Laro Maintenance Corp.

National Labor Relations Board - Board Decisions

Sep 20, 1993

312 N.L.R.B. 155 (N.L.R.B. 1993)

155
312 NLRB No. 29
LARO MAINTENANCE CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent excepted to the judge’s finding that employee
Luis Quebrada, who worked at the Respondent’s Jamaica Center fa-
cility for 2 days after he was denied employment at its Cadman
Plaza facility, had informed Supervisor Wally Perkins that he was
quitting. Contrary to the judge’s finding, the record indicates that
Quebrada walked off the Jamaica job without notice or warning to
the Respondent. We find that this inadvertent error does not affect
the outcome of the case.
2 We agree with the judge’s finding that the Respondent violated
Sec. 8(a)(3) and (1) of the Act when it refused to hire 13 of its pred-
ecessor’s employees in order to avoid an obligation to bargain with
Local 32B-32J. In so finding, we note that the Respondent had no
legitimate reason for refusing to interview or consider the prede-
cessor’s employees who applied for positions at Cadman Plaza re-
quiring their particular skills and experience. Indeed, the Respondent
admitted that it had predetermined that it would not hire any more
of the predecessor’s employees than it believed it was required to
by General Services Administration (GSA), the party contracting for
its services. We also find that the Respondent’s hiring practices evi-
denced a discriminatory motive. While refusing to even consider the
experienced pool of incumbent employees, the Respondent hired four
new employees, three of whom had no cleaning and maintenance ex-
perience, and transferred two employees with poor disciplinary
records from its Jamaica Center jobsite. Under these circumstances,
we find that the Respondent’s refusal to hire the 13 incumbent em-
ployees was motivated by the employees’ prior employment by
Prompt Maintenance Services, Inc. and their representation by Local
32B-32J, and its desire to avoid having to recognize and bargain
with Local 32B-32J.
In finding that the Respondent refused to hire 13 of the prede-
cessor’s employees in order to avoid successorship, Member
Raudabaugh recognizes that the Respondent did hire 10 predecessor
employees, albeit at the urging of GSA. However, these 10 employ-
ees were less than half of the approximately 21 employees at
Cadman Plaza. Further, the Respondent believed (erroneously) that
Cadman Plaza and Jamaica constituted a single unit, and 10 prede-
cessor employees were clearly a minority in that unit.
3 We note that in his remedy section the judge inadvertently re-
ferred to 10 discriminatees. In fact, as the judge found in his analysis
section, the Respondent unlawfully refused to hire 13 employees.
We correct this error.
We agree with the judge that it is unclear which of these employ-
ees are entitled to reinstatement and backpay, and that this issue
should be resolved at the compliance stage of this proceeding. In this
connection, we note that the predecessor employed approximately 23
cleaning and maintenance employees at Cadman Plaza, while the Re-
spondent has employed approximately 21 employees to perform this
same work at Cadman Plaza (three of whom also worked at Ja-
maica). We also note that the Respondent hired 10 predecessor em-
ployees. Thus, there are approximately 11 positions for 13
discriminatees. Since the numbers are inexact, we leave to compli-
ance the issue of how many discriminatees will be entitled to rein-
statement and backpay. We shall modify the judge’s recommended
Order to make clear that the reinstatement and make-whole provi-
sions are subject to this limitation.
We shall also modify the judge’s recommended Order to require
that the Respondent remove from its files any reference to the un-
lawful refusal to hire.
Laro Maintenance Corp. and Local 32B-32J, Serv-
ice Employees International Union, AFL–CIO;
and Amalgamated Local Union 355, Party to
the Contract
Amalgamated Local Union 355 and Local 32B-32J,
Service Employees International Union, AFL–
CIO; and Laro Maintenance Corp., Party to
the Contract. Cases 29–CA–15196 and 29–CB–
7890
September 20, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 5, 1993, Administrative Law Judge
Steven Davis issued the attached decision and erratum
dated March 2, 1993. The Respondent filed exceptions
and a supporting brief, and the General Counsel filed
an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions2 and to adopt the rec-
ommended Order as modified.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Laro
Maintenance Corp., Brooklyn, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraphs 2(a) and
(b).
‘‘(a) Subject to the limitation set forth in the
Board’s decision, offer the following employees imme-
diate and full employment to the positions in which
they would have been employed but for the discrimi-
nation against them, without prejudice to their seniority
or any other rights and privileges to which they would
have been entitled absent the discrimination against
them, discharging, if necessary, any employees hired in
their place, and make them whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, in the manner set forth in the
remedy section of the decision:
Aurelio Carrera Ray Marrow
Lucy Copland Josephine Moran
Edna Golden Lucy Ramirez
Jose Gonzalez Trufino Regalada
Leroy Harris Mario Rosado
Betty Jones Luis Quebrada
Felix Leon
‘‘(b) Remove from its files any reference to the un-
lawful refusal to hire the discriminatees named above
for its Cadman Plaza operation and notify them in
156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
writing that this has been done and that the refusal to
hire will not be used against them in any way.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
IT IS FURTHER ORDERED that Case 29–CB–7890 is
severed from Case 29–CA–15196 in accordance with
the informal settlement agreement.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to hire applicants for our
Cadman Plaza operation because they were represented
by Local 32B-32J, Service Employees International
Union, AFL–CIO or to avoid a bargaining obligation
with that union.
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, subject to the limitation set forth in the
Board’s decision, offer the following employees imme-
diate and full employment to the positions in which
they would have been employed but for the discrimi-
nation against them, without prejudice to their seniority
or any other rights and privileges to which they would
have been entitled absent the discrimination against
them, discharging, if necessary, any employees hired in
their place, and WE WILL make them whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them, less any net interim
earnings, plus interest:
Aurelio Carrera Ray Marrow
Lucy Copland Josephine Moran
Edna Golden Lucy Ramirez
Jose Gonzalez Trufino Regalada
Leroy Harris Mario Rosado
Betty Jones Luis Quebrada
Felix Leon
WE WILL remove from our files any reference to our
unlawful refusal to hire the individuals named above
and notify them in writing that this has been done and
that the refusal to hire will not be used against them
in any way.
LARO MAINTENANCE CORP.
Rosalind Rowen and Anthony Ambrosio, Esqs., for the Gen-
eral Counsel.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm, Esqs.),
of New York, New York, for Local 32B-32J.
Clifford P. Chaiet, Esq. (Kaufman, Naness, Schneider &
Rosensweig, P.C.), of Melville, New York, for the Re-
spondent.
Stephen H. Kahn, Esq. (Kahn, Opton, Handler, Gottlieb &
Feiler, Esqs.), of New York, New York, for Local 355.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on a
charge filed on October 11, 1990, by Local 32B-32J, Service
Employees International Union, AFL–CIO (Local 32B), a
complaint was issued by Region 29 of the National Labor
Relations Board on January 23, 1991, against Laro Mainte-
nance Corp. (Respondent).
The complaint, as amended prior to and at the hearing, al-
leges essentially that Respondent, on taking over a cleaning
contracting operation, failed to hire 13 named employees
who were previously employed by the predecessor contrac-
tor. The complaint alleges that they were refused hire be-
cause of their membership in Local 32B.
Respondent’s answer denied the material allegations of the
complaint, and on April 28 and June 1 through 4, 1992, a
hearing was held before me in Brooklyn, New York.
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 General Counsel and Respond-
ent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, having its principal
office and place of business at 21 Otis Street, West Babylon,
New York, has been engaged in providing maintenance, of-
fice cleaning, and related services at work sites within New
York State, including a Federal Government building located
at 225 Cadman Plaza, Brooklyn, New York, and at One Ja-
maica Center, Jamaica, New York (Jamaica).
Respondent asserted the affirmative defense that the Board
lacks jurisdiction over it because ‘‘the United States Govern-
ment controls significant terms and conditions of employ-
ment of the employees at issue herein.’’ This defense will be
discussed, infra.
However, Respondent admitted all the jurisdictional allega-
tions of the complaint, as follows. During the past year, Re-
spondent purchased and received at its West Babylon facility,
and at its other work sites within New York State, cleaning
supplies and other products valued in excess of $50,000, di-
rectly from other enterprises located within New York State,
each of which other enterprises had received those products,
valued in excess of $50,000, directly from points outside
New York State. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Respondent admits, and I also find that Local 32B, and
Amalgamated Local Union 355, are labor organizations with-
in the meaning of Section 2(5) of the Act.
157LARO MAINTENANCE CORP.
1 Evans’ testimony is unclear as to when he made such a com-
ment. He testified that in March or April 1992, he told Bertuglia that
such deductions were made only after Prompt lost the bid.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Prompt Maintenance Services, Inc. (Prompt) had contracts
with the United States Government, General Services Admin-
istration (GSA) to perform cleaning and general maintenance
work at a Federal building at 225 Cadman Plaza, Brooklyn
(Cadman Plaza). That building consists of a Federal court-
house and offices of the Internal Revenue Service (IRS). The
contracts with Prompt ran for about 6 years. Following the
expiration of the last contract, two extensions of the contract
were entered into, the last expiring on September 30, 1990.
Prompt had a collective-bargaining agreement with Local
32B covering its employees at Cadman Plaza.
In April 1990, GSA solicited new bids for the cleaning
contract. The bid solicitation package included the 1987 col-
lective-bargaining agreement between Local 32B and Prompt
covering the employees employed at Cadman Plaza. Pursuant
to the bid solicitation, bidders were required to pay the ‘‘pre-
vailing wage,’’ which, in this case, was the wages and bene-
fits set forth in that 1987 contract. The bid solicitation did
not require that the bidder hire the current cleaning employ-
ees or employ the same number of employees as the former
contractor. The contract did require, however, that ‘‘initially,
not less than 50 percent of the staff shall be trained and ex-
perienced cleaning personnel.’’
Respondent submitted its bid, and on May 10, 1990, it was
determined to be the successful bidder, with a bid of $60,875
per month. The bid submitted by Prompt was for a sum of
about $80,000 per month. On September 7, 1990, GSA for-
mally awarded the contract to Respondent.
Robert Bertuglia, Respondent’s president, testified that on
September 17, he told Larry Tomscha, a GSA official, that
he intended to interview the current Prompt employees, re-
tain about five of them, and ‘‘get rid of the dead wood.’’ In
addition, he expected to bring in some of his current employ-
ees from Jamaica who already had Government identifica-
tion. Tomscha told Bertuglia that Local 32B had a contract
with Prompt. Bertuglia replied that his union was Local 355.
Respondent’s answer admitted that on about September 17,
Local 32B requested that Respondent continue to employ or
hire those employees of Prompt employed at Cadman Plaza.
Bertuglia requested and received a ‘‘walk-through’’ in-
spection of Cadman Plaza on September 18, 1990. Gertrude
Joyner, the building inspector for GSA assigned to Cadman
Plaza, conducted the tour. According to her, she mentioned
the names of various employees as being ‘‘good workers.’’
Bertuglia did not take any notes of their names. They also
saw two Prompt employees who were asleep. Bertuglia testi-
fied that he had determined not to employ any of Prompt’s
employees. He further stated that it was Respondent’s prac-
tice to employ new workers so that they could be trained in
its methods, whereas hiring the same workers would cause
a perpetuation of their ‘‘old habits.’’ Emily McCollum, a
Prompt employee hired by Respondent, testified that Re-
spondent’s supervisor, Wally Perkins, told her that if he had
a choice, he would not have hired any former Prompt em-
ployees because anyone who has been working in a building
for a long time becomes set in their ways.
Following the walk-through, Bertuglia met with Charles
Evans, the Cadman Plaza building manager employed by
GSA, and with his assistant, Russell Anthony. Bertuglia in-
formed Evans that Respondent would be performing the con-
tract with about 11 employees. When Evans remarked that
Prompt had 21 employees at work in the building, Bertuglia
replied that Respondent would be using more modern equip-
ment and specialized crews which would obviate the neces-
sity for employing many employees on a regular, day-to-day
basis. Evans responded that the cleaning contract was a per-
formance contract, and not a manpower contract, so that if
the contractor was able to perform the contract with fewer
employees, it could do so.
According to Bertuglia, Evans told him at that meeting
that GSA had made many deductions from Prompt’s monthly
fee.1 At that meeting, Evans told Bertuglia that Local 32B
represented the cleaning employees employed by Prompt at
Cadman Plaza. Bertuglia told him that Respondent had no
agreement with Local 32B, and that it would be bringing in
all new workers. He testified that he wanted to bring in new
employees because of the deductions imposed on Prompt,
which Bertuglia attributed to improper work by the cleaning
crew, and because of his observation of two sleeping Prompt
employees. Evans replied that before any changes in employ-
ees were made they should meet again because certain judges
requested that the people who cleaned their areas be retained.
Evans told Bertuglia that it would be ‘‘advantageous’’ for
him to hire as many of the Prompt employees as possible.
Evans also told him to interview all the Prompt workers.
Following that meeting, Evans directed Joyner to prepare
a list of the 10 best employees employed by Prompt at
Cadman Plaza. Evans did not know whether the judges’ re-
quests played a part in the selection of the 10. Joyner pre-
pared a list, and at a meeting held on about September 21,
Evans presented the list to Bertuglia, saying that he needed
to retain those named. The list is entitled ‘‘better cleaners
from Prompt Maintenance.’’
On September 25, Respondent’s representatives distributed
applications for employment to Prompt’s employees at
Cadman Plaza. Virtually no questions were asked orally of
those employees concerning their backgrounds or experience.
This application process was a gesture in futility as a deci-
sion had already been made that only the 10 employees rec-
ommended by GSA would be hired by Respondent for
Cadman Plaza. Bertuglia stated that he hired the 10 former
Prompt employees only because Evans asked him to, and he
sought to follow his instructions because Evans would be au-
thorizing payment to Respondent each month.
On September 28, the last day of the Prompt contract, a
list of the 10 employees who would be hired by Respondent
was posted. Those 10 were the same as on the list given to
Bertuglia by Evans.
Certain of the employees not hired by Respondent had
been employed for a number of years by Prompt and its
predecessors at Cadman Plaza, and had good work records.
Respondent did not contact Prompt concerning the qualifica-
tions of its employees.
Respondent had a collective-bargaining agreement with
Local 355 covering its employees employed in Jamaica. The
contract ran from August 1, 1990, to July 1, 1993.
158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Perkins and Vacca are, respectively, Respondent’s project man-
ager and supervisor. Both are admitted supervisors.
On September 28, 1990, Respondent entered into a supple-
mental agreement with Local 355, covering its Cadman Plaza
employees and also its Jamaica employees. Respondent’s
president, Bertuglia, testified that he extended recognition to
Local 355 for the Cadman Plaza employees at that time, not-
withstanding that its contract with GSA, had not yet begun
for the work at Cadman Plaza, and no employees had begun
work for Respondent at that location, because a Local 355
business agent told him that Cadman Plaza was an ‘‘exten-
sion’’ of Jamaica.
The complaint in this case originally contained allegations
concerning the recognition of Local 355, set forth above.
However, on the opening of the hearing herein, Respondent
admitted those allegations of the complaint which asserted
that (a) Local 32B represented a majority of employees of
Respondent and was the exclusive representative of Respond-
ent’s employees and (b) Respondent recognized Local 355
and executed a contract with it notwithstanding that Local
355 did not represent a majority of its employees and that
Local 32B was the exclusive collective-bargaining represent-
ative of its Cadman Plaza employees. Accordingly, on the
opening of the hearing herein, Respondent entered into an in-
formal settlement agreement pursuant to which it agreed to
cease recognizing and applying its contract with Local 355
to the Cadman Plaza employees, and pursuant to which it
agreed to recognize and bargain with Local 32B for its
Cadman Plaza employees.
Facts Concerning Jurisdiction over Respondent
The contract between Respondent and GSA states that
‘‘the contractor shall provide all management, supervision,
labor, material, supplies, and equipment . . . and shall plan,
schedule, coordinate and assure effective performance of all
services . . . .’’ The contract further states in section C,
paragraph 4, that:
The Contractor shall arrange for satisfactory super-
vision of the contract work. The Contractor or his su-
pervisors shall be available at all times, when the con-
tract work is in progress . . . . It is the policy of GSA
that Government direction or supervision of the Con-
tractor’s employees, directly or indirectly, shall not be
exercised.
Section C, paragraph 6B, states that ‘‘all personnel will re-
ceive close and continuing first-line supervision by the con-
tractor.’’
Section H, paragraph 3, states that ‘‘the Contractor shall
be responsible for maintaining satisfactory standards of em-
ployee competency, conduct, appearance, and integrity and
shall be responsible for taking such disciplinary action with
respect to his employees as may be necessary.’’
Ralph Caizzo, the contracting officer for GSA, stated that
the GSA staff at Cadman Plaza does not have the power to
hire, discharge, discipline, or transfer a contractor’s employ-
ees, and no power to make recommendations concerning
those functions. However, as set forth above, GSA’s official,
David Evans, did make a strong recommendation to Re-
spondent that 10 named Prompt employees be hired by it.
That recommendation was followed. In addition, GSA re-
quires fingerprint and security checks of employees em-
ployed by Respondent.
GSA did not have any involvement in the negotiation of
the collective-bargaining agreement between Local 355 and
Respondent, or the attempted extension of that agreement to
the Cadman Plaza employees. Nor did GSA play a role in
the negotiation or administration of the contract between
Local 32B and Prompt. Caizzo further testified that GSA
does not have a right of final approval over union contracts
negotiated by its contractors.
GSA does require its contractors to meet the prevailing
wage standards, which has been defined as the current col-
lective-bargaining agreement’s provisions.
Luis Quebrada
The amended complaint alleged that Luis Quebrada, an
employee of Prompt, was refused hire by Respondent on
about September 28, 1990. Respondent denied that allega-
tion, and asserts that he was a supervisor of Prompt.
Quebrada worked for Prompt as an assistant superintend-
ent at Cadman Plaza from 1989 until its contract ended in
September 1990. As an assistant superintendent, he helped
Superintendent John Hodges manage the building. He uti-
lized a list of employees to call if replacements were needed.
Quebrada made the calls to Spanish-speaking employees, and
if Hodges was absent. Quebrada told Hodges how many re-
placements were needed, and Hodges told him who to call.
Quebrada did not decide who on the list should be called.
Quebrada stated that while employed for Prompt, an incident
occurred in which employee Darlene Lane called him and
said that she would be arriving late to work. She never ap-
peared, and he reported this incident to Hodges. Quebrada
testified that Hodges told him to tell Lane to see him, or told
him to tell Lane that she was suspended. Quebrada testified
that he did not impose discipline on employees. Rather, he
reported any incidents to Hodges, and that Hodges decided
on appropriate action.
Quebrada also performed physical work for Prompt. He
buffed floors and cleaned carpets. He helped Hodges with
the garbage, and also helped him perform periodic cleaning
such as window cleaning. He stated that he performed phys-
ical work nearly the entire day. Quebrada earned $1.12 more
per hour than Hodges, which he attributed to his staying at
work later.
Former Prompt employee Jose Gonzalez testified that
Quebrada did not grant time off to any workers, issue any
warnings, or assign or reassign him to work. However, if
Quebrada needed help unloading a truck, he asked Gonzalez
to help. As a supervisor, Quebrada was responsible for ensur-
ing that the work was done in the building, and he walked
around the building ‘‘checking’’ people. Gonzalez saw
Quebrada perform manual work such as buffing floors.
Two to three days before Respondent began its contract at
Cadman Plaza, Quebrada completed an application at Re-
spondent’s request. Respondent’s officials Wally Perkins and
Louis Vacca2 asked him if he knew how to buff floors and
perform other cleaning. He said he did, however, he was not
offered a job with Respondent.
On October 1, the first day that Respondent began work
at Cadman Plaza, Quebrada asked Perkins if any jobs were
available at Cadman Plaza. Perkins said no. Quebrada then
159LARO MAINTENANCE CORP.
said that he had personal problems and needed a job. He was
asked about his work experience, and was told to report to
work at Jamaica the following day. He did so, and worked
at Jamaica for 2 days. Quebrada quit after working 2 days,
and joined the picket line of the former Prompt employees
at Cadman Plaza. Quebrada stated that he quit the job be-
cause he was overworked, received less pay than at Prompt,
and worked fewer hours. He told Perkins, but not his imme-
diate supervisor, that he was quitting. After 1 week,
Quebrada called Respondent and told Vacca that he had not
yet received his pay for the 2 days he worked. Vacca said
that he had ‘‘nerve’’ asking for his pay. Quebrada asked for
the return of his former job at Cadman Plaza. Vacca refused,
saying that he had no positions for anyone who worked for
Prompt.
Gertrude Joyner, the building inspector for GSA, testified
that following Quebrada’s quitting, Perkins told her that
someone in Respondent’s office told him not to hire any
other former Prompt employees because of the situation con-
cerning Quebrada.
Jose Gonzalez
Jose Gonzalez was employed by Prompt until its contract
ended in September 1990. He completed an application for,
but was not hired by Respondent. On October 1, he returned
to Cadman Plaza to retrieve letters of commendation regard-
ing his work performance. Quebrada accompanied him at
that time.
Joyner testified that she saw Gonzalez enter the building
on that occasion, and she heard Respondent’s supervisor
Vacca ask Gonzalez: ‘‘Do you want to work?’’ Joyner stated
that Gonzalez answered, ‘‘no,’’ saying that he just wanted
his papers. In her pretrial affidavit, Joyner stated that ‘‘Jose
Gonzalez was offered a job with Laro and I heard him say-
ing ‘‘no’’ to Vacca.’’
Gonzalez denied being asked anything by Vacca on that
occasion, and denied being asked if he wanted work.
Quebrada testified that he heard Vacca ask Gonzalez if he
was there to apply for a job, or looking for an application
for a job. Gonzalez said that he was not there for such a rea-
son. Quebrada denied that anyone offered Gonzalez a job at
that time. Vacca did not testify.
Respondent’s Employees at Cadman Plaza
In addition to the 10 former employees of Prompt, Re-
spondent employed 8 other employees in its startup at
Cadman Plaza. That number includes the night crew which
performed floor stripping.
In view of General Counsel’s allegation that other Prompt
employees were discriminatorily refused hire, it is necessary
to examine who was employed in their place.
Permanent Transfers from Jamaica
Four employees were transferred from Respondent’s Ja-
maica operation: Foi Cahlou, Vincent Luis, Yonette
Mathurin, and Kenneth Triblet. Cahlou, described as a very
good worker at Jamaica by Supervisor Amar (Eddie)
Ramdeo, requested and was granted a transfer to Cadman
Plaza. Similarly, Ramdeo stated that Triblet was a good
worker who apparently requested a transfer to Cadman Plaza
to earn more money.
Respondent’s president, Bertuglia, testified that one of the
reasons that Luis and Mathurin were transferred was that
their supervisor at Jamaica was unhappy with their work.
Ramdeo testified that Luis frequently did not complete his
assignments and made ‘‘frivolous’’ excuses that too many
people were in the bathroom, preventing him from cleaning
it. He also spent much of his time speaking to his friends
instead of working. Ramdeo reported these shortcomings to
Respondent’s officials, one of whom, Perkins, told him to
give Luis a chance. Ramdeo further stated that Luis was a
good worker when under constant supervision. Ramdeo rec-
ommended his transfer because he was not happy with his
work, and because he believed that Luis would have more
respect for Supervisor Perkins at Cadman Plaza than he had
for him. Ramdeo attributed Luis’ poor work habits to his
lack of respect for him (Ramdeo) since Ramdeo was pro-
moted from a cleaner’s position at a time when he was a co-
worker of Luis.
Ramdeo further testified that he requested that Mathurin
be transferred because she spent too much time speaking to
her boyfriend instead of working. Ramdeo reported this to
Respondent’s official Perkins. In April and August 1990,
Mathurin was given written warnings for excessive lateness
and absenteeism. On September 10, 1991, she was termi-
nated for poor attendance and for insubordination—‘‘answer-
ing back’’ Supervisor Perkins when he asked her to perform
a task.
Bertuglia testified that subsequent to Mathurin’s discharge,
she called him each day for 2 weeks, pleading for reinstate-
ment, and promising to do better. Bertuglia told her that her
job at Jamaica was filled but that she could work at Cadman
Plaza. She started work at Cadman Plaza when Respondent
began its contract there.
Respondent’s Jamaica Employees Who Allegedly Also
Worked at Cadman Plaza
Bertuglia testified that on commencing operations at
Cadman Plaza, Respondent’s six or seven employees who
worked at Jamaica, split their worktime between Jamaica and
Cadman Plaza, working at both locations. Those workers in-
cluded Sebatine Acosta, Mario Marqez, and Amar (Eddie)
Ramdeo. Acosta, however, testified that prior to giving his
affidavit to a Board agent, he was told by Respondent’s su-
pervisor, Louis Vacca, that Respondent was being sued by
another union, and Respondent needed two of its employees
to say that they worked at both Jamaica and at Cadman
Plaza. Vacca told him that he (Acosta) and Ramdeo were
those selected. Acosta testified that he was instructed by
Vacca to tell the Board agent that he worked the entire
month of September (later changed to October) at Cadman
Plaza with Ramdeo. In fact, Acosta testified, he only worked
at Cadman Plaza one night, and worked the rest of the time
at Jamaica, with Ramdeo.
Indeed, Ramdeo testified that Acosta worked at Cadman
Plaza for only 1 night, but Ramdeo insisted that he (Ramdeo)
performed work at Cadman Plaza 3 to 4 days per week in
October 1990.
New Hires
Four new hires were employed by Respondent at Cadman
Plaza: Ramsey Larinsanpac, Savitri Gayah, Rudolph
160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The names of Gayah, Rampersad, and Scarbrough are spelled as
they appear on their job applications.
Rampersad, and Michael Scarbrough.3 They were hired after
being interviewed on September 25. Bertuglia admitted that
three of the four had no prior relevant experience.
Gayah’s application states that she has special qualifica-
tions as a receptionist, but no job experience. However, Re-
spondent’s contract specialist, Roger Durbal, was related to
Gayah, and recommended her as being a good housekeeper.
Rampersad’s application listed his experience as driver,
construction laborer, and helper.
Scarbrough was hired by Respondent on the recommenda-
tion of his friend, Norman Thomas, a former Prompt em-
ployee, who was hired by Respondent. Scarbrough’s applica-
tion states that he had experience in factory and office clean-
ing, but the positions he lists as having held were data entry
operator and research and credit rating operator.
No evidence was offered as to the prior work experience
of Larinsanpac.
The Floating Night Crew
Bertuglia testified that on the start of work at Cadman
Plaza, Respondent employed a night crew consisting of three
to six employees who stripped floors. They worked about 2
to 3 nights per week for the first week to 3 weeks in order
to bring the building’s floors to a condition where they could
be buffed properly. These employees were not members of
any labor organization, they did not receive the prevailing
wage, but received certain sick and medical benefits from
Local 355.
Analysis and Discussion
The Jurisdictional Question
Respondent asserts that the Board does not have jurisdic-
tion over it because the ‘‘United States Government controls
significant terms and conditions of employment of the em-
ployees at issue herein.’’
In National Transportation Service, 240 NLRB 565
(1979), the Board discussed the question of an employer’s
‘‘shared exemption’’ with an exempt entity from the cov-
erage of the Act.
The Board held that the test to be applied is ‘‘whether the
employer retained sufficient control over the employment
conditions of its employees to enable it to engage in effective
or meaningful bargaining with a labor organization.’’ Res-
Care, Inc., 280 NLRB 670, 672 (1986).
First, it is clear that the contracting agency, GSA, is an
exempt entity under Section 2(2) of the Act since the term
‘‘employer’’ does ‘‘not include the United States or any
wholly owned Government corporation.’’
Here, essentially the only aspect of GSA’s control over
Respondent’s labor relations policies that may be found is
Evans’ strong urging that it hire 10 named former Prompt
employees. Notwithstanding Respondent’s determination that
it would not hire any Prompt workers, Bertuglia believed that
he had no choice—he wanted to satisfy the person who was
signing his company’s checks—and therefore hired the 10 in-
dividuals.
Even as to the recommendation for hire of the 10 workers,
however, there is some question as to whether Evans’ actions
represent GSA policy. As set forth above, the contract be-
tween GSA and Respondent provides that Respondent is re-
sponsible for providing the ‘‘labor’’ for the performance of
the contract. Moreover, Respondent hired or transferred the
remainder of its complement of employees for Cadman Plaza
without any involvement of GSA, aside from providing back-
ground and fingerprint reports.
In addition, GSA has no involvement in the negotiation or
approval of collective-bargaining agreements between the
contractor and the labor organization representing its employ-
ees, and its only requirement is that the contractor pay the
prevailing wage to its employees. The prevailing wage is the
collective-bargaining agreement.
Aside from requiring background security checks of Re-
spondent’s employees, including fingerprint records, and the
inspection of the cleaning work by an inspector who issues
deduction letters for improper performance, it cannot be said
that GSA controls any aspect of the terms and conditions of
employment of Respondent’s employees. Long Stretch Youth
Home, 280 NLRB 678 (1986).
Accordingly, Respondent is subject to the jurisdiction of
the Act.
The Status of Luis Quebrada as an Employee
Quebrada worked for Prompt as an assistant superintend-
ent at Cadman Plaza. He helped Superintendent Hodges man-
age the building. Quebrada called in replacement employees
who were Spanish speaking, and in Hodges’ absence he
called in the non-Spanish-speaking workers too. However, he
exercised no independent judgment when making such calls.
He told Hodges how many replacements were needed, and
Hodges told him who to call in. He did not impose discipline
on any employees, but merely reported incidents of poor
work performance to Hodges.
Quebrada performed physical work for Prompt. He buffed
floors and cleaned carpets. He helped Hodges with the gar-
bage, and also helped him perform periodic cleaning such as
window cleaning. He stated that he performed physical work
nearly the entire day. The only evidence of Quebrada’s pos-
sible supervisory authority is the fact that Quebrada earned
$1.12 more per hour that Hodges. This was explained by his
being employed longer hours.
Inasmuch as I find that Quebrada did not possess any su-
pervisory authority, and exercised none, I accordingly find
and conclude that he was an employee of Prompt on about
September 28, 1990, and that Respondent refused to hire him
for its Cadman Plaza operation.
The Refusal to Hire the 13 Former Employees
of Prompt
The complaint alleges that Respondent refused to hire 13
former employees of Prompt when it commenced operations
at the Cadman Plaza premises. General Counsel alleges that
those employees were not hired because Respondent sought
to discriminate against them because of their membership in
Local 32B, and also because it sought to avoid hiring a ma-
jority of employees, which would therefor impose a bargain-
ing obligation on it.
As discussed above, Respondent did hire 10 former
Prompt employees for its Cadman Plaza operation at the in-
sistence of GSA official Evans. The question, therefore, was
161LARO MAINTENANCE CORP.
its motivation in not hiring the remaining 13 former Prompt
employees.
Respondent denies that it failed to hire the 13 employees
because of any improper motivation.
A new owner of an enterprise is not obligated to hire any
of its predecessor’s employees, but may not refuse to hire the
predecessor’s workers solely because they were represented
by a union or to avoid having to recognize a union. NLRB
v. Burns Security Services, 406 U.S. 272 (1972); Howard
Johnson’s v. Detroit Local Joint Executive Board, 417 U.S.
249 (1974). As the Board stated in U.S. Marine Corp., 293
NLRB 669, 670 (1989):
The Board has held that the following factors are
among those that establish that a new owner has vio-
lated Section 8(a)(3) in refusing to hire employees of
the predecessor: substantial evidence of union animus;
lack of a convincing rationale for refusal to hire the
predecessor’s employees; inconsistent hiring practices
or overt acts or conduct evidencing a discriminatory
motive; and evidence supporting a reasonable inference
that the new owner conducted its staffing in a manner
precluding the predecessor’s employees from being
hired as a majority of the new owner’s overall work
force to avoid the Board’s successorship doctrine.
General Counsel relies on facts involving Quebrada in
support of a finding of union animus. Quebrada gave
uncontradicted testimony, which I credit, that when he called
Respondent and asked for his pay for work performed in Ja-
maica, Respondent’s supervisor, Vacca, told him that he had
‘‘nerve’’ asking for his pay. When Quebrada then requested
a job at Cadman Plaza, Vacca refused, saying that he had no
positions for anyone who worked for Prompt.
Gertrude Joyner, the building inspector for GSA, testified
that following Quebrada’s quitting, Perkins told her that
someone in Respondent’s office told him not to hire any
other former Prompt employees because of the situation con-
cerning Quebrada.
Both statements may relate to Quebrada’s joining the pick-
et line at Cadman Plaza following his quit from the Jamaica
position. Such statements may also relate, as asserted by Re-
spondent, to its displeasure with Quebrada for quitting his Ja-
maica position without notice to his immediate supervisor.
However, there was no testimony that Respondent was upset
at Quebrada for quitting. Moreover, Quebrada stated that he
told Perkins that he was quitting. In any event, these state-
ments indicate a clear desire not to employ any former
Prompt employees unless strongly urged to do so, as was
done by GSA Official Evans.
General Counsel also argues that the manner in which Re-
spondent chose employees for hire provides a showing of
animus, and establishes the motivation which caused Re-
spondent to refuse to hire the remainder of Prompt’s former
employees. Houston Distribution Service, 227 NLRB 960
(1977). The Board has held that a prima facie case of dis-
criminatory motivation may be supported by consideration of
the lack of any legitimate basis for a respondent’s actions.
Weco Cleaning Specialists, 308 NLRB 310 at fn. 4 (1992).
Respondent was not required to employ any of the former
Prompt employees, or hire a sufficient number of such em-
ployees so that its work force would be comprised of a ma-
jority of its predecessor’s employees, as long as it did not
act unlawfully.
[Respondent] was only required to consider and se-
lect [the former Prompt employees] on the same lawful
basis utilized with respect to others it considered and
either selected or rejected. [Daka, Inc., 286 NLRB 548,
559 (1987).]
In other words, were ‘‘all applicants for employment . . .
judged by the same standard, with the failure to hire the al-
leged discriminatees reflecting no more than equal applica-
tion of this standard?’’ Houston Distribution, supra at 966.
General Counsel’s Prima Facie Case
In my opinion, it is clear that Respondent was motivated
in its hiring decisions by a desire to avoid Local 32B.
Respondent had a collective-bargaining agreement with
Local 355 at its Jamaica location. Bertuglia testified that he
intended to, and in fact did apply the Local 355 contract to
the Cadman Plaza location regardless of the number of in-
cumbent employees represented by Local 32B it hired. In
fact, it precipitously entered into a supplemental agreement
with Local 355, extending that contract to Cadman Plaza, ef-
fective September 28, 1990, when it knew that a majority of
its work force was comprised of former Prompt employees
who were represented by Local 32B.
Respondent’s amended answer admitted that it recognized
Local 355 and executed a collective-bargaining agreement
with that union at a time when it did not represent an
uncoerced majority of the employees employed at Cadman
Plaza. In fact, Respondent had an obligation to bargain with
Local 32B upon its hire of a majority of Prompt’s employ-
ees. Therefore, its accretion defense, which it utilized to sup-
port its failure to recognize Local 32B, had no validity. Nor
was the accretion argument asserted in good faith, as I credit
the testimony of Acosta that he was coached by Respond-
ent’s supervisor to give testimony that did not accord with
the truth concerning his employment at both locations.
I believe that the facts support a finding that Respondent
did not intend to hire any of the former Prompt employees
because of their affiliation with Local 32B. Its past practice
involving the hire of employees being represented by other
labor organizations supports this finding. There was evidence
that Respondent succeeded to two cleaning contractor oper-
ations. The first one, involving the Jamaica contract, in-
volved a nonunion operation, as to which Respondent hired
one-third of the incumbent employees. The other was
Dowling College where another union, Local 424, rep-
resented the employees. Respondent also did not want to hire
any of the incumbent employees at Dowling. When Dowling
insisted that Respondent hire all of the incumbents, it did so.
Similarly, here Respondent hired 10 former Prompt em-
ployees only when GSA Official Evans strongly rec-
ommended that it do so. Accordingly, where a nonunion op-
eration was involved, such as at Jamaica, Respondent volun-
tarily hired one-third of the incumbent employees. Where an
outside labor organization was involved, such as at Dowling,
it sought to avoid hiring any of them. The fact that it hired
one-third of the incumbent employees at Jamaica undercuts
its position that it likes to ‘‘start fresh’’ with a new com-
plement of employees. It therefore becomes plain that it will
162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘start fresh’’ only where a labor organization represents the
employees of the contractor it is succeeding.
In this connection, I do not credit Bertuglia’s testimony
that he told GSA representative Tomscha on September 17
that he intended to hire five Prompt employees and get rid
of the ‘‘dead wood.’’ This would be inconsistent with its
prior policy of not hiring any of the incumbent employees
in order to ‘‘start fresh.’’ In addition, Respondent did not
know at that time how many, if any, of the Prompt employ-
ees were ‘‘dead wood.’’
Respondent’s argument that it hired the ‘‘better’’ incum-
bent employees at its Jamaica operation on taking over that
contract does not help its position, particularly where, as
here, GSA inspector Gertrude Joyner pointed out good work-
ers on her walk-through. Although Respondent’s official
Bertuglia disputes that testimony, nevertheless Respondent
did not seek any information from Prompt as to who the
‘‘better’’ workers among Prompt’s employees, other than the
10, were. Nor did it ask them to demonstrate their cleaning
skills, as it usually does, or conduct any meaningful inter-
views with any of them.
There is some question as to when Bertuglia was told that
GSA had taken deductions from Prompt’s contract due to
poor cleaning. Bertuglia testified that he was told this at the
meeting on September 18. Evans was vague as to when he
imparted this information to Bertuglia. Even assuming that
Bertuglia was told of the deductions at the September 18
meeting, and as a result of being told that, along with his
observation of two sleeping employees, he then decided not
to hire any Prompt employees because of those facts, it must
have appeared strange to him that Evans was recommending
10 Prompt employees. Although these were labeled ‘‘better’’
employees, this was not to imply that those were the only
good workers employed at Cadman Plaza. It would have
been unreasonable for Bertuglia to have blamed all the
Prompt employees for the deductions, especially since he
was not told specifically why the deductions were made or
who was responsible. Similarly, he did not know the identity
of the sleeping employees or ask for an explanation as to
why they were sleeping or inquire whether they were on a
break.
I find that Bertuglia did not place much emphasis on
whether the employees hired for Cadman Plaza were good or
not since he hired people with no experience, and transferred
two with poor disciplinary records, including one who had
been discharged only 3 weeks before.
In contrast, Respondent had a pool of experienced employ-
ees in the incumbent Prompt workers. It thus cannot be said
that Respondent considered and selected its employees ‘‘on
the same lawful basis utilized with respect to others it con-
sidered and either selected or rejected,’’ particularly with re-
spect to Luis, Mathurin and the inexperienced new hires.
Daka, Inc., supra.
In this regard, it is important to note that employee
Quebrada, formerly employed by Prompt at Cadman Plaza,
was apparently considered qualified enough to be hired by
Respondent for a position at Jamaica and was hired on Octo-
ber 1 for a position at Jamaica. However, when he inquired
on October 1 about a position at Cadman Plaza, he was told
that there were no positions available at that location. This,
at a time when Respondent hired new employees with no ex-
perience for Cadman Plaza. It is clear that Respondent did
not want to hire any more of Prompt’s incumbent employees
than it believed it was required to by GSA, in an effort to
avoid a bargaining obligation with Local 32B.
‘‘Despite the presence of a pool of experienced workers,
respondent went to considerable length to replace the union
employees with entirely new workers-most of whom had no
previous experience . . . .’’ NLRB v. Foodway of El Paso,
496 F.2d 117 (5th Cir. 1974).
I therefore find that the evidence establishes that Respond-
ent embarked upon a plan to avoid hiring any former Prompt
employees so that it could continue to recognize and deal
with Local 355, and avoid recognizing Local 32B. If it had
not been forced to hire 10 Prompt employees by GSA it is
clear that it would not have hired any of them.
When viewed against the criteria required to be observed
in making hiring decisions—to consider and select the
former Prompt employees on the same lawful basis utilized
with respect to others it considered and either selected or re-
jected—I must find that Respondent did not satisfy that
standard. Thus, it did not consider the 13 remaining incum-
bent, experienced Prompt employees. Although it gave them
all applications, it conducted no interviews of substance, did
not inquire of GSA or the prior contractor as to their work
performance, and in fact had predetermined not to hire any
of them. In contrast, Respondent hired new employees with
no experience, transferred one employee from its Jamaica lo-
cation who was recommended for transfer for disciplinary
reasons, and rehired an employee who was discharged only
3 weeks before for poor work.
Accordingly, I find that the General Counsel has made a
prima facie showing sufficient to support the inference that
a motivating factor for Respondent’s failure to hire the 13
former Prompt employees was its determination not to be-
come obligated to bargain with Local 32B, and because of
their membership in Local 32B. Wright Line, 251 NLRB
1083 (1980).
I also find that Respondent has not carried its burden of
proving that any of the 13 employees would not have been
hired in the absence of their activities in behalf of, or mem-
bership in, Local 32B.
Bertuglia’s stated reasons for not wanting to hire any
former Prompt employees were as follows:
Bertuglia wished to start the new contract with new,
different and ‘‘hopefully’’ better employees. He stated
that he was aware that Prompt had suffered deductions
from its contract due to improper cleaning. In addition,
he observed 2 employees of Prompt asleep during his
walk-through of the premises in mid-September, 1990.
However, one of the ‘‘better’’ employees was Yonette
Mathurin, Respondent’s employee who had received warn-
ings in April and August 1990, and was fired for excessive
absenteeism and insubordination in mid-September 1990
from her position in Jamaica. Mathurin was then rehired to
work at Cadman Plaza. Another was Vincent Luis, who was
transferred from Jamaica for disciplinary reasons.
Bertuglia also stated that he hoped the four newly hired
employees would be better than Prompt’s employees, al-
though three of them had no relevant work experience. How-
ever, he did not seek any information concerning the work
performance of the Prompt employees.
163LARO MAINTENANCE CORP.
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.46 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
When the transfer of disciplinary problem Luis, and the re-
hire of discharged employee Mathurin, and the three newly
hired employees with no experience is considered in relation
to the pool of experienced workers then employed at Cadman
Plaza, who Respondent refused to consider, it becomes obvi-
ous that Respondent had other than valid business reasons
for refusing to hire the remaining incumbent employees.
Its contentions that it did not wish to hire any of the in-
cumbents because of the deductions taken from Prompt’s
contract and because two workers had been asleep during his
walk through, should not have caused Bertuglia to paint with
a broad brush all of the incumbent employees. He sought no
information as to the identity of those who were asleep, nor
did he seek information as to the nature of the deductions
or who was responsible.
I accordingly conclude that Respondent has not shown that
any of the 13 former Prompt employees would not have been
hired even in the absence of their activities in behalf of, or
membership in, Local 32B.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 32B and Amalgamated Local Union 355 are labor
organizations within the meaning of Section 2(5) of the Act.
3. By refusing to hire the following employees for its
Cadman Plaza operation on September 28, 1990, because
they were represented by Local 32B, and in order to avoid
an obligation to bargain with Local 32B, the Respondent has
violated Section 8(a)(3) and (1) of the Act: Aurelio Carrera,
Lucy Copland, Edna Golden, Jose Gonzalez, Leroy Harris,
Betty Jones, Felix Leon, Ray Marrow, Josephine Moran,
Lucy Ramirez, Trufino Regalada, Mario Rosado, and Luis
Quebrada.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it cease and de-
sist therefrom and take certain affirmative action designed to
effectuate the Act.
I shall recommend that Respondent offer to the 13 em-
ployees formerly employed by Prompt Maintenance at the
Cadman Plaza location to whom it did not offer employment,
listed below, immediate and full reinstatement, without preju-
dice to their seniority and other rights previously enjoyed,
discharging if necessary any employees hired in their place.
In this connection, I find that Jose Gonzalez is also entitled
to an offer of reinstatement. Although Joyner’s affidavit stat-
ed that Gonzalez was offered reinstatement on October 1,
1990, such evidence was contradicted by the testimony of
Joyner, Gonzalez, and Quebrada. It is clear that following
September 28, no Prompt employees were offered hire at
Cadman Plaza. In fact, Quebrada, who requested hire by Re-
spondent on the same day as Gonzalez, was refused hire for
Cadman Plaza, and was instead hired for Jamaica. I accord-
ingly cannot find that Gonzalez was offered reinstatement for
Cadman Plaza on October 1.
I shall also recommend that Respondent make whole the
above-named employees for any loss of earnings and benefits
they may have suffered by reason of Respondent’s unlawful
refusal to employ them. Backpay shall be computed in the
manner set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and interest thereon shall be computed in the manner
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
I note in connection with the above recommended rein-
statement and backpay order, that the record discloses that
Respondent operated its Cadman Plaza operation with fewer
than the 21 employees employed by Prompt. Accordingly,
since the record is incomplete as to the number of employees
employed by Respondent at Cadman Plaza, and since the
question of who among the 10 former Prompt employees
should be reinstated to the available positions at Cadman
Plaza remains open, I shall leave to the compliance stage of
this case, the resolution of those issues.
On the foregoing findings of fact, conclusions of law, and
on the entire record, I issue the following recommended4
ORDER
The Respondent, Laro Maintenance Corp., Brooklyn, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire employees for its Cadman Plaza oper-
ation because they were represented by Local 32B, Service
Employees International Union, AFL–CIO, or in order to
avoid a bargaining obligation with that union.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) In the manner described in the remedy section of this
decision, offer to the following employees formerly em-
ployed by Prompt Maintenance Company immediate and full
reinstatement, without prejudice to their seniority and other
rights previously enjoyed, discharging if necessary any em-
ployees hired in their place:
Aurelio Carrera Lucy Copland
Ray Marrow Edna Golden
Josephine Moran Jose Gonzalez
Lucy Ramirez Leroy Harris
Trufino Regalada Betty Jones
Mario Rosado Felix Leon
Luis Quebrada
(b) Make whole the above-named employees for any loss
of earnings and benefits they may have suffered by reason
of Respondent’s discrimination against them, as described in
the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at is West Babylon, New York location, and at
its Cadman Plaza facility copies of the attached notice
164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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.’’
marked ‘‘Appendix.’’5 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are customar-
ily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.