employees,
Respondent Hudson violated Section 8(a)(1), (2), and
(3) of the Act.’’
2. Substitute the following for Conclusions of Law
12 and 13.
‘‘12. By interrogating employees about their union
sympathies, Respondent Citywide violated Section
8(a)(1) of the Act.
‘‘13. By refusing to recognize and bargain with
Local 32B-32J as the exclusive bargaining representa-
tive of all the employees in the appropriate unit, and
by failing to adhere to the terms of a collective-bar-
gaining agreement, effective from January 1, 1990, to
December 31, 1992, with Local 32B-32J, Respondents
Hudson and Citywide have engaged in and are engag-
ing in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.’’
AMENDED REMEDY
Having found that Respondents Citywide Service
Corp., and its alter ego Hudson Service Corp. violated
Section 8(a)(5) and (1) of the Act, we shall order them
to recognize and, on request, bargain with Local 32B-
32J as the exclusive bargaining representative of all
employees in the appropriate unit. We shall also order
the Respondents, on request by the Union, to reinstate
the terms and conditions of employment set forth in
the January 1, 1990, to December 31, 1992 collective-
bargaining agreement with Local 32B-32J, and to
make whole any employees who may have incurred
losses as a result of their unlawful failure to adhere to
the terms of that agreement. Any backpay owed shall
be computed in the manner prescribed in Ogle Protec-
tion Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). The Respondents
shall also make whole employees by making any un-
paid fringe benefit fund contribution payments since
August 5, 1991, as provided by the above-mentioned
collective-bargaining agreement,5 and by reimbursing
employees for any expenses ensuing from the Re-
863CITYWIDE SERVICE CORP.
6 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the employer’s
delinquent contributions during the period of the delinquency, the re-
spondent will reimburse the employee, but the amount of such reim-
bursement will constitute a setoff to the amount that the respondent
otherwise owes the fund.
spondents’ failure to make such contribution payments,
as set forth in Kraft Plumbing & Heating, 252 NLRB
891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981).6 Reimbursement payments to employees shall
include interest to be computed in the manner pre-
scribed in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that
A. Respondent Citywide Service Corp., and its alter
ego Hudson Service Corp., New York, New York, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging or suspending employees because of
their union or other protected, concerted activities.
(b) Recognizing or bargaining with Production and
Service Employees International Union, Local 143 Ind.
as the exclusive collective-bargaining representative of
the employees employed by Hudson, unless and until
Local 143 has been certified by the Board as the ex-
clusive bargaining representative of any such employ-
ees in an appropriate bargaining unit.
(c) Giving effect to the September 13, 1991 collec-
tive-bargaining agreement executed by Respondents
with respect to the employees employed by Hudson,
and any modifications or current extensions of that
agreement.
(d) Recognizing and bargaining with Local 143 or
any other labor organization at a time when such labor
organization does not represent an uncoerced majority
of the employees in the unit as to which recognition
is extended, or when another union is the recognized
exclusive bargaining representative of that bargaining
unit within the meaning of Section 9(a) of the Act.
(e) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Local 32B-32J, Service Employ-
ees International Union, AFL–CIO as the exclusive
bargaining representative of their employees in the fol-
lowing appropriate unit:
All full-time and regular part-time service em-
ployees employed by the Respondent Citywide
Service Corp. and its alter ego Hudson Service
Corp. in any facility including residential build-
ings in New York, Nassau, and Suffolk counties,
and New Jersey.
(f) Failing to abide by the terms of a collective-bar-
gaining agreement with Local 32B-32J for employees
in the appropriate unit.
(g) Asking employees to sign authorization cards on
behalf of Local 143.
(h) Offering employees benefits, including paid va-
cation, sick days, holidays, and a guarantee of work,
if they would abandon their grievances with Local
32B-32J.
(i) Threatening employees with discharge, and with
continued harassment, if they did not abandon their
grievances with Local 32B-32J, and if they did not
sign a card for Local 143.
(j) Threatening to refuse to give an employee a fa-
vorable reference because of the employee’s union ac-
tivities.
(k) Threatening to reduce an employee’s hours of
work because the employee appeared in state court in
behalf of Local 32B-32J.
(l) Interrogating employees concerning their union
interest, activities, or membership.
(m) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Sandra Estrada, Estella Sapia, and Fer-
nando Martinez immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and make them and Patricia Godash
whole, in the manner set forth in the remedy section
of the decision, for any loss of earnings and other ben-
efits suffered as a result of the discrimination against
them.
(b) Remove from the Respondents’ files any ref-
erence to the unlawful discharges of Estrada, Sapia,
and Martinez and the unlawful suspension of Godash,
and notify them in writing that this has been done and
that the discharges and suspension will not be used
against them in any way.
(c) Withdraw and withhold all recognition from Re-
spondent Union Local 143 as the representative of the
employees employed by Respondent Employers, unless
and until the labor organization has been certified by
the Board as the exclusive representative of any such
employees.
(d) Recognize and, on request, bargain with Service
Employees International Union, Local 32B-32J as the
exclusive representative of all the employees in the
unit described above with respect to rates of pay,
wages, hours, and other terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
(e) On request by Local 32B-32J, reinstate the terms
and conditions set forth in the January 1, 1990, to De-
cember 31, 1992 collective-bargaining agreement with
that union, and make whole any unit employees and
864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 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.’’
8 See fn. 7, supra.
fringe benefit funds for any losses suffered as the re-
sult of the Respondent Employers’ failure to adhere to
and apply the provisions of that agreement to all unit
employees. Any make whole relief shall be provided
as set forth in the amended remedy of the Board’s de-
cision.
(f) Jointly and severally with Respondent Union
Local 143, reimburse past and present employees, with
interest, for all dues and fees withheld from their pay
pursuant to the collective-bargaining agreement exe-
cuted on September 13, 1991.
(g) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its New York City location copies of the
attached notice marked ‘‘Appendix A.’’7 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(i) Post at the same places, and under the same con-
ditions as in the preceding subparagraph, signed copies
of Respondent Union Local 143’s notice to employees
marked ‘‘Appendix B.’’
(j) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
B. Respondent Production and Service Employees
International Union, Local 143 Ind., New York, New
York, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Accepting recognition from Respondent Employ-
ers, and executing and giving effect to a collective-bar-
gaining agreement with them at a time when Respond-
ent Union does not represent an uncoerced majority of
employees in an appropriate unit or when another
union is the recognized exclusive bargaining represent-
ative of bargaining unit employees within the meaning
of Section 9(a) of the Act.
(b) Acting as the exclusive collective-bargaining
representative of the employees employed by Respond-
ent Employers, unless and until Respondent Union has
been certified by the Board as the exclusive bargaining
representative of such employees in an appropriate
unit.
(c) Giving effect to the September 13, 1991 collec-
tive-bargaining agreement executed by the Respond-
ents, and any modifications or current extensions there-
of.
(d) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Respondent Employers
reimburse the employees, with interest, for all dues and
fees withheld from their pay pursuant to the collective-
bargaining agreement executed on September 13, 1991.
(b) Post at its business office and meeting hall cop-
ies of the attached notice marked ‘‘Appendix B.’’8
Copies of the notice, on forms provided by the Re-
gional Director for Region 2, after being signed by the
Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(c) Furnish the Regional Director for Region 2
signed copies of the notice, in the number designated
by the Regional Director, for posting by Respondent
Employers at places where they customarily post no-
tices to employees.
(d) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT discharge or suspend our employees
because of their protected, concerted activities.
WE WILL NOT recognize or bargain with Production
and Service Employees International Union, Local 143
Ind. as the exclusive collective-bargaining representa-
tive of our employees, unless and until Local 143 has
been certified by the Board as the exclusive bargaining
representative of any such employees in an appropriate
bargaining unit.
865CITYWIDE SERVICE CORP.
WE WILL NOT give effect to the September 13, 1991
collective-bargaining agreement executed with Local
143 with respect to the employees employed by Hud-
son, or to any modifications or current extensions of
that agreement.
WE WILL NOT recognize and bargain with Local 143
or any other labor organization at a time when such
labor organization does not represent an uncoerced ma-
jority of the employees in the unit as to which recogni-
tion is extended, or when another union is the recog-
nized exclusive bargaining representative of that bar-
gaining unit within the meaning of Section 9(a) of the
Act.
WE WILL NOT refuse to bargain collectively concern-
ing rates of pay, wages, hours, and other terms and
conditions of employment with Local 32B-32J, Service
Employees International Union, AFL–CIO as the ex-
clusive bargaining representative of our employees in
the following appropriate unit:
All full-time and regular part-time service em-
ployees employed by the Citywide Service Corp.
and its alter ego Hudson Service Corp. in any fa-
cility including residential buildings in New York,
Nassau, and Suffolk counties, and New Jersey.
WE WILL NOT fail to abide by the terms of a collec-
tive-bargaining agreement with Local 32B-32J for em-
ployees in the appropriate unit.
WE WILL NOT ask employees to sign authorization
cards on behalf of Local 143.
WE WILL NOT offer our employees benefits, includ-
ing paid vacation, sick days, holidays, and a guarantee
of work, in exchange for their abandonment of griev-
ances with Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO.
WE WILL NOT threaten our employees with dis-
charge, and with continued harassment, if they do not
abandon their grievances with Local 32B-32J, and if
they do not sign a card for Local 143.
WE WILL NOT threaten to refuse to give an em-
ployee a favorable reference because of the employee’s
union activities.
WE WILL NOT threaten to reduce an employee’s
hours of work because the employee appeared in state
court in behalf of Local 32B-32J.
WE WILL NOT interrogate our employees concerning
their union interest, activities, or membership.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Sandra Estrada, Estella Sapia, and
Fernando Martinez immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed, and WE WILL make them and Patricia
Godash whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
them.
WE WILL remove from our files any reference to the
unlawful discharges of Estrada, Sapia, and Martinez
and the unlawful suspension of Godash, and notify
them in writing that this has been done and that the
discharges and suspension will not be used against
them in any way.
WE WILL withdraw and withhold all recognition
from Local 143 as the representative of our employees,
unless and until that labor organization has been cer-
tified by the Board as the exclusive representative of
any such employees.
WE WILL recognize and, on request, bargain with
Local 32B-32J as the exclusive representative of all the
employees in the unit described above with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding is
reached, WE WILL embody the understanding in a
signed agreement.
WE WILL, on request by Local 32B-32J, reinstate the
terms and conditions set forth in our January 1, 1990,
to December 31, 1992 collective-bargaining agreement
with that Union, and WE WILL make whole any unit
employees and fringe benefit funds for any losses suf-
fered as the result of our failure to adhere to and apply
the provisions of that agreement to all unit employees.
WE WILL jointly and severally with Local 143 reim-
burse past and present employees, with interest, for all
dues and fees withheld from their pay pursuant to the
collective-bargaining agreement executed on Septem-
ber 13, 1991.
CITYWIDE SERVICE CORP. AND ITS
ALTER EGO HUDSON SERVICE CORP.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT accept recognition from Citywide
Service Corp., and its alter ego Hudson Service Corp.,
and execute and give effect to a collective-bargaining
agreement with them at a time when we do not rep-
resent an uncoerced majority of employees in an ap-
propriate unit or when another union is the recognized
exclusive bargaining representative, within the meaning
of Section 9(a) of the Act, of bargaining unit employ-
ees.
WE WILL NOT act as the exclusive collective-bar-
gaining representative of the employees employed by
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The specifics are as follows: Sandra Estrada (Estrada) filed an
original charge and an amended charge in Case 2–CA–25016 against
Citywide on April 2, 1991, and March 27, 1992, respectively. Estella
Sapia (Sapia) filed an original charge and an amended charge in
Case 2–CA–25033, against Citywide on April 9, 1991, and March
27, 1992, respectively. Patricia Godash (Godash) filed an original
and an amended charge in Case 2–CA–25057 against Citywide on
April 22, 1991, and April 7, 1992, respectively. Local 32B-32J,
Service Employees International Union, AFL–CIO (Local 32B) filed
an original and amended charges in Case 2–CA–25331 against Hud-
son on October 3, 1991, April 10, 1992, and January 21, 1993, re-
spectively. Local 32B filed a charge in Case 2–CA–25434 against
Hudson on November 21, 1991. Local 32B filed a charge in Case
2–CB–14082 against Local 143 on February 28, 1992.
The original consolidated complaint was issued on June 30, 1992.
Orders amending consolidated complaint, and further amending con-
solidated complaint were issued on January 6 and February 19,
1993, respectively.
2 The voluminous record of a New York State Supreme Court pro-
ceeding was received in evidence at the Board hearing. That matter,
Citywide Service Corp., and its alter ego Hudson Serv-
ice Corp. unless and until the Board certifies us as the
exclusive bargaining representative of such employees
in an appropriate unit.
WE WILL NOT give effect to our September 13, 1991
collective-bargaining agreement with Hudson Service
Corp., or to any modifications or current extensions of
that agreement.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL, jointly and severally with Citywide Serv-
ice Corp., and its alter ego Hudson Service Corp. reim-
burse the employees, with interest, for all dues and
fees withheld from their pay pursuant to the collective-
bargaining agreement executed on September 13, 1991.
PRODUCTION AND SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 143
IND.
Leah Z. Jaffe and David Pollack, Esqs., for the General
Counsel.
Richard A. Medina, Esq. and Barry Richman, of New York,
New York, for Respondent Citywide.
Lloyd Somer, Esq., of New York, New York, for Respondent
Hudson.
Ira A. Sturm, Ronald Goldman, and Paul Galligan, Esqs.
(Manning, Raab, Dealy & Sturm, Esqs.), of New York,
New York, for Local 32B-32J.
Dominick Parisi, for Local 143.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Pursuant to
certain charges and amended charges, an amended consoli-
dated complaint was issued against Citywide Service Corp.
(Citywide) and its alter ego Hudson Service Corp. (Hudson)
and against Production and Service Employees International
Union, Local 143 (Local 143).1
The amended complaint alleges, essentially, that Citywide
(a) temporarily suspended Patricia Godash without pay be-
cause she asserted her right to file a grievance under a col-
lective-bargaining agreement, (b) discharged Sandra Estrada
and Estella Sapia because they asserted their right to join
Local 32B, (c) threatened an employee with continued har-
assment unless the employee quit or withdrew a grievance,
(d) offered employees preferences in terms and conditions of
employment if they would forgo certain rights they had ac-
crued under collective-bargaining agreements, (e) threatened
employees with discharge if they refused to forgo certain
rights they accrued under the collective-bargaining agree-
ment, and threatened that employees had been or were going
to be discharged, (f) impliedly threatened employees by tell-
ing them that other employees, who had refused to forgo cer-
tain rights they accrued under the agreement, had been or
were going to be discharged, (g) threatened an employee
with discharge if that employee went to Local 32B, and told
that employee that other employees had lost their jobs be-
cause they went to Local 32B, (h) offered employees pref-
erence in terms and conditions of employment if they agreed
to forgo certain rights they accrued under the collective-bar-
gaining agreement, (i) threatened employees with immediate
discharge if they refused to renounce rights which they ac-
crued under the collective-bargaining agreement, and (j)
threatened to blackball employees by providing them with
poor references.
The amended complaint further alleges that Hudson (a) in-
terrogated an employee about his contacts with Local 32B,
and told employees that if they had gone to Local 32B they
could no longer work for Hudson, (b) threatened employees
with unspecified reprisals and diminished hours in order to
force them to quit, and (c) discharged Fernando Martinez.
The complaint also alleges that Hudson unlawfully assisted
Local 143 by (a) informing employees of, and inviting them
to a meeting with Local 143 on Hudson’s premises, and (b)
distributing authorization cards on behalf of Local 143 to its
employees.
In addition, the complaint alleges that Hudson unlawfully
recognized Respondent Local 143 and executed and enforced
a collective-bargaining agreement containing a union-security
provision with it at a time when it was not the lawfully rec-
ognized representative of Hudson’s employees.
Finally, the complaint alleges that Hudson has operated as
the alter ego and disguised continuance of Citywide, and that
the appropriate unit consists of all employees of both em-
ployers. It is alleged that since Citywide was bound to col-
lective-bargaining agreements with Local 32B, Hudson, as its
alter ego, was similarly bound, and that by failing and refus-
ing to be bound by such agreements, Hudson has unlawfully
refused to bargain with Local 32B.
Respondents’ answers to the complaint denied the material
allegations thereof. Certain affirmative defenses were as-
serted which will be addressed, infra.
A hearing was held before me in Brooklyn, New York, on
March 22 through 26 and 29, 1993.
On the evidence presented in this proceeding, and my ob-
servation of the demeanor of the witnesses, and after consid-
eration of the briefs filed by the General Counsel, Local 32B,
and the brief of Respondent Hudson which was joined in by
Respondent Citywide, I make the following2
867CITYWIDE SERVICE CORP.
brought by Hudson to stay an arbitration sought by Local 32B, in-
volved the question of the alter ego status of Hudson.
3 Citywide denied knowledge of the labor organization status of
Local 32B. Its denial is without merit, especially in view of its ad-
mitted collective-bargaining relationship with that Union. Citywide
also denied knowledge of the labor organization status of Local 143.
The facts establish that Local 143 is a labor organization. It bargains
with employers in behalf of employees, and has collective-bargaining
agreements with employers for those employees. It has also brought
grievances in behalf of employees.
4 The content of this conversation is a composite of the testimony
of the four employees who were present: Estrada, Edgar Garcia,
Sapia, and Hugo Tzorin.
FINDINGS OF FACT
I. JURISDICTION
Citywide, a New York corporation, had until October
1991, been engaged in providing commercial cleaning and
maintenance services. During the year ending June 4, 1991,
Citywide provided services valued in excess of $50,000 to
various enterprises located within New York State, which en-
terprises met a direct standard of the Board for the assertion
of jurisdiction.
Hudson, a New York corporation, incorporated in 1991,
has been engaged in providing commercial cleaning and
maintenance services. During the calendar year 1992, Hud-
son provided services valued in excess of $50,000 to various
enterprises located within New York State, which enterprises
met a direct standard of the Board for the assertion of juris-
diction.
Citywide and Hudson admit the above facts. Based on the
above, I find and conclude that they are employers engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
I also find that Local 32B and Local 143 are labor organi-
zations within the meaning of Section 2(5) of the Act.3
II. THE ALLEGED UNFAIR LABOR PRACTICES
Citywide, a cleaning contractor, was a party, through the
Service Employers Association, to two collective-bargaining
agreements with Local 32B, both of which expired on De-
cember 31, 1992. Pursuant to those contracts, membership in
Local 32B was required after 30 days, and Citywide was re-
quired to pay union wages of $11.97 per hour, and benefits
such as paid holidays and vacations. In addition, the agree-
ments provide for contributions by the employer to pension
and welfare funds which amounted to about $5000 per em-
ployee per year.
Citywide employed between 100 and 120 employees, some
of whom received the union wages and benefits set forth
above. It also employed, however, certain employees who
performed unit work, but who were not reported to Local
32B as having been employed more than 30 days. They re-
ceived wages of about $7 to $8 per hour, enjoyed no bene-
fits, and had no contributions made in their behalf to the
pension and welfare funds.
Eventually, the nonunion employees became aware that
certain of their coworkers were receiving union wages and
benefits. Estrada and Sapia were two such employees.
A. The Termination of Estrada and Sapia
1. The testimony of the employees
Estrada became employed by Citywide in June 1990,
cleaning offices. She was not a member of Local 32B, and
received wages of $8 per hour.
In about August 1990, she learned that Local 32B rep-
resented her fellow workers and asked operations manager
and admitted supervisor, Ernesto Cortez, if she could join
that Union. Cortez told her that Mark Giacoia, Citywide’s
vice president, would have to decide. She inquired again of
Cortez in November, and was told that Giacoia said that she
had to wait. Cortez also told her that Giacoia advised him
to ‘‘play dumb,’’ and said that the workers were stupid and
ignorant.
In January 1991, Estrada’s wage was raised to $11.40 per
hour, but she did not become a union member, and received
no benefits.
In about March 1991, Estrada and other workers went to
Local 32B and spoke with Union Representative Barbara
Paige.4 Paige was told that the employees worked for City-
wide and wanted to join Local 32B. Paige phoned Barry
Richman, Citywide’s president, and told him that certain
named employees were present and that he had a ‘‘very seri-
ous problem.’’ She told the employees that they had to pay
a fee of $300 which represented back dues, in order to be-
come members of Local 32B. They were given an appoint-
ment for April 4 to meet with Paige.
Thereafter, on March 27, Leonal Rivas, an admitted super-
visor of Citywide, told Estrada that Giacoia wanted to see
her. At that meeting, at which Rivas was present, Giacoia
asked her what she wanted. Estrada replied that she wanted
to become a member of Local 32B and receive benefits.
Giacoia answered that that would be no problem, and asked
her to return to the Union and become a member as of the
current date. He also asked her to withdraw her complaint
about Citywide.
The next day, Estrada had another conversation with
Giacoia. Other employees were present. Giacoia told her that
if she withdrew her complaint with Local 32B, she would re-
ceive 2 weeks’ paid vacation. Estrada asked about accumu-
lated sick days, and was told that she would be paid for sick
days earned in 1991, and that if she withdrew her complaint
her job would be guaranteed for a period of 6 months.
Estrada answered that she would think about it.
One or two days passed, and on March 29 or 30, she was
told by Giacoia, in the presence of employees Garcia and
Tzorin, and Supervisor Rivas, that they would all receive 2
weeks’ vacation; a job guarantee of 6 months; and sick days,
but that they should go to Local 32B that day and withdraw
their case. Giacoia apparently wrote a list of the items he
was guaranteeing, and asked her to sign it. She did not do
so.
Estrada explained that she did not go to Local 32B be-
cause Giacoia was only offering certain benefits as of the
current date. She believed that since she had been employed
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for 10 months, she was entitled to benefits and union mem-
bership from the time that she became eligible for such
membership and benefits.
Estrada testified that that evening, Samuel Rivera,
Citywide’s admitted supervisor, asked whether she had with-
drawn her case at Local 32B that day. She said that she had
not. Rivera asked her to do so tomorrow, so that he would
be able to call Giacoia and tell him to ‘‘sleep peacefully.’’
Estrada replied that she would not go to the Union, where-
upon Rivera said that if she did not go to Local 32B she
would be fired.
The following, day, Rivas called Estrada and told her that
she no longer worked for Citywide because there was no
more work. On April 1, Rivas told Estrada that the real rea-
son for her discharge was that she did not sign the paper
proffered by Giacoia.
Estella Sapia began work for Citywide in March 1990,
cleaning offices, and earning $8 per hour.
In about July 1990, she became aware that certain of her
coworkers were members of Local 32B, and she asked Su-
pervisor Cortez about this. Cortez told her that since she was
a route employee who did not have a permanent assignment,
she was not eligible for union membership. In September
1990, Sapia again asked Cortez about union membership. He
said he would speak to Giacoia. Cortez reported to her that
Giacoia said that the workers did not need to become union
members because they had jobs, and in any event, were igno-
rant and stupid.
In January 1991, Sapia’s wages increased to $11.40, but
she did not receive union membership or any benefits. In
March 1991, she went to Local 32B with Estrada, as set
forth above.
Thereafter, on March 27 or 28, she was asked by Giacoia
at a meeting at which Rivas was present, why she wanted
to become a union member. She replied that she has been
working long enough for Citywide to become a union mem-
ber, and that she wanted to enjoy the same benefits as her
coworkers. Giacoia told her to tell Union Agent Paige that
she wanted to be a union member as of the date she went
to the Union. He cautioned her not to apply for retroactive
benefits since she would have to pay $300 to the Union for
retroactive dues. Giacoia further promised a $780 payment;
2 weeks’ paid vacation; paid holidays; and a 6-month guar-
antee of work.
Sapia did not return to Local 32B because she did not
want to lose her retroactive benefits.
On about the next day, Rivera asked her if she had signed
the union papers. She said she had not. Rivera replied that
Giacoia was very upset with her because she had promised
to go to the Union. He also told her that Estrada had been
fired for refusing to sign the union papers. He showed her
a letter, which stated in part that she agreed to accept 2
weeks’ paid vacation, $700, and a job guarantee of 6 months.
She refused to sign it, and asked to take it home. Rivera re-
fused to give it to her, telling her that if she did not sign
it he was to tear it up, which he did.
About 1 week later, on April 8, Rivera told Estrada to re-
port to Citywide’s office. Present were Giacoia, Rivas, and
employee Tzorin. Richman spoke to them by phone, through
a speakerphone. Richman denied this conversation, but Sapia
testified that Rivas said that Richman could not attend the
meeting, but would speak to those assembled by
speakerphone.
Richman said that Sapia should go to the Union to sign
the papers, and that following that he would give her a
check, and another check the next week. Sapia replied that
she would not go to Local 32B because certain things were
not clear to her. She asked for 1 more day to think about
it. Richman refused to give her any more time, and insisted
that she sign the papers, saying that if she did not sign, she
could consider herself as being ‘‘out of the company,’’ and
should return her keys. Sapia begged for a chance to con-
sider the offer and continue working for Citywide, but
Richman demanded that she sign at that time or return her
keys. Sapia refused, and gave her keys to the supervisors.
That was her last day of work.
The conversation then turned to Tzorin, who also refused
to sign. Richman said that in June or July, when Citywide’s
contract with the Lighthouse was canceled, he would be the
first person to leave, and that he would not give him a favor-
able letter of recommendation. Tzorin said that that did not
matter as he was a good worker. Richman then told Tzorin
that he would be working only until June.
Edgar Garcia worked for Citywide since December 1989,
as a cleaner, receiving $8 per hour, with no benefits.
From October 1990, Garcia asked Cortez about joining
Local 32B. Cortez said that business was slow and that he
could not join at that time. In December 1990, Cortez told
him that he could become a union member in January 1991,
but Cortez left the Company before then. Garcia then asked
Rivas about union membership. Rivas told him to speak to
Union Agent Paige. He accompanied certain employees to
the Union, as set forth above.
Garcia stated that he went to Local 32B twice. During the
evening after the second meeting, he was spoken to by Ri-
vera. Rivera told him that Giacoia was offering 2 weeks’ va-
cation and a 6-month job guarantee. Garcia was asked to tell
Paige that he had no problems with Citywide.
The following day, Giacoia made those promises himself
to Garcia. Garcia replied that the employees wanted to be-
come union members as of the date of their hire, not as of
the current date.
The next day, Rivera asked Garcia to sign a paper guaran-
teeing 6 months’ work. Garcia refused to sign. Rivera told
him that Citywide would lose certain customers in June
1991, and that he, among others, would be laid off. Rivera
urged him to accept the offer of 2 weeks’ pay and the job
guarantee, noting that Estrada would be discharged shortly.
In early April 1991, Richman asked Garcia why he did not
listen to Giacoia or Rivera.
Garcia received a letter of termination on June 12, 1991.
It stated, inter alia, as follows:
Due to the recent loss of work and the need to consoli-
date jobs; we are forced to assign your work to senior
union members.
Garcia’s testimony is not alleged as a violation, and I ac-
cordingly make no findings concerning it.
2. The testimony of the supervisors
Supervisor Rivas testified that, in January 1991, he was
asked by Estrada, Sapia, and Garcia whether he could put
869CITYWIDE SERVICE CORP.
them into Local 32B. Rivas inquired of Giacoia, who told
him that they would have to wait. Following a raise in their
wages, Rivas told Estrada and Sapia that a salary reduction
might be necessary. They asked how they could avoid that
action, and Rivas suggested that if they became union mem-
bers, their salaries could not be reduced. They then went to
Local 32B, as set forth above.
Rivas further testified that on March 31, 1991, he trans-
lated for Giacoia during his meeting with Estrada, Sapia, and
Edgar Garcia. Rivas stated that Giacoia asked the employees
why they went to Local 32B. They replied that they wanted
to belong to that union. Giacoia answered that that was no
problem, and asked them to tell Union Agent Paige that
Citywide would take care of everything.
Rivas testified that he was present at the speakerphone
meeting, at which he heard Richman ask Sapia and the oth-
ers to tell the Union that everything was all right. They re-
fused, and Richman threatened them with discharge.
At another meeting, Rivas heard Giacoia offer Garcia
higher wages and a guarantee of 6 months’ work.
Toward the end of the their employment, Estrada and Gar-
cia were given applications by Citywide for membership in
Local 32B. Rivas asked them to leave blank their date of
hire at Citywide. After the employees completed the applica-
tions, bookkeeper Lila Charney and Giacoia inserted the date
of hire as 1 month before the current date. Giacoia told
Rivas to tell the employees that this action benefited them
because they would not have to pay the union retroactive
dues from their actual date of eligibility for membership in
the Union. When Rivas told the employees this, they said
they wanted to become union members as of their date of
hire, because they were entitled to medical benefits, holiday
pay, and sick pay.
Rivas also testified that Estrada and Sapia were discharged
because they went to Local 32B, and because they sought
membership in that Union. According to Rivas, the decision
was made by Richman 1 or 2 days before Rivas actually ter-
minated them.
Citywide President Barry Richman testified that he did not
recall any speakerphone conversation with employees in
which a grievance concerning Local 32B was discussed. Nor
did he recollect threatening anyone.
Vice President Giacoia and Rivera testified in this pro-
ceeding, but did not specifically testify concerning the state-
ments attributed to them.
Analysis and Discussion
The testimony establishes that in March 1991, Estrada and
Sapia engaged in the protected, concerted activity of obtain-
ing membership in Local 32B, and in insisting on their right
to become members as of the proper date. Giacoia was op-
posed to this, as demonstrated by his offer, in late March,
of 2 weeks’ paid vacation and sick days, and a 6-month
guarantee of work. Giacoia asked them to withdraw their
complaints with Local 32B. They refused to do so. Estrada
credibly testified that Supervisor Rivera threatened her with
discharge if she did not withdraw her grievance. The follow-
ing day she was discharged, the official reason given as lack
of work, but Supervisor Rivas told her that the real reason
was her refusal to agree to the benefits offered by Giacoia
in return for her withdrawal of her grievance at Local 32B.
Sapia was similarly threatened with discharge by Giacoia
if she did not withdraw her grievance, and if she did not ac-
cept the offer of benefits by Giacoia. In addition, on April
8, Richman demanded that she withdraw her case at Local
32B, and accept Citywide’s offer. She refused and was im-
mediately discharged.
Supervisor Rivas also testified that Estrada and Sapia were
discharged because they sought membership in Local 32B.
I note that there was testimony that Citywide encouraged
Estrada and Sapia to become members of Local 32B. It did
so, however, only after the employees made known their de-
sire to join that Union, and was done with an intent to de-
prive them of full membership, from the time of their eligi-
bility, by having them join as of the current date.
Based on the above, I find that the General Counsel has
established a prima facie case that the union activities of
Estrada and Sapia, in attempting to secure their rights under
the Local 32B contract, were motivating factors in their dis-
charge by Citywide. Wright Line, 251 NLRB 1083 (1980).
Having found a prima facie case for unlawful motivation
in the discharges of Estrada and Sapia, the burden shifts to
Citywide to prove that it would have discharged them even
in the absence of their union activities. Wright Line, supra.
I find that Citywide has not carried its burden. The only de-
fense which was raised concerning Estrada was her testi-
mony that she was told that the ‘‘official’’ reason for her dis-
charge was that there was no more work. This explanation
was given only 1 day after her confrontation with Rivera,
who threatened her with discharge if she did not withdraw
her grievance. No defense was asserted as to Sapia’s dis-
charge.
I accordingly find and conclude that the discharge of
Estrada and Sapia violated Section 8(a)(3) and (1) of the Act.
B. The Suspension of Godash
Patricia Godash began work for Citywide in November
1987. She was a member of Local 32B and had a regular
schedule.
In about March 1991, Supervisor Rivera told her that he
had received complaints that she was not cleaning thor-
oughly. She worked 3 hours that evening cleaning the area,
but received pay for only 1 hour and 45 minutes work. A
couple of days later, on March 22, Rivera made the same
complaint, and this time she worked 6 hours prior to
Rivera’s inspection, and was again paid for only 1 hour and
45 minutes. Rivera was again not satisfied with the work she
had done, and told her to clean it again.
Godash then filed a grievance with Local 32B. Union
Agent Paige said that she would speak to Richman about the
matter and about a pending matter with Estrada.
Godash complained to Giacoia that she should have been
paid for the additional hours she worked. Giacoia apologized
for the problems with the two companies, and asked her
what she was ‘‘going to do about the union.’’ She replied
that she was letting the grievance stand and would await an
upcoming meeting between Paige and Richman.
Godash worked on April 5, her last day before she took
a vacation. On such occasions in the past, it was customary
for Citywide to assign a coworker to work the last night with
the employee scheduled for vacation, so that the routine
could be explained, and so that the keys to the buildings
could be given to the substitute. When Godash inquired of
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rivas, he told her that no one would be assigned to her that
night. He also requested that she call Rivera and give the
keys to him.
That evening, she was told by Andre, a Citywide em-
ployee, that Rivera asked him to obtain the keys from
Godash. She refused since she had more areas to clean. She
called Rivera and explained that to him. He was satisfied
with her reply, and told her to call him when she was fin-
ished. At about 2 a.m. she called Rivera several times but
he did not answer the call. She called Rivera again at 5 a.m.
and again received no answer. She spoke to Supervisor Mike,
told him that she could not reach Rivera, and was told that
Mike did not know where Rivera was.
On April 8, Godash phoned Rivas, who yelled at her for
not turning in her keys. She explained that she could not
reach Rivera. Rivas told her that Rivera did not receive any
of her calls, and that Mike denied speaking to her. Rivas in-
sisted that she return the keys that day, but Godash refused
because she had to remain home to await a delivery. She told
Rivas that she had given Rivera copies of the keys in the
past. Rivas insisted that he needed Godash’s keys. Godash
brought the keys in the following day.
Godash was informed that she was suspended for 3 days.
The suspension letter stated that Godash did not call, as in-
structed, so that Rivera could pick up her keys, and that
Citywide was unable to obtain entry to three companies as
a result of her actions.
On her first night of work after her suspension, Godash
was given her usual keyring containing keys to the compa-
nies she was to clean. On arriving at one company, Godash
found the elevator to one of the buildings she was supposed
to clean locked. The key to the elevator is ordinarily on her
keyring, but this time it was missing. She spoke to Super-
visor Nelson Hernandez, and complained that ‘‘games’’ were
being played on her. She threatened that she would notify
Local 32B. Hernandez said, ‘‘[O]kay. Godash then left that
building and went to her next assignment.
Immediately after, Rivera called and said that he and Her-
nandez were just at the company she called from and found
the elevator unlocked. Rivera added that she was playing
games with them, and that they would not leave her alone
until she either dropped her grievance or quit her employ-
ment.
Godash attempted thereafter, without success, to obtain a
key to the elevator from Citywide. She needed the key be-
cause she cleaned this company’s premises on a daily basis.
On June 12, 1991, Godash received a letter notifying her
of her discharge, effective June 28, by Citywide. The letter
stated that ‘‘due to the recent loss of work and the need to
consolidate jobs, we are forced to assign your work to senior
union members.’’ Godash’s discharge has not been alleged as
an unfair labor practice.
I find that the General Counsel has made a prima facie
showing that Godash’s protected activity in filing a grievance
protesting her failure to be paid for extra hours she worked
was a motivating cause for her suspension. Wright Line,
supra.
Thus, in late March, Giacoia knew that Godash had filed
a grievance concerning that matter, asked her what she in-
tended to do about it, and was told that she would pursue
it. Her suspension occurred only about 1 week later. It is
likely that Citywide bore animus toward Godash because of
her filing the grievance. I have found that coworkers Estrada
and Sapia were discharged, in part, for their failure to with-
draw grievances filed with Local 32B.
Significantly, immediately on her return to work from her
3-day suspension, Godash threatened to inform Local 32B of
the harassment she received following her return, and was
told by Supervisor Rivera that she would not be left alone
until she dropped her grievance or quit. This clearly indicates
that Citywide bore animus toward her concerning her filing
the grievance, and thus relates back to the reason for her sus-
pension. I accordingly find that the General Counsel has
made a prima facie showing that her suspension was moti-
vated by her activities in filing a grievance.
In its defense, Citywide relies on its letter of suspension
which states that Godash did not call Rivera so that her keys
could be picked up, and that Citywide was unable to obtain
entry to three companies due to her actions.
It appears that Citywide deviated from its practice of pro-
viding a substitute on the day prior to her vacation. If such
practice was followed, Godash would have given her keys to
the substitute without incident. Her testimony that she
phoned Rivera, pursuant to his instruction, when she finished
her work, in order to turn in her keys, is credited in view
of Rivera’s failure to testify. In addition, Rivera was appar-
ently aware of Godash’s schedule and could have met
Godash at any of the locations she was assigned to clean and
obtained the keys then. Rivera was apparently satisfied with
her refusal to give the keys to Andre because she had more
areas to clean. Moreover, Godash gave uncontradicted testi-
mony that Rivera had copies of all her keys.
I accordingly find that Citywide has not met its burden of
proving that it would have suspended Godash in the absence
of her union activities. Wright Line, supra.
C. The Alter Ego Issue
The complaint alleges that Citywide and Hudson are a sin-
gle employer, and that Hudson has operated as a disguised
continuance of Citywide, and an alter ego of Citywide. Spe-
cifically, the complaint alleges that the two companies have
common officers, ownership, management, and supervision;
a common labor policy; provided services for and made sales
and purchases to and for each other; and interchanged per-
sonnel with each other.
The General Counsel alleges that the facts establish that,
although Citywide appeared to have closed, in fact it contin-
ued its operation through Hudson. The motivation for this
subterfuge is alleged to be Citywide’s desire to avoid its ob-
ligation to the Local 32B funds, to which it owed substantial
amounts of money, and a wish to conduct its business more
profitably by operating a nonunion company, or operating
with a more acceptable union, thereby avoiding its obligation
to continue honoring its collective-bargaining agreement with
Local 32B and the wages and benefits provided therein.
Respondent Employers deny these allegations, asserting
that Citywide completely closed its business due to financial
considerations, and that Hudson was formed and operated as
a totally independent company with no relation to Richman
or Citywide.
An examination of the circumstances surrounding the clo-
sure of Citywide and the opening of Hudson is necessary to
resolve this issue.
871CITYWIDE SERVICE CORP.
5 Richman testified that if he sought to capitalize Hudson himself
he would not have utilized his wife to make the loan. He did, how-
ever, attempt to interest an outsider, Savoy, in making an investment
in Hudson, but Savoy did not do so. Giacoia’s attempt to avoid mak-
ing a connection between Miller and Richman was painfully obvious
in a deposition he gave in the state court proceeding. He identified
her, at first, as ‘‘an acquaintance, a friend’’ he had known for 4
years. He stated that he met her through a ‘‘business acquaintance’’
and then socially, and then they became friends. He further stated
that he did not know the business acquaintance through whom he
met Miller. He then stated that she was the office manager of a cli-
ent Citywide had been servicing. It was only when counsel for Local
32B asked if she had ‘‘any connection at all with Richman’’ that
Giacoia recalled that she was married to him. Interestingly, at the
state court hearing, he stated that he did not really know Miller so-
cially, did not know whether she was employed at that time, but then
said that she was employed as a nursery school teacher, and possibly
a clerical. At the Board hearing, Giacoia testified that he met Miller
through Richman.
1. The closure of Citywide
Citywide had been in operation from about 1984 through
October 1991. Its president and sole shareholder was Barry
Richman. Richman testified that Citywide enjoyed a period
of rapid growth through 1989. Due to the effects of the re-
cession, however, it experienced, in late 1989, losses of
major accounts and a rise in bad debts. These factors resulted
in a loss, in 1990 and early 1991, of about $1.5 million out
of a total of $4 million in gross sales.
Richman also attributed Citywide’s losses to smaller ac-
counts taken from him by nonunion shops which offered
cleaning services at a lower price than Citywide.
Although Richman attempted to stem these losses by re-
ducing overhead, he found that he could not cut enough
overhead expenses to make up for the reduced cash flow ex-
perienced by Citywide.
Citywide was also indebted to the Local 32B funds in an
amount in excess of $300,000. Richman stated that he first
became aware of this indebtedness in late February 1991,
when he was served with a legal action by the funds. On his
review of the matter, he learned that Citywide bookkeeper
Lila Charney had failed to make payments to the funds and
‘‘hid’’ this fact from Richman. He attributed Charney’s ac-
tions, who had been a ‘‘meticulous’’ worker for nearly 9
years, to ‘‘insanity.’’ Richman was unable to obtain any re-
duction in the amount owed to the funds nor credit for inter-
est and penalties. He, however, made a payment of $30,000
to the funds. Although Richman became aware of the ‘‘uni-
lateral’’ failure to make payments to the funds in February,
he decided to cease making any further payments, for
amounts owed to the funds through the time that Citywide
allegedly ceased operating in October 1991.
According to Richman, as his business losses mounted,
and the indebtedness to the Local 32B funds became impos-
sible to resolve, he decided, in February or March 1991, that
Citywide would close.
At that time, he told Mark Giacoia, Citywide’s vice presi-
dent, that Citywide would be closing by the end of 1991, and
that he should look out for his own interests. Giacoia told
Richman that he wanted to start his own business.
In May or June 1991, Giacoia told Richman that he want-
ed to open a cleaning business, and asked whether he could
take some of Citywide’s accounts. Richman replied that he
did not care since Citywide was going out of business, and
he was leaving the cleaning industry. Richman explained his
failure to sell his business or his accounts to Giacoia on the
ground that neither Citywide, nor its accounts were sellable
because of the lawsuits pending against his Company. Al-
though Giacoia had signed a restrictive covenant, agreeing
not to solicit any of Citywide’s accounts, Richman waived
that covenant.
Richman testified that even though Citywide failed, he be-
lieved that Giacoia’s business would succeed because the
new company had a different and more profitable plan: it
would be nonunion, or have a non-Local 32B union, and
therefore would have a lower price and expense structure. In-
deed, Richman predicted that if Giacoia’s new company had
a contract with Local 32B, it would ‘‘run into the same prob-
lems’’ that Citywide ran into.
2. The opening of Hudson
a. Hudson’s formation and financing
Hudson was formed in May 1991, by Paul Sessler, an at-
torney, who was at that time the attorney and accountant for
Citywide. Giacoia is the sole shareholder of Hudson. Camille
Savoy is named in the certificate of incorporation as a direc-
tor of Hudson. Giacoia testified that he did not know who
Savoy was. Richman testified, however, that Savoy was an
art dealer and friend of Richman and from whom Richman
purchased sculpture. Savoy expressed an interest to Richman
in investing in a business. Richman suggested that Savoy
contact Sessler. Savoy did not, however, invest any money
in Hudson.
Giacoia testified that after he unsuccessfully attempted to
obtain startup money for Hudson from friends and relatives,
he asked Richman if he could lend him the money. Richman
said he did not have such funds at that time. Richman testi-
fied, however, that he did not want to lend Giacoia any
money because he wanted to leave the cleaning industry. But
he suggested that his wife could make such a loan.
Richman’s wife, Kimberly Miller Richman, discussed the
loan with her husband and agreed to lend him $60,000.
Richman conceded that much of the source of the money
was from him, constituting funds that he had given her dur-
ing their marriage, and that he advised his wife to make the
loan. Richman further advised her that a promissory note
should be executed by Giacoia. No such note was prepared,
however, and the loan agreement remained oral, to be repaid,
on demand, at the rate of 9-percent interest.
Giacoia repaid the loan in full by withdrawing the funds
from Hudson, depositing them in his personal account, and
writing a personal check to Miller.5
It also appears that Richman paid Hudson’s first payroll,
which was paid to the employees in cash. Hudson began its
operations on August 5, 1991. Giacoia stated that he believed
that Hudson paid the payroll for that week from its own
funds. After reviewing the records, however, he then stated
that there were no entries in Hudson’s disbursement account
which would show such payments. He then asserted that
Richman lent him $7000 to $8000 for that payroll, which
was repaid without interest by Giacoia in small, cash pay-
ments of about $400 per month, which were delivered to
Richman’s apartment by messenger.
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Richman denied that he financed Hudson’s first week’s
payroll and denied receiving cash payments from Giacoia for
this purpose.
Hudson has a separate and different office, phone number,
and bank account than Citywide. Richman is not and has not
been a director or shareholder in Hudson.
b. Hudson hires Citywide’s employees and obtains
Citywide’s accounts
The regular, permanent, key office employees employed
by Citywide were hired by Hudson. Such persons included
bookkeeper Charney, computer operator and ‘‘girl Friday’’
Carmen Sanders, and salespersons Joseph Crowder, Lori
Kent, and Milton Rothstein. Also, supervisory personnel
were hired by Hudson to perform the same duties that they
performed at Citywide. Such individuals are Operations Man-
ager Leonal Rivas, Supervisor Sam Rivera, and Nelson Her-
nandez, who was a supervisor at Citywide, and worked as a
head porter at Hudson. The computer system, billing proce-
dures, and customer identification numbers, which were in
use at Citywide, were transferred to Hudson and used in the
same manner by that Company.
The wages and commission rates for the salespeople re-
mained the same when they became employed by Hudson.
Kent testified that, at the end of her employment with City-
wide, she was told by Richman that that Company was
‘‘going in a different direction.’’ Indeed, Citywide’s notice to
its customers stated that it was ‘‘changing direction.’’
Richman explained that he did not want to tell his customers
that Citywide was going out of business as they might seek
to avoid payment of their bills.
Leonal Rivas testified that he began work for Hudson on
October 7, 1991, and worked for 2 weeks. He was then told
by Giacoia that Richman suggested that Rivas apply for un-
employment benefits, claiming that he was laid off for lack
of work from Citywide. Rivas received such benefits for 3
weeks, during which time he remained in daily contact with
Giacoia by beeper, responding to work questions by Giacoia.
During the 3 weeks, Rivas prepared the Hudson payroll on
weekends, and he received from Giacoia a sum of money
equal to the difference between his salary and unemployment
benefits. At the end of the 3-week period, Rivas returned to
work for Hudson.
Francisco Martinez, a cleaner for Citywide, testified that
Citywide’s manager, Rivas, told him in mid-September 1991,
that Citywide was considering closing, and that Richman was
selecting the best employees to work at Hudson. Rivas added
that Martinez was one of those chosen. He began work at
Hudson in late September or early October 1991.
An interrelation between Citywide and Hudson is apparent
from the activities engaged in by employees being paid by
Citywide, yet performing services for Hudson. Thus, while
employed and paid by Citywide, the salespeople began solic-
iting their Citywide accounts for Hudson. Kent testified that
she brought about 80 percent of her Citywide customers to
Hudson through such solicitation. Her agreement not to com-
pete with Citywide was never raised by Richman or Giacoia.
Although Richman testified that he was not aware that his
salespeople were soliciting Citywide’s accounts for Hudson,
Giacoia, Citywide’s vice president and owner of Hudson,
was aware of this. In fact, Giacoia testified that Richman
wanted to help Giacoia’s new business succeed by permitting
him to solicit Citywide’s accounts, and they had an ‘‘under-
standing’’ that Citywide’s salespeople could solicit its ac-
counts for Hudson.
Giacoia testified that the Citywide salespeople were able
to obtain nearly 75 percent of Citywide’s general cleaning
and window cleaning customers for Hudson.
Notwithstanding that Richman admittedly was interested in
money-making opportunities, he received no payment for all
of Citywide’s business which Hudson obtained or for the
window cleaning accounts. In contrast, Richman did sell two
accounts to Arcade Maintenance, for which Richman re-
ceived a monthly commission of $2650 to $3700, from the
time that Citywide closed, through at least January 1993,
when Arcade lost the accounts.
Richman’s explanation for this disparity was that
Citywide’s accounts were small, route jobs which were billed
at $200 to $500 per month, which he did not believe were
salable. He did not, however, try to sell them. The accounts
which he sold to Arcade, however, were major accounts, rep-
resenting billings of $40,000 to $50,000 per month. He fur-
ther stated that the two accounts required their service to be
performed by a company having a collective-bargaining
agreement with Local 32B, which Arcade had.
Richman’s other explanation is instructive concerning his
true motive in not accepting commissions from Giacoia—a
deliberate attempt to avoid a finding of alter ego status for
Hudson. When asked by the state supreme court justice
whether it had occurred to him to ask Giacoia for a commis-
sion on the Citywide business obtained by Hudson, Richman
responded:
It occurred to me. That would have put me in jeopardy
via what we’re doing here. Because I had a contract al-
ready with 32B. If I was helping him as a successor
company then I would be guilty of what I’m sitting
here doing. My hands were tied in many respects. I
have no adversity to earning money. I don’t mean that
facetiously. Had I retained accounts like the Light-
house, I would have brought them into a larger billing.
I would have gone ahead and done that. What Mark
was doing, I would have had to sit here and tell you
I helped him move companies from one company to the
other. Therefore, I’m guilty, which that’s my reason.
Nor was Richman apparently concerned with making cer-
tain that Citywide received all of the money it was due from
its customers. Giacoia testified that $11,000 in checks due
Citywide from its last months of business were sent to Hud-
son, in the form of separate checks payable to Hudson and
to Citywide, and deposited in Hudson’s account. This was
discovered only when the bank which had foreclosed on
Citywide’s receivables inquired of Hudson as to whether it
was sent any checks due Citywide. It should be noted that
all moneys due Citywide in this respect were repaid by Hud-
son.
c. Hudson obtains equipment and supplies
from Citywide
Following his move from Citywide to Hudson, employee
Fernando Martinez testified that on the weekend of October
5, 1991, he disassembled the furniture and desks at City-
wide’s location, and moved them, with lamps and chairs, to
873CITYWIDE SERVICE CORP.
Hudson’s office. This comprised about six trips back and
forth and a total of 15 hours. That job also included moving
equipment and supplies from Citywide to Hudson, such as
vacuum cleaners, various machines, mops, and cleaning sup-
plies. Martinez testified that he used the same equipment,
such as vacuums, buckets, mops, and waxing machines, that
he had used at Citywide. He stated that Rivera instructed him
to remove stickers from the equipment bearing Citywide’s
name, and replace them with a painted ‘‘H.’’
Martinez also testified that the two vans which were
owned by Citywide were used by Hudson, and that in early
October, he put stickers containing Hudson’s name and ad-
dress on the vans. Thereafter, the vans were used in the same
way as they were used at Citywide. Official Rivas corrobo-
rated this testimony. Giacoia testified that on the formation
of Hudson, he obtained permission from Richman to ‘‘bor-
row’’ one van for 4 to 6 weeks until he could get organized.
Thereafter, he rented, and then leased, another van. Giacoia
denied that the van was used to transfer supplies from the
offices of Citywide to Hudson.
Cleaning employee Blanca Samuel who worked for City-
wide, and then for Hudson, testified that she used the same
equipment at Hudson that she had used at Citywide, includ-
ing vacuums, brooms, brushes, and mops. She also stated
that she observed that the furniture at Hudson’s office was
the same as that used prior thereto at Citywide’s office.
Admitted Hudson Supervisor Samuel Rivera testified that
the refrigerator, water cooler, file cabinets, and furniture
were moved from Citywide’s office to Hudson’s. He re-
ceived written instructions from Giacoia, some of which
were received in evidence, to transfer supplies from Citywide
to Hudson.
Leonal Rivas, operations manager at Citywide, and then at
Hudson, testified that, while employed by Citywide, he or-
dered equipment and supplies in behalf of Citywide, and then
transferred them to Hudson. There was also evidence that
supplies, located at jobsites serviced by Citywide, were taken
over by Hudson. Giacoia testified that Citywide received no
compensation for the supplies that Hudson obtained from the
jobsites. He conceded that contractors generally retrieve their
supplies from jobsites they leave. In addition, Rivas testified
that he told Richman that Citywide’s supplies were trans-
ferred to Hudson in the evening, and that Richman told him
to continue this practice.
Richman’s explanation for the transfer of equipment and
supplies was that much of the equipment such as vacuum
cleaners and floor waxers had no value, was in poor repair,
and that he had no interest in taking such equipment since
he was leaving the cleaning business and could not store that
equipment. He testified similarly that with respect to the sup-
plies at jobsites, mops and buckets were of no value to any-
one, and that it would cost time and money for him to have
those supplies removed. He therefore just abandoned them.
The evidence concerning the purchase of a fax machine is
instructive. A fax machine was purchased for $487.11 by
Citywide’s check in August. The General Counsel asserts
that the fax was purchased by Citywide for Hudson.
Richman testified that he purchased that machine for his per-
sonal use at home to wind up the business. Giacoia testified
that he purchased a fax machine at the same store at the
same time for Hudson’s use. No Hudson check could be pro-
duced which shows that it was purchased by that company.
Giacoia stated that he purchased it for cash. In addition, in
August, Giacoia purchased an air conditioner for Hudson,
using two Citywide checks. Richman testified that Giacoia
obtained the checks in error, and that Giacoia repaid him
thereafter, but Giacoia was not certain that he repaid
Richman.
It also appears that Citywide paid for the installation of
computer software at Hudson’s premises. Both Richman and
Giacoia testified that that was a mistake. In September 1992,
the computer company advised Giacoia that the invoice for
the work was inadvertently sent to Citywide.
d. Richman’s continued involvement in Hudson
In early September 1991, before Rivas became employed
by Hudson, he was told by Richman that Richman and
Giacoia obtained a ‘‘good’’ union, or one that was okay for
Hudson. The union was identified as Local 143.
Rivas testified that in November, while he was employed
by Hudson, he was phoned by Richman who asked him to
submit an affidavit denying the facts given by Martinez in
the state court proceeding.
Rivas testified that following his state court testimony in
which he testified in behalf of Local 32B, Giacoia asked him
why he testified as he had, adding that many people would
be damaged by his testimony. Rivas told him that he wanted
to resign, and Giacoia asked him, as a personal favor, to stay
until mid-March, because Giacoia was planning a vacation
and needed Rivas. Rivas replied that he did not believe that
Richman would want him to remain employed after hearing
what his testimony was. Giacoia said that he would speak to
Richman. The following day, Giacoia told Rivas that
Richman became very angry at being told the nature of
Rivas’ testimony and cursed him. Giacoia then gave Rivas
a resignation letter to sign.
Rivas’ credibility has been called into question. Rivas gave
damaging testimony against Respondent Employers at this
hearing and at the state court hearing. Respondents assert
that his testimony must be discredited because he admittedly
made false statements in affidavits submitted in their behalf.
Respondents further assert, in deriding his credibility, that al-
though he signed an agreement with Hudson not to solicit
any of Hudson’s accounts, he nevertheless admittedly con-
tacted certain of those customers, informed them that he had
left Hudson’s employ, and inquired as to whether they were
satisfied with the work being performed by Hudson. Al-
though Rivas denied soliciting those accounts, his inquiry
came about as close to solicitation as could be imagined. Re-
spondents also assert that Rivas has an interest in giving
false testimony because his wife, Sandra Estrada, is a charg-
ing party here whose discharge is at issue.
Notwithstanding the above, I credit Rivas’ testimony in
full. His testimony at this hearing, which was basically con-
sistent with that at the state court trial, was supported by ex-
tensive documentation in the form of notes from company
officials including Giacoia and supervisors, regarding instruc-
tions concerning the moving of equipment and supplies from
Citywide to Hudson, and the moving of jobs from employees
who were members of Local 32B to nonunion workers. In
addition, much of his testimony on these critical issues was
either not contradicted or not adequately rebutted. He ex-
plained that he signed statements in behalf of his employer
because he believed that he had to sign them.
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Analysis and Discussion
The Board has ‘‘generally found alter ego status where the
two enterprises have ‘substantially identical’ management,
business purpose, operation, equipment, customers, and su-
pervision as well as ownership.’’ Advance Electric, 268
NLRB 1001, 1002 (1984). The Board also considers in mak-
ing this determination ‘‘whether the purpose behind the cre-
ation of the alleged alter ego was legitimate or whether, in-
stead, its purpose was to evade responsibilities under the
Act.’’ Advance, supra, or ‘‘to permit the original company to
avoid its labor relations obligations.’’ Marbro Co., 310
NLRB 1145, 1148 (1993). In addition, the Board considers
the nature and extent of the negotiations and formalities sur-
rounding the transaction, and the absence of arm’s-length
dealing between the parties tending to indicate the existence
of a disguised continuance. Fugazy Continental Corp., 265
NLRB 1301, 1302 (1985). ‘‘No one factor is determinative
of alter ego status, and not all of these indicia need be
present to find that an alter ego relationship exists.’’ MIS,
Inc., 289 NLRB 489, 491–492 (1988).
It must be reemphasized that Hudson was formed 5
months before Citywide closed, and began operating 2
months before Citywide closed. Hudson was formed with
capital from the Richman family, the sole investor. That
transaction was not an arm’s-length business arrangement
which could be expected from two separate entities. The loan
of $60,000 was not evidenced by a writing, and it was repaid
in cash in small amounts delivered to Richman.
It may be said that management remained substantially
identical. Richman took an active role in the formation of
Hudson, participating in ensuring that a friendly union was
obtained, and in directing the removal of equipment and sup-
plies from Citywide to Hudson, and in selecting the ‘‘best’’
workers for Hudson. Giacoia sought advice from Richman
concerning whether Rivas should continue in Hudson’s em-
ploy.
The business purpose and operation of the two companies
was identical: they were both involved in the commercial
cleaning of offices. Hudson used much of the same equip-
ment and supplies which it initially obtained from Citywide.
Hudson’s customers were obtained from Citywide in the
startup phase, and were solicited by Citywide’s sales rep-
resentatives, who became employed by Hudson. Yerger
Trucking, 307 NLRB 567, 574–575 (1992). The supervisors,
too, transferred from Citywide to Hudson. They supervised
employees who also transferred from Citywide and who per-
formed the same work, with the same equipment, for the
same customers, when employed at Hudson. C. J. Rogers
Transfer, 300 NLRB 1095, 1100 (1990).
Citywide paid Hudson’s first payroll, making such wage
payments to employees who were transferred from Citywide
to another company and then to Hudson’s payroll. Citywide
also paid for the purchase of a fax machine, air conditioners,
and the installation of a computer program.
Large amounts of supplies and equipment were moved
from Citywide to Hudson without compensation. Supplies
left on jobsites by Citywide were, despite industry practice,
not retrieved by that company, but were taken by Hudson,
also without compensation. Citywide’s accounts were per-
mitted to be solicited by its employees for Hudson, while
still on Citywide’s payroll, and no compensation was made
for those accounts, although Citywide had received payment
for other accounts assigned to other cleaning companies.
It also appears that Hudson was formed so that Citywide
could avoid its obligation to Local 32B. Citywide owed enor-
mous sums of money to the Local 32B funds and simply
stopped making payments to those funds. It is clear that
Richman devised a plan to continue operation through Hud-
son with a new, more acceptable union, and make it appear
that Citywide was closing its operations. This is supported by
the testimony of Rivas that, beginning in early April 1991,
Giacoia told him to replace the Local 32B members who
were working on Citywide’s jobs with nonunion workers.
The Local 32B employees were either laid off or had their
hours reduced. He stated that at the time he left Citywide in
October, 90 percent of the jobs were being serviced by non-
union workers.
I accordingly find and conclude that Hudson was merely
a disguised continuance of Citywide, and that the closing of
Citywide and the opening and operation of Hudson was mo-
tivated by a desire to avoid dealing with Local 32B and in
an effort by Citywide to avoid its obligations to Local 32B.
I therefore find that Hudson is an alter ego of Citywide.
C. J. Rogers Transfer, 300 NLRB 1095, 1100 (1990).
D. The Discharge of Fernando Martinez
Martinez became employed by Citywide as a cleaner in
June 1989. He became a member of Local 32B, 1 year after
becoming employed and began earning $11 per hour.
On September 11, 1991, Rivas told Martinez that Citywide
might close, and that he had been selected as one of the best
workers to move to Hudson. He was offered a salary of $10
per hour, and was told that there was no union at Hudson
currently, but that there might be one.
On September 13, Martinez was introduced to Local 143
Representative Miguel Santos by Citywide Supervisor Nelson
Hernandez and Hudson Supervisor Sam Rivera. Santos asked
him to sign a card for Local 143. Martinez refused, saying
he was a member of Local 32B. Rivera replied that if he did
not sign a card for Local 143, he would no longer be work-
ing there, and would not be hired by Hudson. Martinez testi-
fied in the New York State Court proceeding that Santos said
this to him. Martinez did not sign the card at that time, but
later, when asked by Giacoia, he signed. Martinez’ card is
dated September 30.
Martinez began work for Hudson in late September or
early October.
On November 7, Martinez appeared in New York State
Supreme Court in behalf of Local 32B to testify in an action
brought by that union against Hudson. He testified in this
Board hearing that, on seeing him in state court, Giacoia
shook his head from side to side. Martinez returned to work
that day, whereupon Rivas told him that Giacoia saw him in
court and that they would take action against him, by cutting
his hours in half and thereby forcing him to quit.
Martinez stated that his hours were not cut because there
was much work, but on November 14, he was told by Rivas
that there was no work that night, and that he should return
the following day. Martinez came back the next day and was
told that there was no more work for him, and that he was
terminated. In early December, Rivas told him that he was
fired unjustly, and that Rivas had been told by Giacoia that
Hudson could not have enemies within the Company.
875CITYWIDE SERVICE CORP.
6 Rivas’ testimony that this instruction occurred in late October is
an obvious error in view of Martinez’ testimony.
7 I affirm my ruling rejecting Hudson’s offer of a document listing
accounts which were allegedly canceled, because underlying, sup-
porting documentation, although subpoenaed, was not produced.
Rivas testified that he told Giacoia that Martinez was
working 45 to 50 hours per week. Giacoia instructed Rivas
to reduce his hours to a maximum of 25.6 Rivas further testi-
fied that in late November, Giacoia told him that he saw
Martinez at state court, and referred to him as a ‘‘spy,’’ and
instructed Rivas to discharge him, which he did within 1 or
2 days.
Giacoia admitted seeing Martinez at state court, assumed
that he was there in behalf of Local 32B, and stated that he
may have mentioned to Rivas that he saw him there, but de-
nied that his presence at the courthouse caused his layoff.
I find that the General Counsel has made a prima facie
showing that Martinez’ presence in the state court room, in
behalf of Local 32B, was a motivating factor in Hudson’s
decision to discharge him. Martinez engaged in activities in
behalf of Local 32B by appearing to testify in its behalf.
Giacoia was aware of his presence at the courthouse in be-
half of Local 32B. Giacoia bore animus toward Martinez, as
seen by Giacoia’s shaking his head in a negative manner
when he saw him. An immediate order was given to Rivas
to cut his hours, and Supervisor Rivas later admitted to Mar-
tinez that he was fired because he was viewed by Giacoia
as an ‘‘enemy’’ or a ‘‘spy.’’
The timing of the discharge lends support to the General
Counsel’s case. Thus, Martinez was present at the state
courthouse on November 7, he was told 1 week later, on No-
vember 14, that there was no more work for him, and the
following day he was terminated.
I accordingly find that the General Counsel has established
a prima facie showing of unlawful motivation in the dis-
charge. Wright Line, supra.
In Hudson’s defense, Giacoia testified that Martinez was
laid off because of loss of work, and that other employees
were laid off for the same reason at that time.7 Giacoia testi-
fied that in deciding who to lay off, he complied with the
provisions of the Local 143 contract, which requires that the
least senior employee be laid off first. He conceded, how-
ever, that his selections were not always accurate, although
when selecting employees for layoff, he looked at Hudson’s
records which list the hire date of the employees.
Accordingly, he stated that he examined Hudson’s books
and found that Martinez was less senior than other employ-
ees. Hudson did not produce subpoenaed documents which
would have shown the employees’ dates of hire. Other docu-
ments, however, were received in evidence. But even those
documents are suspect. Thus, one document stated that Mar-
tinez’ date of hire was October 7, but Giacoia testified that
that was a mistake, since Martinez was actually hired on
September 30. In addition, Martinez’ name was not on the
payroll record for the payroll period ending October 6.
In examining Hudson’s records, Giacoia conceded that em-
ployees Carlos Dominques and Alex Garcia, who had greater
seniority, but who were laid off, out of seniority, before Mar-
tinez. Giacoia testified, however, that those ‘‘terminated’’
may not have been terminated for lack of work, but may
have quit. Accordingly, Hudson’s records do not support a
finding that employees were laid off in accordance with se-
niority.
On being confronted with the above facts, Giacoia stated
that Martinez was laid off because he was a floor waxer, and
with the loss of accounts there was little floor waxing to be
performed. Giacoia conceded that he laid off floor waxers
last because their skills were needed, but nevertheless laid
off Martinez. He stated that Martinez was the least senior of
three floor waxers, and that Martinez was laid off based on
his seniority as a floor waxer. Giacoia stated that the payroll
records do not indicate who was a floor waxer, and he con-
ceded that the contract’s seniority provision does not provide
for layoffs based on type of job performed.
Thus, Giacoia’s testimony regarding Martinez represents
an attempt to adroitly shift positions once a position pre-
viously taken has been rebutted. Thus, Giacoia first testified
that Martinez was laid off for lack of work. When supporting
documents were not forthcoming, Giacoia stated that he was
laid off according to seniority. When it was shown that other
more senior employees were terminated before him, he stated
that the more senior employees may not have been laid off
at all, but may have quit their employment. When no records
were forthcoming concerning who quit or was laid off,
Giacoia testified that Martinez was laid off according to se-
niority among the floor waxers. Finally, it was shown that
the contract did not provide for seniority by position, nor
why Martinez could not have performed, or been offered em-
ployment in, a less-skilled position.
I accordingly find that Hudson has not met its burden of
proving that Martinez would have been laid off even in the
absence of his activities in behalf of Local 32B. Wright Line,
supra.
E. The Assistance to and Recognition of Local 143
The complaint alleges that Hudson rendered unlawful as-
sistance to Local 143 by informing its employees of, and in-
viting them to a meeting with, Local 143 on Hudson’s prem-
ises, and by distributing Local 143 authorization cards to its
employees. The complaint also alleges that Hudson violated
the Act by granting recognition to, and entering into, and
maintaining, a collective-bargaining agreement with Local
143 at a time when it was not the lawfully recognized collec-
tive-bargaining representative of its employees. Local 143 is
also alleged as having unlawfully accepted such recognition.
Respondents Hudson and Local 143 deny these allegations.
Giacoia testified that he first learned of the existence of
Local 143 in early September 1991, when he was contacted
by its president, Anthony Parisi. This contact occurred about
1 week before he executed a collective-bargaining agreement
with that Union. Parisi told him that a certain number of em-
ployees had signed cards for that Union, and that he wished
to meet and negotiate a contract. Giacoia resisted, but Parisi
told him that the Union represented a majority of Hudson’s
employees. The number of cards that Parisi had was not
mentioned, and Parisi did not ask him how many employees
were employed at Hudson.
Giacoia testified that he met with Parisi about 3 to 4 days
later. Giacoia stated that he could have met with Parisi on
September 13. Parisi showed Giacoia more than 15 author-
ization cards. Giacoia testified that based on that, he under-
stood that Local 143 represented a majority of Hudson’s em-
ployees, but that he had no reason to believe that Local 143
876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Those cards were dated between September 13 and 19. Two ad-
ditional cards were undated. As of September 13, Local 143 had
only seven cards.
9 For the week ending September 6, the payroll lists 34 employees,
including 4 who appear to have been terminated. For the week end-
ing September 13, the payroll lists 41 employees, including 5 who
appear to have been terminated.
represented a majority of those employees. The two men
spent most of the day negotiating and agreeing to the terms
of a collective-bargaining agreement. They agreed on a start-
ing wage of $6 per hour, with raises after 30 and 90 days
to $6.25 and $6.50, respectively. Parisi did not ask Giacoia
how much he was currently paying his workers, and Giacoia
readily agreed to the rates offered because they were lower
than the rates of pay his workers were then receiving. The
contract contained a union-security provision which provided
that membership in Local 143 was required, as a condition
of employment, 30 days from the effective date of the agree-
ment or from the date of hire.
Giacoia further testified that on September 23, Parisi’s
brother, Dominick, a Local 143 business agent, delivered a
copy of the contract for Giacoia to sign. The contract con-
tained the signatures of nine employees. Giacoia then signed
it. He testified that there were about 40 employees then em-
ployed by Hudson, and that he had ‘‘no reason to believe
that Local 143 represented a majority of Hudson’s employ-
ees.’’
Anthony Parisi did not testify. Dominick Parisi testified
that he was contacted by Hudson employee Miguel Santos.
Parisi met Santos and other employees on September 13.
About six or seven employees signed cards at that time, and
Parisi gave them other cards to distribute to their coworkers.
Dominick further testified that about eight additional cards
were given to him on September 19, and others were mailed
to the union office. Martinez testified that Giacoia asked him
to sign a card, and he did so. His card is dated September
30.
In order to determine whether Local 143, in fact, rep-
resented a majority of Hudson’s employees on the date of
recognition, that date must be determined. It is conceded that
recognition occurred days before the contract was executed.
There was varying testimony concerning the execution
date. The complaint alleges that the contract was executed on
September 13. Giacoia and Parisi testified that the contract
was signed on September 23. There was substantial evidence
that the contract was executed on September 13. Thus, the
agreement states that it was made and entered into on Sep-
tember 13, and the anniversary dates regarding wage in-
creases and expiration are September 13. Parisi testified that
he gave the wrong date to his secretary, who allegedly mis-
takenly typed September 13 at various places in the contract.
The Union’s representative status must be viewed as of the
date of recognition, which according to Respondents, oc-
curred prior to the contract’s execution on September 23, i.e.,
on September 22 or before. Local 143 had 14 signed author-
ization cards from employees prior to September 23.8
For the week ending September 20, Hudson’s payroll lists
37 names, including 1, Espiridion Ocon, who worked only
one-half hour. For the week ending September 27, the pay-
roll lists 40 names, including 1, Jose Ortiz, who worked no
hours and appears to have been terminated.9
Accordingly, even assuming that Hudson recognized Local
143 some time before September 23, the date that Respond-
ents claim they executed the agreement, Local 143 had
signed authorization cards from 14 employees, out of a total
complement of, at best, 36 employees. Accordingly, at the
time of Hudson’s recognition of Local 143 that Union did
not represent a majority of Hudson’s employees.
The nine cards obtained by Local 143 which are dated
September 23, cannot be counted toward Local 143’s major-
ity support. Such postrecognition authorizations cannot vali-
date a collective-bargaining agreement which was based on
nonmajority recognition. Human Development Assn., 293
NLRB 1228, 1229 (1989).
It thus appears that Respondents’ arrangement was made
in haste, perhaps even before Hudson began its operations on
August 5, 1991, in order to ensure that Local 143, and not
Local 32B, represented the employees. Proof of this may be
seen in the proposals sent by Hudson to prospective clients.
The proposals, which stated that ‘‘all employees are mem-
bers in good standing with . . . Local 143,’’ bore dates of
August 7, 12, 15, 19, 20, 23, and 25. Significantly, these pro-
posals were sent before Giacoia, according to his testimony,
knew of the existence of Local 143, and certainly before
Local 143 represented any of Hudson’s employees.
Giacoia’s explanation of these proposals strains credulity.
He testified that the proposals were sent out on the dates
noted without any reference to Local 143. Then, following
his execution of the collective-bargaining agreement, he di-
rected his secretary to add the material concerning Local 143
and again send the same proposal with the original date, so
as to make it ‘‘more comfortable’’ for the customers, and to
inform them that his employees were ‘‘now’’ members of
Local 143. He termed this procedure an ‘‘administrative foul-
up’’ because it is his practice that letters sent out on a certain
date bear the date that they are mailed. These letters rep-
resent an ‘‘exception’’ to that practice.
Further evidence of a plan to quickly recognize Local 143
may be seen in Giacoia’s attitude toward unions generally.
He testified that as a businessman starting a new company,
his interest was in keeping his costs and overhead down, es-
pecially his labor costs, which he knew would be his major
expense. He also stated that if he could avoid a union con-
tract he would do so. Only 1 month after opening his busi-
ness, however, he agreed to meet with Local 143 based on
a phone call from Parisi who stated that he represented some
of Hudson’s employees. At that meeting, a collective-bar-
gaining agreement was readily entered into. Although it is
understandable that Giacoia would quickly agree to an agree-
ment which provided for lower wages than his employees
were currently earning, the evidence suggests that Giacoia
was motivated as much as, if not more than, a desire to uti-
lize the Local 143 agreement as a device to thwart Local
32B’s organizational efforts.
I accordingly find and conclude that Hudson recognized
Local 143 as the exclusive bargaining representative of its
employees, and entered into a collective-bargaining agree-
ment at a time when Local 143 was not the lawfully recog-
nized exclusive collective-bargaining representative of Hud-
son’s employees.
I thus find that Hudson, by recognizing Local 143, and
that Local 143, by accepting recognition, and that both Re-
spondents, by executing a collective-bargaining agreement
877CITYWIDE SERVICE CORP.
containing a union-security agreement at a time when Local
143 was not the lawfully recognized exclusive collective-bar-
gaining representative of Hudson’s employees, violated the
Act.
I also find that Supervisor Rivera unlawfully asked Mar-
tinez to sign a card for Local 143, and that Giacoia made
the same request of employee Blanca Samuel, infra.
F. The Alleged Violations of Section 8(a)(1)
The complaint alleges that numerous violations of Section
8(a)(1) have been committed.
1. The alleged promises
I have found that on about March 28, 1991, Citywide Offi-
cial Giacoia told Estrada that if she withdrew her complaint
with Local 32B concerning her joining the Union as of her
date of hire, she would receive 2 weeks’ paid vacation, sick
days, and a guarantee of 6 months’ work. I have also found
that about 2 days later, Giacoia told her, and employees Gar-
cia and Tzorin, that they would receive the same benefits if
they withdrew their grievance at Local 32B.
I have also found that Citywide Official Giacoia told Sapia
on about March 27 that if she did not request Local 32B
membership as of her date of hire, she would receive $780,
2 weeks’ paid vacation, paid holidays, and a 6-month guaran-
tee of work.
I have further found that on about April 8, Citywide Presi-
dent Richman, in an apparent reference to the offers pre-
viously made, promised to give Sapia two checks in consecu-
tive weeks if she would sign those papers and go to Local
32B.
In addition, I have found that Garcia was told by Citywide
Supervisor Rivera and Giacoia that he would be given 2
weeks’ vacation and a 6-month guarantee of work, and was
told to tell the Local 32B agent that he had no problems with
Citywide.
In all of the above instances, the employees were offered
benefits in order to induce them to abandon their grievance
with Local 32B. As set forth above, their assertion of the
grievance that they should receive contractual benefits from
their date of hire constituted protected activity. The offer of
benefits to them in order to cause them to abandon their pro-
tected activity interfered with their right to engage in such
activity. That conduct violates Section 8(a)(1) of the Act.
2. The alleged threats
I have found that on about March 28, Supervisor Rivera
expressed disappointment with Sapia that she did not sign
certain papers at Local 32B, and told her that Estrada had
been discharged for refusing to sign those papers. Advising
an employee that another had been discharged for her union
activities violates Section 8(a)(1) of the Act. IMAC Energy,
305 NLRB 728, 730 (1991).
I have found that on about March 29, Citywide Supervisor
Rivera told Estrada that if she did not withdraw her griev-
ance with Local 32B she would be discharged. The filing of
a grievance is protected activity, and Estrada had a right to
continue to pursue her grievance. Threatening her with dis-
charge if she did not withdraw it violates the Act. Cf. North-
west Community Nursing Service, 306 NLRB 602 fn. 4
(1992).
I have also found that on April 8, Richman threatened to
discharge Sapia if she did not sign certain papers at Local
32B, which apparently were to authorize the union to begin
her union membership as of the current date, and not her ret-
roactive date.
I have further found that at the same time, Richman threat-
ened Tzorin with discharge for refusing to sign the paper. I
also find that Richman’s statement to Tzorin, made at the
same time, that he would not give him a favorable letter of
recommendation violates the Act. Although not strictly a
threat of blacklisting, Richman clearly threatened to deny
Tzorin a privilege which he apparently would have received
on his leaving Citywide’s employ. Thus, in the same breath,
Richman threatened him with discharge for attempting to en-
force the Local 32B contract, and told him that he would not
give him a favorable reference on his discharge. Cf. Heart-
land of Lansing Nursing Home, 307 NLRB 152, 158 (1992).
In addition, I have found that Rivera threatened to dis-
charge Garcia if he did not accept an offer of 2 weeks’ pay
and a guarantee of 6 months’ work, coupled apparently with
his agreement to tell the Local 32B agent that he had no
problems with Citywide.
I also find that Rivera’s statement to Godash that he and
Supervisor Hernandez would not leave her alone until she
dropped her grievance with Local 32B or quit, constitutes an
unlawful threat of harassment because she filed a grievance.
As to the above threats to Sapia, Tzorin, Garcia, and
Godash, it is clear that all three employees were attempting
to assert rights under the collective-bargaining agreement
with Local 32B. Sapia, Tzorin, and Garcia sought to base
their union membership on their correct, earlier hire date, and
not the current date as proposed by Citywide. Godash’s
grievance also sought payment, under the terms of the agree-
ment, for work performed which had not been paid for.
Thus, the employees were engaging in activities designed to
obtain Citywide’s compliance with the terms of the agree-
ment with Local 32B and were thus protected. Threats and
promises made to them for engaging in this activity were co-
ercive. Transpac Fiber Optics, 305 NLRB 974, 975 (1991);
Scott Lee Guttering Co., 295 NLRB 497, 505 (1989).
I also find that Martinez was threatened with discharge if
he did not sign a card for Local 143. Martinez testified in
different forums, variously, that Citywide Supervisor Rivera
told him that, and that Local 143 Agent Santos made that re-
mark. But it is clear that both Rivera and Santos were
present when the statement was made, and both adopted it.
Martinez had no obligation to sign a card for Local 143, and
could not be threatened with discharge for refusing to do so.
Miss Elaine, Inc., 274 NLRB 181, 185 (1985).
I also find that Rivas’ statement to Martinez on November
7 that his hours would be cut, forcing him to quit, was in
retaliation for his appearance at state court in a matter
brought by Local 32B seeking to find Hudson responsible
under the Local 32B contract. Martinez’ presence at the
courthouse was protected activity. T & W Fashions, 291
NLRB 137 fn. 2 (1988). The threat to reduce his hours was
unlawful. Swan Coal Co., 271 NLRB 861, 868–869 (1984).
3. The alleged interrogations
I have found that on about March 27 Giacoia asked Sapia
why she wanted to become a union member. Fiber Glass
Systems, 298 NLRB 504, 505 (1990). The issue is whether
878 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 The transcript lists ‘‘treatment’’ as the bracketed word, but obvi-
ously the word should be ‘‘agreement.’’
the interrogation reasonably tends to restrain, coerce, or
interfere with employees’ rights guaranteed by the Act.
Rossmore House, 269 NLRB 1176 (1984). This constitutes
an unlawful interrogation. Sapia had expressed a desire to
join Local 32B some months earlier, and this question, asked
by a high company official, required Sapia to make an expla-
nation defending and supporting her right to union member-
ship. She need not do this, and Citywide violated Section
8(a)(1) of the Act in asking the question.
The complaint also alleges an unlawful interrogation of
Blanca Samuel. I cannot find that an unlawful interrogation
occurred. On September 23, while employed by Hudson,
Samuel arrived late to work. The following day, Rivera
asked her why she was late. She said she had a problem, and
Rivera inquired what the problem was. She answered that
she had a medical appointment with Local 32B, whereupon
Rivera said he had nothing to do with that union, and asked
her to show the appointment letter to Giacoia, which she did.
Giacoia told her that he had nothing to do with Local 32B,
and said that Hudson has a new union, and gave her a Local
143 authorization card to sign.
Rivera did not initiate the inquiry concerning the union.
He was merely asking why she was late. It does not appear
that Rivera had any reason to believe that Samuel’s late ar-
rival at work had anything to do with Local 32B. Rather,
Samuel volunteered to Rivera that she was late due to an ap-
pointment with the union. I will accordingly recommend dis-
missal of this allegation of the complaint. I do not find, as
asserted by the General Counsel in her brief, that the remarks
by Rivera and Giacoia that they have nothing to do with
Local 32B are unlawful threats.
G. Hudson’s Refusal to Bargain with Local 32B
1. The procedural question
On September 30, 1991, Local 32B filed a charge in Case
2–CA–25331, which alleged that since July or August 1991,
Hudson dominated and interfered with a labor organization
in violation of Section 8(a)(1), (2), and (3) of the Act by
contributing financial and other support to Local 143, and by
requiring its employees to abandon their support of and
membership in Local 32B, and join Local 143.
On April 9, 1992, Local 32B filed a first amended charge
against Hudson, which repeated the above allegations, and
added that Hudson unlawfully granted recognition to Local
143, executed a collective-bargaining agreement with it, and
deducted dues from its employees’ pay at a time when Local
143 did not represent a majority of Hudson’s employees in
violation of Section 8(a)(1), (2), and (3) of the Act.
On January 21, 1993, Local 32B filed a second amended
charge against Citywide and its alter ego Hudson, which re-
peated the allegations set forth in the original charge filed on
September 30, 1991, and added the further allegation that
since about August 5, 1991, the Employer has refused to bar-
gain with Local 32B by failing to implement and apply the
collective-bargaining agreement, and existing terms and con-
ditions of employment in violation of Section 8(a)(1), (2),
(3), and (5) of the Act.
On February 19, 1993, the Regional Director issued an
order further amending consolidated complaint. The order set
forth that the consolidated complaint was amended to allege
that since August 5, 1991, Citywide and Hudson have failed
and refused to apply and maintain the terms and conditions
of employment set forth in the collective-bargaining agree-
ment between Citywide and Local 32B in violation of Sec-
tion 8(a)(5) and (1) of the Act.
Hudson filed an answer to the order further amending con-
solidated complaint, in which it denied the material allega-
tions thereof.
Citywide had a collective-bargaining agreement with Local
32B, which expired on December 31, 1992, and which set
forth the following appropriate collective-bargaining unit:
All full-time and regular part-time service employees
employed by the employer in any facility including res-
idential buildings in New York, Nassau, and Suffolk
counties and New Jersey.
At the hearing, Citywide stipulated that at all times mate-
rial, Local 32B represented a majority of Citywide’s employ-
ees in the appropriate collective-bargaining unit, and that
Citywide was a party to the above-described collective-bar-
gaining agreement with Local 32B.
At the hearing, Hudson amended its answer to allege that
the first amended charge and the second amended charge
were untimely filed.
The General Counsel concedes that the second amended
charge, filed nearly 1-1/2 years after the alleged refusal to
bargain occurred, was untimely filed. She defends, however,
on the ground that 10(b)’s requirement that charges must be
filed within 6 months of the alleged unfair labor practice is
tolled by the employers’ actions in fraudulently concealing
the fact that Hudson was the alter ego of Citywide.
The General Counsel further admits that, although Local
32B ‘‘clearly had reason to believe that Hudson was merely
a disguised continuance of Citywide as far back as October
1991,’’ it was justified in not filing a charge alleging its con-
duct as violative of Section 8(a)(5) because it was unable to
confirm its suspicions until a long discovery process was un-
dertaken as part of state and Federal litigation.
There is no question, as the General Counsel concedes,
that Local 32B had reason to believe that Hudson was the
alter ego of Citywide in October 1991. On October 17, 1991,
Supervisor Rivas gave an affidavit to Local 32B in which the
facts concerning the scheme to open Hudson as the alter ego
of Citywide was laid out in detail.
In addition, Kevin McCulloch, the assistant to the presi-
dent of Local 32B, testified that in the summer of 1991, the
Union became aware of contract violations committed by
Citywide, including layoffs out of seniority and employees
not being paid union wages and benefits, and was also told
by employees that Citywide was planning to close, and that
they could become employed by Hudson. McCulloch then
stated that Local 32B ‘‘commenced an arbitration which in-
cluded Hudson as an alter ego of Citywide,’’ the purpose of
which was to ‘‘have Hudson as Citywide bound by the union
[agreement].’’10
McCulloch further testified that the Union’s funds brought
an arbitration action against Citywide to determine the
amount of money it owed the Local 32B funds. On October
7, 1991, the arbitrator issued an award finding that Citywide
owed certain moneys to the funds. Thereafter, the funds
879CITYWIDE SERVICE CORP.
brought an action in Federal court against Citywide and Hud-
son as the alter ego of Citywide to obtain compliance with
the arbitrator’s award.
Section 10(b) of the Act provides, in part, that ‘‘no com-
plaint shall issue based upon any unfair labor practice occur-
ring more than six months prior to the filing of the charge.’’
The General Counsel alleges that the failure of Local 32B
to timely file the charge should be excused because of Re-
spondents’ fraudulent concealment of its alter ego relation-
ship. It is clear, however, based on the above, and as con-
ceded by the General Counsel, that Local 32B was aware of
the material facts which constituted the unfair labor practice,
as early as October 1991. The General Counsel asserts, how-
ever, that it was not able to definitely substantiate its belief
that a violation had occurred, until the lengthy court discov-
ery proceedings.
A charging party is not held to such a rigorous standard
in order to file a charge. It need not have conclusive evi-
dence that a violation has occurred. ‘‘All that is required is
that the ‘act’ giving rise to unlawful conduct be known. To
require more would reduce 10(b) to the meaningless.’’ Al
Bryant, 260 NLRB 128, 135 fn. 19 (1982).
‘‘The period of limitations prescribed by Section 10(b)
does not begin to run . . . until the person adversely affected
is put on notice of the act constituting it.’’ Burgess Construc-
tion, 227 NLRB 765, 766 (1977). Exculpatory statements by
an employer which are false or misleading or not sufficient
to toll Section 10(b) where the charging party independently
was aware of certain facts suggesting possible unlawful con-
duct. Girardi Distributors, 307 NLRB 1497, 1511 (1992).
Here, Rivas came forward in October 1991, with evidence of
an 8(a)(5) violation, and Local 32B was aware, at about that
time, that such an unfair labor practice had occurred, as set
forth above. H. A. Green Decorating Co., 299 NLRB 157
fn. 2 (1990), relied on by the General Counsel is inapposite.
In that case, the 10(b) period was tolled until an employee
provided evidence to the union. Here, Rivas did just that in
October 1991. In addition, Local 32B commenced an arbitra-
tion which named Hudson as an alter ego, and sought to en-
force another arbitration award against Citywide by naming
Hudson as the alter ego of Citywide.
In order to establish a fraudulent concealment, it must be
found that there has been (a) deliberate concealment, (b) ma-
terial facts were the object of the concealment, and that (c)
the injured party was ignorant of those facts, without any
fault or want of due diligence on its part. All three elements
must be met to warrant the tolling of the statute of limita-
tions. Holmberg v. Armbrecht, 327 U.S. 392, 397 (1946).
It is clear that Local 32B was aware of the material facts
constituting the alleged refusal to bargain by Respondents as
early as October 1991, and that the 10(b) period began to run
as of that time. It became aware of such facts when Super-
visor Rivas gave an affidavit to it, and when it brought its
arbitration cases. Thus, Local 32B was not ignorant of the
facts which could have been made the subject of a charge
at that time. Brown & Sharpe Mfg. Co., 312 NLRB 444
(1993). I accordingly find and conclude that the second
amended charge and the order further amending consolidated
complaint are barred by Section 10(b) of the Act.
2. The merits
If the Board finds that Section 10(b) did not bar the sec-
ond amended charge or the order further amending consoli-
dated complaint, I find that Hudson, as the alter ego of City-
wide, was obligated to adhere to, and was bound by, the col-
lective-bargaining agreement that Citywide had with Local
32B. RCR Sportswear, 312 NLRB 513 (1993); C. J. Rogers
Transfer, 300 NLRB 1095, 1101 (1990).
H. The General Counsel’s Request for a Sua
Sponte Finding
Counsel for the General Counsel requests that I make a
sua sponte finding that Respondents violated Section 8(a)(3)
of the Act by failing to retain Citywide’s employees for work
at Hudson. She asserts that such a finding is warranted by
the fact that Giacoia admitted that Hudson’s failure to retain
the employees was due to their membership in Local 32B.
The failure to retain those employees was not alleged in
any charge or in the complaint. Nevertheless, the General
Counsel argues that a finding is warranted because Giacoia
admitted the violation, the matter was fully litigated, and the
issue was closely connected to the subject matter of the com-
plaint.
Giacoia testified that as a new businessman, he sought to
keep his costs down, and that if he was required to pay his
employees the wages and benefits provided in the Local 32B
contract he would be operating on a ‘‘shoestring.’’ He de-
scribed the Local 32B rates as ‘‘prohibitive’’ and ‘‘economi-
cally unfeasible,’’ and for that reason he did not hire anyone
who was represented by that union. He further testified that,
for economic reasons, he had no intention of operating a
union shop, or recognizing Local 32B, and he therefore knew
that he could not retain any of the cleaning personnel em-
ployed by Citywide.
Based on the above testimony, the General Counsel asserts
that a violation has been established, through Giacoia’s testi-
mony, and that therefore the matter was fully litigated.
I do not agree that the matter has been fully litigated, or
that the issue is closely connected to the matters alleged in
the complaint. Pergament United Sales, 296 NLRB 333
(1989), relied on by the General Counsel, is inapposite. In
that case, the complaint alleged an 8(a)(3) refusal to hire. Al-
though that allegation was dismissed, the Board found an
8(a)(4) violation, based on an employer official’s testimony
that he refused to hire certain employees because a charge
was filed. The Board stated that the 8(a)(4) issue was closely
connected to the subject matter of the complaint because
both allegations focus on the same set of facts—the lawful-
ness of the employer’s motivation for failing to hire the em-
ployees.
Here, there was no allegation in any charge, and no allega-
tion in the complaint which alleged Hudson’s refusal to re-
tain the employees of Citywide. It thus cannot be said that
the refusal to retain the employees was involved in this case
at all. I cannot base a finding on a matter which has not been
alleged, which has been raised for the first time in a
posthearing brief, and as to which Respondents have received
no formal notice. Medin Realty Corp., 307 NLRB 497, 503
(1992).
Accordingly, I deny the General Counsel’s request for a
sua sponte finding that Respondents failed and refused to re-
880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tain the employees represented by Local 32B who were em-
ployed by Citywide.
CONCLUSIONS OF LAW
1. Respondents Citywide Service Corp. and Hudson Serv-
ice Corp. are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. At all times material, Hudson has been the alter ego of
Citywide.
3. Local 32B and Local 143 are labor organizations within
the meaning of Section 2(5) of the Act.
4. By discharging Sandra Estrada and Estella Sapia, and
by temporarily suspending Patricia Godash, Respondent City-
wide violated Section 8(a)(3) and (1) of the Act.
5. By discharging Fernando Martinez, Respondent Hudson
violated Section 8(a)(3) and (1) of the Act.
6. By recognizing Local 143 as the exclusive bargaining
representative of its employees, and by entering into a collec-
tive-bargaining agreement containing a union-security clause
with Local 143 on September 13, 1991, covering the em-
ployees, at a time when Local 143 did not represent an
uncoerced majority of the employees, Respondent Hudson
violated Section 8(a)(1), (2), and (3) of the Act.
7. By accepting recognition from Respondent Hudson, and
by entering into a collective-bargaining agreement with Re-
spondent Hudson, Respondent Local 143 violated Section
8(b)(1)(A) and (2) of the Act.
8. Respondent Hudson violated Section 8(a)(1) and (2) of
the Act by asking its employees to sign authorization cards
on behalf of Local 143.
9. By offering its employees benefits, including paid vaca-
tion, sick days, holidays, and a guarantee of work, if they
would abandon their grievance with Local 32B, Respondent
violated Section 8(a)(1) of the Act.
10. By threatening its employees with discharge, and with
continued harassment, if they did not abandon their griev-
ances with Local 32B, and if they did not sign a card for
Local 143, and by threatening to refuse to give an employee
a favorable reference, Respondent Citywide violated Section
8(a)(1) of the Act.
11. By threatening to reduce an employee’s hours of work
because he appeared in state court in behalf of Local 32B,
Respondent Hudson violated Section 8(a)(1) of the Act.
12. By interrogating employees, Respondent Hudson vio-
lated Section 8(a)(1) of the Act.
13. I do not find, as alleged in the complaint, that Re-
spondent Employers violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with Local 32B as the exclusive
collective-bargaining representative of their employees, inas-
much as the second amended charge and the order further
amending consolidated complaint are barred by Section 10(b)
of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they be or-
dered to cease and desist therefrom, and to take certain af-
firmative action designed to effectuate the policies of the
Act. In addition, Respondents will be ordered to rescind their
bargaining relationship and to reimburse all employees for
dues and fees withheld from their pay pursuant to the collec-
tive-bargaining agreement executed on September 13, 1991.
The amounts to be paid to discharged employees Sandra
Estrada, Estella Sapia, Fernando Martinez, and to suspended
employee Patricia Godash, to make them whole for any loss
of earnings and other benefits, and the amounts I shall rec-
ommend that Respondents reimburse the employees, shall be
computed in the manner prescribed in Florida Steel Corp.,
231 NLRB 651 (1977), and New Horizons for the Retarded,
283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]