Rouse Co.

National Labor Relations Board - Board Decisions

Feb 14, 1974

209 N.L.R.B. 37 (N.L.R.B. 1974)

GREENGATE MALL, INC.
Greengate Mall, Inc., a Subsidiary of the Rouse
Company and International Union of Operating
Engineers, Local 95-95A, AFL-CIO. Case
6-CA-6260
February 14, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On April 27, 1973, Administrative Law Judge
Milton Janus Issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief,' and General Counsel filed
the brief that he had previously submitted to the
Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended,, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings,
findings,2 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The complaint charges that Respondent, owner of
a shopping mall, engaged in conduct violative of
Section 8(a)(3), (5), and (1) of the Act in the course of
taking over and assuming performance of a mainte-
nance service contract which it had previously had
with Hattis Service Company (Hattis). Respondent
served Hattis with notice of its intent to terminate the
contract in May 1972, to be effective as of August 18,
1972, and it commenced its performance of the
maintenance services involved on the latter date. As
indicated more fully in the Decision of the Adminis-
trative Law Judge, below, the alleged 8(a)(3) viola-
tions involved Respondent's failure and refusal to
hire any of the Hattis employees; and the alleged
8(a)(5) violations involved Respondent's refusal to
bargain with the Union, at all times relevant herein,
and derive, in part, from the 8(a)(3) conduct and its
objective. The Administrative Law Judge found the
violations alleged in toto. We disagree with certain of
his findings.
The findings we affirm or reject and the nature of
the modifications we deem appropriate to the
provisions of his remedial order are as follows:
1 The Respondent has requested oral argument This request is hereby
denied as the record , the exceptions, and the briefs adequately present the
issues and the positions of the parties
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
1. THE 8(A)(3) AND ( 1) FINDINGS
37
The credited evidence concerning the alleged
violation of Section 8(a)(3) establishes, in brief, that
there were three individuals who composed the group
performing the maintenance work involved just
before Respondent gave Hattis notice of the termina-
tion of the maintenance contract; that all three were
then represented by the Union under a bargaining
contract covering the certified unit of maintenance
engineers; and that Respondent sought to hire and
would have hired these individuals for its initial
maintenance engineer crew but for: (a) its open
opposition to the unionization of its maintenance
employees; and (b) the maintenance engineers'
refusal to acquiesce in Respondent's consistent
demand that they abandon the Union as a precondi-
tion to becoming members of its staff.
The Administrative Law Judge concluded, on this
evidence, that Respondent violated Section 8(a)(3)
and (1) of the Act by failing and refusing to hire the
Hattis maintenance engineers because of their
affiliation with the Union. We adopt this finding.
II. THE 8(A)(5) FINDINGS
The Administrative Law Judge made two separate
findings of 8(a)(5) violation. He found, first, that
Respondent was properly chargeable with a violation
of its duty to recognize the Union as a bargaining
representative on and after August 18, 1972, the date
on which Respondent officially began performing
the maintenance services previously performed by
Hattis; and, second, that Respondent acted in
derogation of the Union's status as the representative
of its prospective employees at an earlier date when it
set its initial terms of hire without first consulting
with the Union. Both findings are grounded on the
"successor-employer" doctrine, as interpreted and
affirmed by the Supreme Court in Burns.3 They
reflect the Administrative Law Judge's interpretation
of certain principles that case enunciated in defining
the character and extent of the bargaining obliga-
tions which attach to a new employer who succeeds
another as the operator of an established business
operation without any interim break in operations.
We agree with the Administrative Law Judge that
Respondent's duty to bargain with the Union is
properly to be tested under the successor-employer
doctrine affirmed by Burns. We agree, further, that
the first of the 8(a)(5) violations found by the
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect . Standard Drv Wall Products,
Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
' N L R B v. Burns International Security Servicei, Inc. 406 U S 272
(1972)
209 N LRB No. 2
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge. above, is consistent with
and justified by the Burns case, but do not find this
to be so with regard to the second 8(a)(5) finding. We
therefore discuss each 8(a)(5) violation separately.
1. As to the first violation, the Administrative
Law Judge found, on the facts summarized above,
that but for the Respondent's 8(a)(3) conduct the
Union would have been the majority representative
of the Respondent's initial complement in the
certified engineer unit and that, in the circumstances,
the duty to bargain with the Union could properly be
found under the successor-employer doctrine af-
firmed by the Supreme Court in Burns. He found
further that the Union invoked that duty by an
express request in late July 1972 that Respondent
recognize and bargain with it; that Respondent had
refused to honor that request; and that thereby
Respondent had refused to bargain with the Union
within the meaning of Section 8(a)(5) and (1) of the
Act. He concluded, accordingly, that the General
Counsel had established the predicate for the
issuance of an affirmative bargaining order and he
provided for such an order in his remedy. We affirm
this part of the Administrative Law Judge's Deci-
sion.4 But we hold, further, that, even absent the
independent evidence of an express request and
refusal to bargain within the meaning of the language
of Section 8(a)(5), a bargaining order would be
appropriate under the Gissel concepts 5 as a remedy
for the serious 8(a)(3) violations committed by
Respondent. Respondent's failure to hire an entire
complement of employees because of their refusal to
renounce their union adherence is not a lesson likely
to be forgotten. The issuance of an affirmative
bargaining order as part of the remedy for these
8(a)(3) violations is necessary in our view in order to
restore the status quo ante, i.e., that existing pnor to
Respondent's unlawful conduct.6
2. The Administrative Law Judge found a second
independent violation by Respondent of its bargain-
ing obligations arising out of its having set the
economic terms on which it hired its initial crew of
maintenance engineers without consulting the Union
and without regard to the terms set• out in the
bargaining contract between the Union and Hattis.
Interpreting the principles enunciated in Burns,
supra, the Administrative Law Judge held that,
although Respondent was not obligated to assume
Hattis' bargaining contract, it was not privileged in
the circumstances of this case to set its initial
economic terms at variance from those provided in
the Union's contract with Hattis. We do not agree.
The Burns case, as we read it, holds that in
4 See, e g., Foodway of El Paso, a Division of Kimbell Foods, Inc, 201
NLRB 933, and cases cited therein at fn 27.
5 N L R B v. Gissel Packing Co, Inc., 395 U.S 575 (1969).
situations where, as here, an arm's-length business
arrangement is made for the transfer of a going
business operation from one employer to another,
the new employer's duty to bargain with the union
representing an appropriate unit of the predecessor's
employees attaches normally at such time as a
majority of the new employer's initial complement in
an appropriate unit is composed of its predecessor's
employees. Prior to that time the new employer is
ordinarily free to set his own initial economic terms
of hire without consulting with the union and, so
long as he does not vary them after the duty to
bargain has attached, his unilateral action in institut-
ing the terms does not constitute a violation of
Section 8(a)(5).
In Howard Johnson Company, 198 NLRB No. 98,
and Good Foods Manufacturing & Processing Corpora-
tion, Chicago Lamb Packers, Inc.,-Division, 200
NLRB No. 86, however, we found a duty to consult
with the union before the initial terms of hire arose
because of record evidence establishing that the
employers had voluntarily obligated themselves to
retain all or substantially all of their predecessors'
employees before they set the economic terms of
employment.
Here Respondent did announce a tentative desire
to retain its predecessor's employees when it notified
Hattis that it would be displacing it as the mainte-
nance contractor at the mall. However, it was by no
means clear at this time that it would be able to do so
since Respondent was restricted at that time, under
provisions of its contract with Hattis , from hiring any
of Hattis' employees. Therefore, unless and until
Hattis released Respondent from these restrictions,
Respondent had to, and did, seek employees from
other sources. Respondent adduced evidence that it
initiated a recruitment plan in late July by, for
example, inserting advertisements for help in the
newspaper (which described in some detail Respon-
dent's benefit programs) before it received word
from Hattis that the latter would waive the contrac-
tual restrictions against Respondent's hiring of its
employees, and that, as part of that recruitment plan,
Respondent determined the economic terms it would
offer potential employees, which clearly were not
identical to those which Hattis had provided. The
record indicates that its terms of hire consisted in
part of the existing paid insurance and other benefit
plans Respondent already had in effect at other
portions of its operations and an hourly pay rate at
scales commensurate with the experience of its
Srtton Tank Co., 193 NLRB 209, enfd 467 F 2d 1971 (CA 8. 1972),
Northwest Engineering Co. 158 NLRB 624, enfd 376 F 2d 770 (C.A.DC.
1967)
GREENGATE MALL, INC.
prospective employees and equivalent to those
prevailing in the area for similarly qualified employ-
ees. 7
Thus, at a time when it was unclear as to whether
Respondent would or would not inherit Hattis'
maintenance personnel , it determined its terms of
employment . and, we hold , it was entitled so to do.
Subsequent events, as indicated .supra, established
that once Hattis removed the restrictions against the
hire of its employees Respondent discriminatorily
refused to hire the Hattis employees , and we have
found appropriate violations flowing from that
subsequent conduct . But there is no evidence that
Respondent changed or varied the terms lawfully set
as part of its recruitment plan after its obligation to
bargain had matured.
For these reasons we reject the Administrative Law
Judge 's findings of an independent 8(a)(5) violation
based on the unilateral setting of initial terms.
IN. THE 8(A)(1) FINDINGS
The complaint alleged and the Administrative Law
Judge found that Respondent committed independ-
ent violations of Section 8(a)(1) of the Act by (a)
emphasizing to the Hattis employees the futility of
their remaining affiliated with the Union; (b)
conditioning their employment on their withdrawal
of membership in the Union; and (c) promising them
economic benefits to induce them to withdraw from
the Union. We agree with findings (a) and (b) above,
but disagree with (c).
The Administrative Law Judge premised his
finding that Respondent made an unlawful promise
of benefits to the Hattis engineers on the ground that
Respondent was obligated first to discuss its initial
terms with the Union before offering them to the
Hattis engineers, and that its failure to do so was not
only a violation of its 8(a)(5) duty, as discussed
above, but also an independent 8(a)(1) violation.
Inasmuch as we have found that Respondent was
entitled to fix its initial terms unilaterally under the
facts here, it follows it was also free to announce
these terms to its potential employees. Consequently,
we find, contrary to the Administrative Law Judge,
that Respondent's announcement of its initial terms
did not constitute an unlawful "promise of bene-
fits." 8
THE REMEDY
Having found, contrary to the Administrative Law
7 The payroll records for Respondent's initial complement indicate that
those whom it employed received an hourly rate of $5 75 per hour plus the
paid benefit package described supra Hattts' employees , all of whom were
covered by a union contract, were being paid at the time of the events here
in issue between $5.32 and $6 08 per hour and had a wage benefit package
39
Judge, that Respondent lawfully fixed its initial
terms of employment, we shall modify the Adminis-
trative Law Judge's recommended remedy to the
extent that it would have required Respondent to
have made the employees whole for changes which it
unilaterally instituted in the terms and conditions of
employment prior to or on the date of takeover.
Instead, we shall order Respondent to make the
employees whole on the basis of the rates it initially
fixed.
We shall also strike the provision in the Adminis-
trative Law Judge's recommended remedy which
would run the backpay to 5 days after the receipt of
the offer of reinstatement or placement on a
preferential hiring list, for reasons stated in Frede-
man's Calcasieu Locks Shipyards, Inc., 206 NLRB
No. 104. (Such an inflexible 5-day provision is
traditionally provided only in unfair labor practice
strike cases, and even then it acts to the benefit of the
employer, not the employees.) In all other respects,
we adopt the recommended remedy of the Adminis-
trative Law Judge as our own.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Greengate Mall, Inc., a subsidiary of the Rouse
Company, Greensburg, Pennsylvania, its officers,
successors, agents, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning
rates of pay. wages, hours, and other terms and
conditions of employment with International Union
of Operating Engineers, Local 95-95A, AFL-CIO, as
the exclusive bargaining representative of its employ-
ees in the appropriate unit; and failing to recognize
the Union as the majority representative of such
employees.
(b) Discouraging membership in Local 95 or in any
other labor organization by discriminating in regard
to the hire or tenure of employment of any employee
or applicant for employment.
(c) Emphasizing to employees or applicants for
employment the futility of remaining affiliated with
the Union; conditioning employment on withdrawal
from the Union; or in any other manner interfering
with, restraining, or coercing employees in the
exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collec-
tively through representatives of their own choosing,
which, in some respects, did not provide employee benefits comparable to
Respondent's
a To the extent that the Administrative Law Judge 's Conclusion of Law 8
is inconsistent herewith, it is hereby modified.
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Offer Donald Frye, Stephen Kazousky, and
Robert McMunn immediate reinstatement to the
jobs they held on August 17, 1972, replacing its
present nonsupervisory engineers whom it hired as of
August 17, 1972, and thereafter , or, if there are not a
sufficient number of positions now available, place
them on a preferential hiring list in the order of their
seniority with their previous employer , Hattis, all
without prejudice to their seniority and other rights
and privileges , and make them whole for any loss of
pay they may have suffered as a result of the
discrimination practiced against them , in the manner
set forth in the Remedy section of the Administrative
Law Judge 's Decision.
(b) Upon request , bargain with Local 95 as the
exclusive bargaining representative of all employees
in the aforesaid appropriate bargaining unit with
respect to rates of pay , wages, hours, and other terms
and conditions of employment.
(c) Preserve and, upon 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 its shopping center at Greensburg,
Pennsylvania, copies of the attached notice marked
"Appendix ."9 Copies of said notice, on forms
provided by the Regional Director for Region 6,
after being duly signed by Respondent's representa-
tive , shall be posted by Respondent immediately
upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken
by Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(e) Notify the Regional Director for Region 6, in
writing , within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
9 In the event that 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 "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OIL THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Wi- WILL NOT refuse to recognize and bargain
collectively with International Union of Operat-
ing Engineers, Local 95-95A, AFL-CIO, as the
exclusive bargaining representative of the em-
ployees in the following appropriate unit:
All maintenance operating engineers em-
ployed by Greengate Mall, Inc. at its
shopping center, Route 30, Greensburg,
Pennsylvania, excluding all other employees,
guards, professional employees, and supervi-
sors as defined in the Act.
WE WILL NOT discourage membership in Local
95, or in any other labor organization. by
discriminating in regard to the hire or tenure of
employment of any employee or applicant for
employment.
Wi- WILL NOT emphasize to our employees or
applicants for employment the futility of remain-
ing affiliated with Local 95, nor will we condition
employment upon the withdrawal of membership
from Local 95 or any other union.
WE WILL NOI in any other manner interfere
with, restrain, or coerce employees or applicants
in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, to engage in other concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from all or any such activities.
WE WILL offer Donald Frye, Stephen Kazousky.
and Robert McMunn immediate reinstatement
to the jobs they held as maintenance engineers on
August 17, 1972, or, if there are not sufficient
positions available now, we will place them on a
preferential hiring list, without prejudice to their
seniority and other rights and privileges.
WE WILL also make Frye, Kazousky, and
McMunn whole for any loss of pay they may
have suffered as a result of the discrimination
which we practiced against them.
WE WILL, upon request, bargain with Local 95
as the exclusive bargaining representative of all
employees in the above appropriate unit with
respect to rates of pay, wages, hours, and other
terms and conditions of employment.
GREENGATE MALL, INC. 41
GREENGATE MALL, INC..
A SUBSIDIARY OF THE
ROUSE COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 1536 Federal Building, 1000 Liberty
Avenue, Pittsburgh, Pennsylvania 15222, Telephone
412-644-2977.
DECISION
STATEMENT OF THE CASE
MILTON JANUS, Administrative Law Judge: This case
was heard by me at Pittsburgh, Pennsylvania, on January
11, 12, and 17, 1973, pursuant to a charge and amended
charges filed on August 16, September 12, and October 30,
1972. A complaint based on these charges was issued on
October 31, 1972. It alleges that Respondent (Greengate)
was obliged to bargain, as a successor employer, with the
Charging Party (the Union or Local 95), which had been
certified as the bargaining representative for a unit of
maintenance engineers employed by the predecessor
employer; that it refused to hire the maintenance engineers
when it took over the existing operation, because they
wanted to continue being represented by Local 95; and
that certain named persons, alleged to be supervisors,
interfered with the self-organizational rights of the mainte-
nance engineers, as applicants for employment, by empha-
sizing the futility of remaining affiliated with the Union, by
conditioning their hiring on their withdrawal from the
Union, and in other ways. These are alleged to be
violations of Section 8(a)(5), (3), and (1). Respondent's
answer denies the legal conclusions of the complaint.
Upon the entire record, including my observation of the
demeanor of the witnesses, and upon the briefs received
from the General Counsel and the Respondent, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF THL RESPONDENT
Respondent is a Pennsylvania corporation which oper-
ates a shopping center, known as Greengate Mall, in
Greensburg, Pennsylvania. During the 12-month period
preceding the issuance of the complaint, its gross revenue
derived from the operation of the shopping center was in
excess of $100,000, of which $25,000 was received from
organizations whose operations meet the Board's jurisdic-
tional standards, exclusive of the Board's indirect inflow or
outflow standards. During the same period, Respondent
received goods and materials valued at $3,000 directly
from points outside Pennsylvania for use at the shopping
center. On these facts, Respondent admits, and I find, that
it is an employer engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Operating Engineers. Local
95-95A, AFL-CIO, is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Greengate Mall is an enclosed shopping center with an
area of about 900,000 square feet, which leases space to
approximately 100 retail establishments. As the owner,
operator, and lessor of the center, Respondent is responsi-
ble for the temperature control, maintenance, and security
of the entire area. The boilers, fans, pumps. and other
equipment used for heating and chilling the mall are
located in a separate building, known as the central plant,
which is contiguous to the enclosed shopping area. Tenants
are responsible only for the air moving machinery by
which their individual shops utilize the chilled or heated
water which is circulated through pipes from the central
plant.
Greengate was opened to the public in August 1965. Its
janitorial and security work has always been performed by
porters and guards whom it employs directly, but the
operation and maintenance of the central plant and the
electrical equipment, etc., was contracted out to an
independent firm, Hattis Service Company (Hattis) which
is in the business of doing similar work for shopping
centers throughout the country. The contract between
Hattis and Greengate, the Facilities Maintenance Agree-
ment, was for a term of 7 years from the opening of the
mall, and was due to expire August 18, 1972. Under this
contract, Hattis agreed to furnish the personnel and
supervision necessary to operate and maintain the equip-
ment described above, all of which was owned by
Greengate.
In 1972, Hattis employed a resident supervisor and three
maintenance engineers at the Mall. The three engineers
were members of Local 95, and were represented by it,
pursuant to a Board certification, dated August 11, 1965.
The latest contract between Hattis and Local 95, covering
the Hattis employees working at Greengate, was not due to
expire until 1974.
Hattis also had agreements with a number of mall
tenants to maintain the air moving equipment in their
shops, for which Hattis billed them directly. The mainte-
nance engineers spent about 20 percent of their time
working for these tenants, and the other 80 percent on
Greengate's operations.
In May 1972, Greengate gave Hattis the required 3-
months notice of its intention to terminate their agreement
as of August 17, indicating that it would then assume
responsibility for what Hattis had been doing, using its
42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own employees. A clause in the agreement provided that
Greengate would not hire any Hattis employee for 5 years
after their relationship terminated. When Greengate gave
Hattis notice of its intention to do its own maintenance
work, Randol, an official of Rouse, advised Hattis that it
would abide by the restriction on hiring its personnel, but
said that if Hattis was willing to waive it, Greengate would
be willing to consider some of them for employment. From
early May until late in July, Hattis vacillated between
upholding the restriction against hiring its employees and
waiving it. Finally, on July 20, a Hattis official agreed in a
conversation with Randol, that Hattis would not insist that
the hiring restriction be enforced, and confirmed it by
telegram the next day.' Thus, about 4 weeks before the
transfer of operations from Hattis to Greengate, the latter
knew that it could hire Hattis employees without violating
the agreement.
The four Hattis employees at the mall were a supervisor,
Trout, and three engineers, Frye, Kazousky, and McMunn.
Overly and Adams were the manager and assistant
manager of the mall, and Howley was its maintenance
supervisor after August 4, when he was hired as the
eventual replacement for Trout, who stayed on until the
17th. Hadrovick is an employee of Rouse who, between
assignments as assistant mall manager at two other Rouse
shopping centers, worked at Greengate in July and August
on the transfer of the maintenance work from Hattis to
Greengate. The General Counsel contends that he was a
supervisor while working at Greengate, or at least a
management agent, while Respondent argued otherwise.
B. Antecedents to the Takeover on August 17
Certain events and conversations are not in dispute,
while the existence of others, or their significance, is a
matter of sharp disagreement. It is undisputed that the
attorney for Local 95, O'Reilly, had a telephone conversa-
tion with Randol, who is in charge of all Rouse shopping
center operations. O'Reilly called Randol, who was then at
Greengate, because he had learned that Greengate was
going to take over the Hattis operations, and he was
concerned about the status of the engineers, all of whom
were members of Local 95, and represented by it. O'Reilly
said he told Randol that Local 95 wanted Rouse to
recognize it as the bargaining agent for the maintenance
engineers, and to continue its contract with Hattis in effect.
I am satisfied that O'Reilly's request of Randol that
Greengate recognize it as bargaining agent was meant to
encompass a demand that Greengate as successor to Hattis
employ the Hattis engineers, and that Randol so under-
stood it, since he responded by telling O'Reilly that
Greengate was prohibited from hiring any of the Hattis
employees.2 Randol testified after O'Reilly, but was not
asked by Respondent's counsel to relate his version of the
conversation. I take it then that Randol could not
' I credit the testimony of Crump, a Hattis vice president, that he never
thereafter withdrew permission for Greengate to hire its employees if it
wished to do so
2 O'Reilly recalled the conversation as occurring in late July or early
August, but I find, as Randol testified, that it took place on July 19 Randol
was at the mall for only 2 days during this period, July 19 and 20. and was
not advised by Hattis that it would waive the hiring restriction until the
20th. Randol would thus not have known on the 19th that Greengate could
contravert that O'Reilly had asked him to continue the
recognition of Local 95, after August 17, as the representa-
tive of the three maintenance engineers.3
It is also undisputed that while Randol was at Greengate,
and before Hattis waived the hiring restriction, he
authorized the placing of help wanted advertisements in a
Pittsburgh newspaper for a maintenance supervisor and
two maintenance engineers. The advertisements appeared
on Sunday, July 23.
The Hattis employees learned sometime in June that the
relationship between Hattis and Greengate would be
terminated as of August 17. Either singly, or in groups of
two or three, they spoke on various occasions with Overly
and other mall officials about their future prospects at
Greengate. It is with respect to these conversations that
there is a sharp divergence between the testimony of
witnesses for the General Counsel and those for Respon-
dent.
Frye, one of the three engineers, testified as to a number
of conversations with Overly, the mall manager. In late
June. he said, Overly had told him that Greengate was
trying to get Hattis to waive the restriction against hiring
its employees. In early July, Frye and Kazousky, con-
cerned about their status if the Hattis contract was
terminated, went to see Overly who told him, according to
Frye, that he was well satisfied with the Hattis crew, that
the Hattis contract was not being renewed, and that if the
restriction were waived, he would like to hire them. Overly
also told them that it was company policy not to accept the
Union, and that it was something they would have to think
about. Frye said he asked Overly why they would not
accept the Union, and that Overly had replied that the
Union was like a cancer-that if the maintenance
engineers were allowed to go union, then the porters would
want it too, and it would spread through the whole Rouse
organization. Overly did not say anything about their
dropping the Union at that time.
Kazousky's testimony as to their conversation with
Overly generally corroborates Frye's, although it is less
full. The only substantial difference between them is that
Kazousky recalled Overly telling them then that they
would have to drop out of the Union if they wanted to
work for Greengate.
Trout, the Hattis supervisor at the mall, testified that he
had a conversation with Randol and Overly on July 20.
According to Trout, he told Randol that Rankin, his
superior at Hattis, had asked him to pass on the word that
Hattis would not hold Greengate to the hiring restriction;
that Randol then told him about the benefits Greengate
offered its employees; and that Overly asked him how he
felt about working as a combined supervisor and engineer
on one of the two shifts. Trout said he told Overly he could
not see any problem on that score as long as the union
business agent and the contract permitted it. Trout said he
properly consider the Hattis engineers for employment
s Much of Respondent's cross-examination of O'Reilly could not he
transcribed by the reporter because of mechanical difficulties with his
equipment After the hearing , the parties entered into a stipulation as to
their best recollection of what O'Reilly testified to on cross-examination
None of it damages O'Reilly's testimony on direct which I have set out
above.
GREENGATE MALL, INC.
was then told there would definitely be no union
agreement . He was asked what his affiliation was, and he
answered that he did not know what his status was in the
Union since he had applied for a withdrawal card. Trout
also said he was told that a Rouse company attorney had
spoken to the union attorney, and had "shot him down,"
that there would he no union.
Frye and McMunn spoke with Overly in his office on
Tuesday, July 25. They testified that they had gone there
because Overly had asked to talk to the whole crew, but
that Kazousky was then on vacation. Frye testified that
Overly told them Rouse was not renewing the Hattis
agreement, that they would possibly like to keep the Hattis
crew, and that their benefits would be better than what
they were then getting. Overly then said, according to Frye,
that there was one drawback to their employment-that
they would have to get out of the Union. Frye said he
asked why Rouse would not accept the Union, and that
Overly answered that it was just not their policy. Overly
then asked him if he would not consider the offer, and Frye
said he would. Overly asked him what the Union had ever
gotten for him, and Frye said it was not so much what the
Union had done as what it could do for him if he needed a
job. Overly also asked him if they had come to a decision,
and Frye said he had not, he would have to think about it.
Overly said he thought McMunn and Kazousky would
follow Frye's lead in staying in or getting out of the Union,
and then said he would have to have their answers by
Friday. It was in this conversation, Frye testified, that
Overly had asked him to drop out of the Union and go to
work for Rouse.
McMunn's testimony was to the same effect-that
Overly had told them they would have to get out of the
Union in order to work for Rouse, and that he gave them
till Friday to let him know their decision.
In its cross-examination of Frye and McMunn as to their
conversation with Overly on July 25, Respondent devel-
oped the point that recognition of the Union by Greengate
was one of the topics discussed, and that Frye and
McMunn equated their membership in Local 95 with
Greengate's recognition of Local 95 after its agreement
with Hattis expired on August 17. It was also brought out
that one of the considerations Frye and McMunn would
bear in mind in deciding whether to work for Greengate
was that Greengate wanted to deal with them individually
rather than as members of a bargaining unit.4
On Friday morning, Frye met Assistant Manager Adams
and asked him to let Overly know that he could not see
going to work for Rouse without the Union. The next day
he met Overly, and told him the same thing. Overly told
him he was sorry.
Also on Friday, McMunn ran into Adams and Hadro-
vick. They asked him if he had come to a decision yet, and
he told them he had decided not to work for Rouse
because he could not see going without the Union. On
Saturday, McMunn met Overly and told him the same
thing.
According to Kazousky, he met Overly one day early in
4 1 am satisfied that the three engineers saw no meaningful distinction
between their union membership their representation by the Union, and
Greengate's recognition and bargaining with the Union They all under-
43
August, after his return from vacation. Overly asked him if
he had made up his mind, since they had not turned in any
applications. Kazousky said he told Overly that he could
not see dropping out of the Union to work for Rouse, and
that Overly replied that Kazousky was making a mistake
because Rouse had more to offer in benefits than they were
getting through Hattis and the Union. Overly went on to
say that he thought he had a good crew, that he did not like
to see them leave, that he liked the way they worked and
had no complaints.
Overly testified that he did not recall telling Kazousky or
Frye between July 1 and 17, that the only way he would
consider them for employment was if they dropped out of
the Union, or discussing with Kazousky the benefits Rouse
would pay, and comparing them with those of Hattis.
Overly denied that he had had any formal conversation in
his office with Frye and McMunn through July 25, as they
had testified to, saying that he had not felt free to discuss
prospective employment with the Hattis engineers because
of the restriction on hiring them. However, on July 25,
there had been a discussion in his office, although he
denied calling them there. He had learned by this time that
the Union had contacted Randol about Greengate recog-
nizing it. Overly said he discussed with Frye and McMunn
the specifics of the benefits which Greengate had set out in
the help wanted advertisement of a few days before, but
not the hourly rate, since that was not definitely decided
until after Howley was hired as the new maintenance
supervisor on August 4.
Overly denied telling Frye and McMunn on July 25 that
they would have to drop out of the Union before he would
consider them for employment, but said that Frye had told
him he would not come to work for Greengate if it did not
recognize the Union, and that he wanted someone to
represent him. Overly recalled that he had indicated to
Frye that he did not feel that a third party (obviously
referring to a labor organization between an employer and
his employees) was that necessary. Overly also denied that
he had set any time limit for the Hattis employees to decide
whether to drop out of the Union.
Recognition of the Union was a constant topic of
conversation between Overly and the engineers, particular-
ly Frye, as he met them informally in the mall. Overly
denied, however, that he had ever told them that it would
be futile to try to be employed by Greengate if they
retained their union membership, nor had there ever been
any decision by Greengate officials that no prospective
employee with a union affiliation would be hired. He also
denied trying to get the Hattis employees to withdraw from
the Union by offering them better benefits than they were
getting from Hattis. He did tell them many times that he
would not recognize the Union for purposes of bargaining
prior to their employment, if they were employed.
Hadrovick, who was assigned to the mall from July 17 to
August 30 as a technical advisor on the takeover, screened
applicants who had responded to the help wanted
advertisement of July 23. He testified that he was never
told that he could not consider the three Hattis employees
stood these to be different ways of expressing a single concept-a
bargaining relationship between Local 95 and whoever employed them I
am also satisfied that the company representatives saw it the same way too
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as prospects, but that only Frye was considered as a
possibility for employment, except that his application was
not received while decisions were being made as to hiring.
He denied telling any Hattis employee that he would have
to drop his union membership in order to be considered for
employment.
Eventually, Frye, Kazousky, and McMunn submitted
written applications for employment on official Greengate
forms, but the date on which they were turned in is in
dispute. Kazousky testified that he handed them to a
secretary in the mall office no later than August 11, while
the testimony for Respondent is that they were turned in
no earlier than August 15, when, Respondent claims, it had
already selected its new crew. Whenever it was that the
applications were submitted, no representation was made
then that the applicants were or were not willing to drop
the Union.
Frye testified that the day after the applications were
turned in he was called in by Howley who asked him if he
had reconsidered and was going to work for Rouse. Frye
said he told Howley that he could not see going to work
under their conditions. Howley said he was sorry, that if
the crew had stayed around, it would have made the job a
lot easier. The following Saturday, Frye said he was
approached by Hadrovick who asked him what he would
change if he were a supervisor. Frye said he told him he
would leave the operation much as it was, and Hadrovick
then asked if he would reconsider going to work for Rouse.
Frye said he would not, and Hadrovick responded by
telling him that he thought he was being foolish, that
Rouse had more to offer than the Union.
On August 17, the last day at the mall for the Hattis
crew, Frye said he asked Hadrovick if they had hired a full
crew yet, and that Hadrovick said that to his knowledge
they had not. Later that afternoon, Overly came over to the
central plant, and the men asked him if they had jobs, that
they were ready to go to work. According to Frye, Overly
said he was sorry, that things had come down to the wire,
and that he had hired his last man that afternoon .5
Kazousky also testified that after submitting the applica-
tions, Hadrovick had asked him if he would reconsider
working for Rouse, and that he had told Hadrovick that he
could not see getting out of the Union for that. Hadrovick
then said, according to Kazousky, that he was making a
mistake, that Rouse had more to offer than they were
getting through the Union.
Howley said that he had asked the Hattis engineers on
August 11 why they had not submitted applications, and
that they had told him they would not until their union
representative advised them to do so. None of them, he
said, seemed to be particularly concerned that they might
be losing their jobs. Frye indicated to him that he was still
dealing with Hattis about another job with that organiza-
tion.
C. Replacing the Hattis Crew
Howley applied for the job of maintenance superintend-
ent in response to the newspaper advertisement of July 23,
5 Kazousky's testimony as to the events of August 17 is substantially the
same as Frye's
6 The four members of the Hattis crew. it should he noted, had spent
and was hired as of August 4, to be the eventual
replacement for Trout. He immediately began to go over
the 25-30 applications which had come in , and he also got
in touch with people whom he knew by reputation but who
had not responded to the advertisement. He eventually
interviewed Paone, who had written a letter of application,
about August 15, and hired him to report on the 17th.
Howley also had three others under active consideration
before August 15, but by that date only one, Greenaway,
was still in the running. He was offered an engineer's job,
came to the mall on the 17th, but then decided not to go to
work. Thus, as of the takeover date, only Howley and
Paone were actually working. On that date, August 17,
Paone recommended Fowler, who had not answered the
advertisement, and Howley interviewed him on Saturday,
the 19th. He was hired, and began work the following
Monday.
A week or so later, Patton, an employee of a contractor
who was doing some work for a mall tenant, applied to
Howley for an engineer's job. He was hired but did not
begin working for Greengate until September 11. On
October 16, Howley left and was replaced by Paone as a
working supervisor.
Howley testified that Hadrovick felt that a working
supervisor and two engineers would be sufficient to run the
entire operation, but that he thought that more mainte-
nance jobs could be obtained from the mall tenants,
thereby making an additional engineer necessary. That was
why, he said, Patton was hired as the fourth man of the
crew .6
Respondent denies that it was prepared to hire the three
nonsupervisory Hattis engineers only if they would agree
to work without union representation. It claims that it was
ready to consider them on the basis of their qualifications,
but that only Frye would have been satisfactory to it.
Furthermore, in reaching its decision not to hire any of
them it took into account their seeming indifference and
vacillation about submitting applications for employment,
and their coolness and grudging attitude toward Hadrovick
and Howley as they acquainted themselves with the
equipment in the central plant and with the maintenance
procedures of the Hattis crew.
Frye had been employed by Hattis at the mall for the
past 7 years, even since it opened; Kazousky since March
1969; and McMunn, according to his application for
employment, sometime in 1971. McMunn was the least
experienced of the three, and was earning less than the
other two, although he was scheduled to be raised to their
rate in a few months, under the Hattis contract with Local
95.
Kazousky had had a coronary attack during his
employment and had been away from work for a few
weeks. After his return, he was assigned to light work for a
while, but had then been cleared by his doctor to perform
the full range of activities he had been doing before his
attack. The mall had never raised any objection to
Kazousky's employment or performance either before or
after his coronary. So far as the record shows, Greengate
about 20 percent of their total man hours working for tenants who had their
own maintenance agreements with Hattis After August 17. Hattis retained
Frye to service its accounts at the mall.
GREENGATE MALL, INC. 45 _
had never had any serious complaints against any of the
three engineers at any time.7
D. The Section 8(a)(3) Allegations
From June to August, as information gradually became
available that the Hattis agreement was to be terminated
and that the hiring restriction might be lifted, the Hattis
crew and Whalen, the business agent of Local 95, kept in
touch with each other over their employment prospects at
the mall. I am satisfied from their testimony that Frye.
Kazousky and McMunn wanted to continue working at
the mall, under the existing conditions established by the
Hattis agreement with Local 95, and with continued
representation by Local 95. Their reluctance to file formal
applications for employment with Greengate was not due
to any hesitance on their part to accept employment there
if offered, but to their belief, fostered by Whalen, that they
were entitled to retain their jobs after the takeover without
further action on their part.
The critical issue then is why Respondent refused to hire
them as its employees. I am convinced that Overly
considered all of them to be competent. Since he had no
direct authority over them as Hattis employees, his
judgment as to their individual or collective work was
based presumably on how smoothly the operation of the
central plant was conducted, and as to that, there were no
grounds for complaint. He may have thought Frye to he
the best of the three, but there is no evidence that he,
Hadrovick, or Howley thought Kazousky or McMunn to
be unqualified in any respect. Kazousky carried his full
load after being released by his doctor, and McMunn also
assumed the same responsibilities as the others. When
Rouse gave notice of its intent to terminate the Hattis
agreement in May, it gave as its only reason the
expectation that it could do the same excellent work that
Hattis had done for it, while retaining the profit that Hattis
was making on its contract. At no time before August 17,
did any Rouse official take exception to the work of any
Hattis employees. As a matter of fact, its interest in getting
Hattis to waive the hiring restriction indicates its satisfac-
tion with the Hattis crew's work.
Nor does Respondent's contention that it considered the
engineers uncooperative toward Hadrovick and Howley in
July and August seem any better founded. They were, after
all, still working for Hattis and its supervisor, Trout. If
there were problems or questions concerning the operation
of the central plant which Hadrovick wanted explained, it
was Trout who was authorized to supply the information.
There were undoubtedly undercurrents of tension, since
the engineers were concerned about their future employ-
ment, while Hadrovick and Howley, both new at their jobs,
were equally concerned that the takeover he accomplished
smoothly. That there may have been some occasions when
personalities clashed under these circumstances is to be
7 Greengate had the right under the maintenance agreement with Ilattis
to have Hattis discharge any of the engineers whom Greengate considered
unsuitable to it, and had exercised that right on one occasion in the past 7
years.
8 Chemrock Corporation, 151 NLRB 1074, 1078 "We think that where,
as here, the only substantial change wrought by the sale of a business
enterprise is the transfer of ownership, the individuals employed by the
expected, but I am satisfied that they were minor and
relatively unimportant, and played no real part in the
mall's decision not to hire them.
There remains the question whether the late filing of the
applications was a factor in the decision not to hire the
engineers. I do not believe that it was, and I therefore find
it unnecessary to decide whether Kazousky submitted the
three applications between August 7 and 11, as he testified,
or on August 15 or 16, as the testimony for Respondent
indicates.
First of all, Frye, Kazousky, and McMunn were not in
the same category of applicants as the strangers who
applied in response to the newspaper advertisement of July
23.8 They had worked at the mall for years, were well-
regarded by Rouse officials, while their qualifications were
established by their actual performance on the job, rather
than by a paper record. Secondly, the submission of an
application on the form used by the Respondent, seems to
have been largely a formality, the final, rather than a
preliminary step, in the hiring process. Thus, Paone,
Fowler. and Patton. the three nonsupervisory engineers
hired by Greengate, were hired on the basis of personal
interviews and the recommendations of people in the
organization who already knew them, rather than on the
basis of the application form alone. And finally, it was no
secret to Overly, Hadrovick, or Howley that the Hattis
engineers wanted to be retained. In a number of conversa-
tions between them, as well as in the conversation between
the Union's attorney and Randol on July 19, it was
apparent that the Hattis employees regarded themselves as
applicants, and were so regarded by management, since the
talk was always in terms of the conditions under which
they could be hired. Moreover, even on August 17, after
the formal applications had been submitted, there were still
vacancies to be filled, since Fowler was not even
interviewed until the 19th, and Patton had not even come
on the scene.
Thus, since Respondent's stated reasons for not hiring
Frye, Kazousky, and McMunn appear to me to be untrue,
I conclude that it preferred new and untried employees in
preference to the Hattis employees for a reason peculiar to
the latter. The reason, I find, was their explicit insistence
on their representation by Local 95.
The Rouse Company was opposed to the unionization of
its shopping center employees, as evidenced by General
Counsel's Exhibit 16, a job description for assistant mall
managers. Paragraph 10(c) of which reads as follows:
"None of our personnel belong to unions, and we feel that
it is in the best interest of the company both financially
and from a management point of view to avoid unioniza-
tion in our operating properties."
I credit the testimony of Frye and Kazousky that even
before July 20 (when Randol was finally advised that
Hattis would waive the hiring restriction) Overly had told
them he would like to hire them but that it was company
seller of the enterprise must be regarded as 'employees' of the purchaser as
that term is used in the Act. Such individuals possess a substantial interest
in the continuation of their existing employee status, and by virtue of this
interest bear a much closer economic relationship to the employing
enterprise than , for example, the mere applicant for employment in the
Phelps Dodge case."
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
policy not to accept the Union, and that it was like a
cancer which would spread through the entire Rouse
organization if the engineers were allowed to go union. I
also credit Trout who testified that Overly had asked him
how he felt about staying on as a working supervisor, and
then told him there would definitely be no union
agreement when Trout said he could see no problem if the
union contract permitted it.
I also credit the testimony of Frye and McMunn that
Overly called them to his office on July 25 (when Overly
knew that the hiring restriction had been dropped) and
told them there was only one drawback to their employ-
ment-that they would have to get out of the Union.
Although Overly denied telling them that they would have
to drop out of the Union before he would consider them
for employment, he nevertheless admitted that Frye had
told him he would not work for Greengate if it did not
recognize the Union, and that he had then told Frye that
he did not feel a third party was necessary. In effect,
Overly was telling them that they would not he hired if
they insisted on being represented by the Union.
Despite the denials of Overly, Hadrovick, and Howley
that they had told the Hattis employees that they would
have to drop their union membership if they wanted to be
employed by the mall after August 17, I am satisfied from
the credited testimony of Trout, Frye, Kazousky, and
McMunn that they understood, and were meant to
understand, that their future employment depended on
their disavowal of further representation by Local 95. I
find that Respondent refused to hire Frye, Kazousky, and
McMunn because they would not forego their right to
remain members of, and he represented by, a labor
organization. This constitutes a violation of Section 8(a)(3)
and (1)9
E. The Section 8(a)(5) and (1) Allegation's
Respondent contends that it is not a successor to Hattis
and is not therefore obligated to bargain with the
representative of the Hattis engineers. It argues that the
situation here, the termination of a service contract by an
owner of real estate is distinguishable from those cases in
which successorship is usually found, where one subcon-
tractor replaces another, or one employer purchases the
assets or stock of another. It is argued that there is no
continuity between land owner and contractor, since the
former is not generally in the business of supplying the
same services as its contractor, and thus has different labor
needs and management objectives. It is also argued that
there is here not the requisite continuity of the employing
industry in that the work performed by Greengate is not
the same as that done by Hattis, since Hattis continues to
do work for tenants of the mall under direct service
agreements . Finally, Respondent urges that it is not a
successor because it has hired none of the Hattis
9 N L R B v Burns International Security Service, Inc, 406 U S 272
(1962) at In. 5. Barrington Plaza and Tragnieu, Inc., 185 NLRB 962, enfd in
relevant part, N L R B v Tragniew, Inc, 470 F 2d 669 (C.A 9. 1972), Tn
State Maintenance Corporation, 167 NLRB 933, enfd. on the ground that
there was substantial evidence for the Board to find that Respondent had
refused to employ the predecessor's employees because of their union
membership, 408 F 2d 171 (C.A D.C 1968). K B & J Young's Supermar-
employees, was not under an obligation to do so, and
would have violated Section 8(a)(2) if it had granted or
promised recognition to Local 95 while it was in the
process of hiring new employees.
In determining whether there is a substantial continuity
of the business operations or, as it is often referred to, the
same "employing industry," the Board takes into account a
number of factors, not all of which need be present for a
finding of successorship. Among these relevant considera-
tions is whether the new employer is using the same plant
equipment, or employing substantially the same working
force and supervisors, whether the same jobs exist under
similar working conditions, and whether he is offering the
same services.
I find that most of these factors are present here. The
central plant with its chilling and heating equipment, the
elevators, escalators, and electrical equipment which Hattis
operated and maintained for Greengate are owned by
Greengate, and are now operated and maintained by it.
There has been no transfer of physical assets, stock in
trade, or intangibles. The physical plant remains where it
was, and the same operations are being performed there by
employees doing exactly the same work as was done by
Hattis and its employees. In fact, the continuity of
operations is even more apparent when, as here, the owner
of the physical plant takes over the operation of its own
plant and equipment than when one subcontractor is
replaced by another with whom it had no contractual
privity.10 The situation here is not at all analogous to that
suggested by Respondent, that the successorship doctrine
does not encompass the case where a land owner who has
contracted out the building of a structure on his property is
not obligated to hire the contractor's construction workers.
The situation here, rather, is one in which the subcontrac-
tor, Hattis, was engaged in performing a maintenance and
operating function which is just as necessary to Green-
gate's business of operating a shopping center as the
janitorial and security work which have always been
performed by its own employees.
The fact that Hattis may still be doing some work at the
shopping center for individual mall tenants does not impair
the substantial continuity between the work formerly done
by Hattis and now done by Greengate. The three or four
Greengate employees who now work at the central plant
are doing what the Hattis employees did, and if Greengate
is successful in contracting for additional work from its
tenants, as it hopes to do, it will use its own employees, as
Hattis did. The nature of the maintenance work for
Greengate and its tenants remains unchanged whether or
not there has been some contraction or expansion there.
Finally, Respondent cannot rely on the fact that it hired
none of the Hattis employees as establishing that it is not
the successor to Hattis, since it refused to hire them for a
discriminatory reason. If it had fulfilled its obligation
under the Act, and had hired the Hattis engineers without
kets, Inc, 157 NLRB 271, enfd 377 F 2d 463 (CA. 9. 1967); New England
Tank Industries, Inc, 133 NLRB 175, enfd. 302 F2d 273 (CA 1, 1962):
Piasecki Aircraft Corporation, 123 NLRB 348. enfd 280 F.2d 575 (C.A 3,
1960), and Phelps Dodge Corp v. N L R B, 313 U.S 177.
10 Interstate 65 Corp d/b/a Continental Inn, 186 NLRB 248, enfd. in
relevant part 453 F 2d 269 (C.A 6, 1971), cf Emerald Maintenance. Inc, 188
NLRB 867, and Columbus Janitor Service, 191 NLRB 902
GREENGATE MALL, INC. 47
regard to their desire to remain represented by Local 95,
there would have been no occasion to question its
concomitant obligation to bargain with that labor organi-
zation."'
Although the answer to the complaint denied the
appropriateness of the unit alleged therein, no evidence or
argument to the contrary was presented. 1 therefore find
the following unit to be appropriate: All maintenance
operating engineers of Respondent at its shopping center at
the Greengate Mall, Route 30, Greensburg, Pennsylvania,
excluding all other employees and guards, professional
employees, and supervisors as defined in the Act. This is in
effect the same unit as was certified by the Board in 1965
when Hattis was the employer.
I therefore conclude and find that by failing and refusing
on and after August 18, 1972, to recognize and bargain
collectively with Local 95 as the certified representative of
the employees in the appropriate unit, Respondent has
violated Section 8(a)(5) and (1) of the Act.
The complaint also alleges that Overly, Hadrovick, and
Howley violated Section 8(a)(1) by (a) emphasizing to the
Hattis employees the futility of their remaining affiliated
with the Union; (b) by conditioning their employment on
their withdrawal of membership in the Union; and (c) by
promising them economic benefits to induce them to
withdraw from the Union.
The evidence amply supports the first two allegations.
On various occasions, all three Greengate supervisors 12
made it clear to Frye, Kazousky, and McMunn that an
essential condition for their employment was to disavow
the Union as their representative. The evidence for the
final 8(a)(1) allegation, the promise of benefits, is the
statements of the Greengate supervisors to the engineers
that the benefits which Greengate was offering would he
better than those they were getting under the Hattis
contract with Local 95. They did not tell them then what
their hourly rates would be, since that had apparently not
yet been set.
Although it has been determined since the Supreme
Court's decision in Burns, 406 U.S. 272 (1972), that a
successor need not honor or adopt the bargaining
agreement of its predecessor, the Board has thereafter held
that there are circumstances under which the successor
may be obligated to bargain with the representative of the
predecessor's employees whom it has hired, before it fixes
their initial wages and terms of einployment.13 In the cases
where the Board has so held, the successor did in fact hire
all or most of the predecessor's employees, and the Board
therefore relied on the following language in the Burns
decision for its finding that the successor must consult with
the Union before it fixes the terms it proposes to set
initially.14
In the instant case, it is true, Greengate did not "plan to
retain" any of the Hattis employees, but only for
11 Barrington Plaza, supra, and K B & J. Young's Supermarkets, Inc,
supra
12 1 find that Iladrov ck, an assistant mall manager for Rouse at other
shopping centers was in fact a supervisor while on his 2-month tour of duty
at Greengate He interviewed applicants for employment and his recom-
mendations were certainly as effective as those of Howley, an admitted
supervisor
l i Howard Johnson Company, 198 NLRB No 98 and Good Foods
discriminatory reasons. If it had not acted illegally in
rejecting the Hattis engineers because they would not
renounce their union, it would have hired them and the
Union would have retained its majority status in the
Greengate work force of maintenance engineers . It follows
from the rationale of the Board cases cited in footnote 13
that a successor violates Section 8(a)(5) by refusing to
bargain with the representative of the employees whom he
was obligated to hire, over their initial terms of employ-
ment, and by making changes unilaterally in the wages and
employee benefits they had received from the predecessor
employer. I find therefore that by also offering the
engineers benefits which it had not first discussed with
their union, Respondent violated Section 8(a)(1).
THE REMEDY
Having found that the Respondent has committed
certain unfair labor practices , I shall recommend that -it
cease and desist therefrom and take affirmative action to
restore the situation as nearly as possible to what it would
have been absent the unfair labor practices.
I have found that Respondent , if it had not been
discriminatorily motivated , would have preferred to hire
the nonsupervisory Hattis engineers over those it did
employ. It appears , however , that for some periods of time
after August 17, 1972, Respondent has operated with a
working supervisor and two other engineers , while at other
times, during parts of September and October 1972, it
employed an additional engineer . Respondent was entitled
in the first instance , to determine how many engineers it
would employ , basing its decision on its business judgment,
with regard to such factors as how much work it would be
doing for the mall tenants under individual contracts, and
whether the supervisor of the maintenance engineers would
be required to do manual work of the same nature as those
he supervised . On the basis of the record before me, I am
unable to determine whether there are presently sufficient
positions available for the three nonsupervisory engineers,
and I shall therefore recommend that Respondent offer, in
writing, immediate employment to as many of them as
there are positions available , replacing its present nonsu-
pervisory engineers who were hired as of August 17, 1972,
or thereafter . If there are less than three positions to be
filled , it shall offer them to the former Hattis engineers in
the order of their seniority as it accrued with Hattis,
placing those not thereby reached on a preferential hiring
list to be called as further vacancies occur.
I shall also recommend that Respondent make whole
such employees for any loss they may have suffered as a
result of the discrimination practiced against them, by
paying to each an amount of money equal to what he
would have earned at Greengate Mall, absent the discrimi-
nation , from August 18. 1972, to a date 5 days after receipt
of the offer of employment or to the date 5 days after
Manufacturing & Processing Corporation, 200 NLRB No 86 Cf Hecker
Machine, Inc, 198 NLRB No 161
11 "Although a successor employer is ordinarily free to set initial terms
on which it will hire the employees of a predecessor , there will be instances
in which it is perfectly clear that the new employer plans to retain all of the
employees in the unit and in which it will be appropriate to have him
initially consult with the employees ' bargaining representative before he
fixes terms." 406 U .S 272, 294-5
48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt of an offer to place him on a preferential hiring list
(for those for whom no position is presently available), less
their respective net earnings during the backpay period, to
be computed in the manner set forth in F. W. Woolworth
Company, 90 NLRB 289, plus interest at the rate of 6
percent per annum.
1 also recommend that Respondent bargain with Local
95, upon request, with respect to rates of pay, wages, hours,
and other terms and conditions of employment for the
appropriate unit of maintenance engineers, and make them
whole for any benefits, including health, welfare, and
pension payments earned by the employees and due to the
Union, which were withheld by virtue of any unilateral
changes Respondent may have instituted in the terms and
conditions of employment, including those unilateral
changes it made immediately upon its takeover from
Hattis. Such payments shall be continued until Respondent
negotiates in good faith with the Union to agreement or
impasse.15
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Union of Operating Engineers, Local
95-95A, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. All maintenance operating engineers of Respondent
at its shopping center at the Greengate Mall, Route 30,
Greensburg, Pennsylvania, excluding all other employees
and guards, professional employees and supervisors as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. Since August 18, 1972, Local 95 has been the
exclusive representative of all employees in the aforesaid
bargaining unit within the meaning of Section 9(a) of the
Act.
5. By failing and refusing, at all times since August 18,
1972, to bargain collectively with Local 95 as the exclusive
representative of the employees in the appropriate unit,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
6. By implementing rates of pay, wages, hours, and
other terms and conditions of employment without
consulting with Local 95, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
7. By failing and refusing to employ the maintenance
engineers who had been in the bargaining unit represented
by Local 95, unless they would renounce their right to
remain members in, and be represented by said union,
Respondent has discriminated in regard to their hire or
tenure of employment, and has thereby discouraged
membership in a labor organization, within the meaning of
Section 8(a)(3) of the Act.
8. By the foregoing conduct, by emphasizing to the
maintenance engineers the futility of remaining affiliated
with the Union, and by promising them economic benefits
to induce them to renounce their union affiliation,
Respondent has committed unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
75 My recommendations in this paragraph are patterned on the orders Manufacturing & Prrxessrng Corporation. supra
which the Board issued in Howard Johnson ( ompany, supra, and Good Foods