Sierra Realty Corp.

National Labor Relations Board - Board Decisions

Jun 9, 1995

317 N.L.R.B. 832 (N.L.R.B. 1995)

832
317 NLRB No. 117
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates are in 1992.
Sierra Realty Corp. and Local 32B–32J, Service
Employees International Union, AFL–CIO.
Case 2–CA–25833
June 9, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 25, 1993, Administrative Law Judge Joel
P. Biblowitz issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
supporting briefs, and the Respondent filed cross-ex-
ceptions and a supporting brief. The Respondent filed
an answering brief, and the General Counsel filed both
an answering brief and a reply brief to the Respond-
ent’s answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent’s refusal to
hire former employees of Supreme Building Mainte-
nance Corporation (Supreme) was not a violation of
Section 8(a)(3) of the Act. Having found that the Re-
spondent did not unlawfully refuse to hire the former
Supreme employees, he also found that the Respondent
was not a successor employer to Supreme and that it
did not violate Section 8(a)(5) by refusing to bargain
with the Union over employees’ terms and conditions
of employment. We disagree with the judge for the
reasons set forth below.
The Respondent manages residential and commercial
real estate properties throughout New York City, in-
cluding a building located at 12 East 46th Street. In
1984 the Respondent subcontracted the building’s
cleaning and maintenance service to Supreme, which
was signatory to a multiemployer bargaining agree-
ment with the Union covering employees in a single,
multiemployer bargaining unit.
It is undisputed that by 19921 the Respondent was
experiencing financial losses managing the 46th Street
building. To help stem these losses, the Respondent’s
president, John Samuelson, decided to eliminate its
service contract with Supreme, and in February he in-
formed Supreme’s president, Stephen Engel, of his de-
cision. Specifically, he told Engel that the cost of oper-
ating with Supreme was too high ‘‘with the hours and
the prices’’ it was paying for Supreme’s employees
and that the Respondent could save money ‘‘if we
hired our own people . . . at lower fringe benefits and
wages.’’ Engel offered to lower Supreme’s fee, but
Samuelson rejected it as insufficient to meet its goal
of saving on labor costs.
On April 14 Supreme received official notice from
the Respondent that its service contract would be can-
celed effective May 31. Supreme promptly notified the
Union of this fact and told the Union that the Re-
spondent would assume the building’s cleaning and
maintenance work. On April 29 Union Official John
Bevona contacted the Respondent’s building manager,
William Van Loan, to inquire whether Supreme’s em-
ployees would be retained by the Respondent. Van
Loan responded that that decision would be made by
his superiors who were out of town for a week.
Bevona telephoned Van Loan two more times over the
next 2 weeks, urging the Respondent to hire the Su-
preme employees, but each time Van Loan told him
that his superiors were still out of town and that he
was therefore unable to give him a definitive answer.
On May 10 and 11, an advertisement for two positions
as porters with the Respondent appeared in the Spanish
newspaper El Diario. Samuelson testified that he au-
thorized the placement of this advertisement because
‘‘we had to hire help.’’
Meanwhile, at the same time that the help-wanted
advertisements were appearing in the newspaper and
while Bevona was in telephone contact with Van Loan,
Kevin McCulloch, the Union’s assistant to the presi-
dent, sent Van Loan a mailgram, which made ‘‘uncon-
ditional application for continued employment’’ of
Supreme’s two employees working at the 46th Street
building and requested Van Loan to contact Bevona
for ‘‘the purpose of . . . commenc[ing] negotiations.’’
The Union received no response.
Approximately 2 weeks prior to the May 31 termi-
nation of the service contract, Oswaldo De LaRosa and
Hector Delgado, Supreme’s employees currently as-
signed to the 46th Street building, asked Van Loan
what would become of their jobs after May 31. Van
Loan suggested that they contact the Union and invoke
their contractual seniority rights, which Van Loan be-
lieved would enable them to retain their employment
with Supreme.
On June 1 the Respondent took over the cleaning
and maintenance operations of its 46th Street building,
employing newly hired employees to perform the same
work that Delgado and De LaRosa performed but at
reduced hours and lower wages. On June 25 the Union
resubmitted to the Respondent another unconditional
application for employment on behalf of Delgado and
De LaRosa. Van Loan responded that he was contrac-
tually prohibited from hiring the two employees due to
a ‘‘non-hiring’’ clause in the expired service contract
with Supreme in which the Respondent promised to re-
frain from hiring any Supreme employees during or
833SIERRA REALTY CORP.
2 247 NLRB 1492 (1980).
3 417 U.S. 249, 262 fn. 8 (1974).
4 Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 183 (1941).
following termination of the contract. Van Loan further
stated that due to this contractual prohibition, the Re-
spondent hired ‘‘replacement employees,’’ neither of
whom are represented by the Union and, accordingly,
the Respondent was refusing the Union’s request to en-
gage in contract negotiations.
The Judge’s Decision
The judge found that the Respondent violated nei-
ther Section 8(a)(3) nor (5) as alleged and dismissed
the complaint. The judge found that the Respondent
terminated the Supreme contract because its 46th Street
building was losing money and that it was imperative
for the Respondent to look for ways to cut costs. He
found that there were two obvious choices by which
this goal could be achieved and that the Respondent
executed both of them—canceling the Supreme con-
tract with its high operational costs and hiring individ-
uals to work fewer hours at lower wages and fringe
benefits than the Supreme employees. Viewed in this
economic light, the judge framed the issue in this case
as follows:
Whereas it is unlawful to refuse to hire employees
in order to avoid a successorship obligation and
the resulting obligation to recognize and bargain
with the Union, is it also a violation of the Act
to refuse to hire employees to avoid paying the
higher wages under a union contract that the pred-
ecessor employer paid?
The judge answered this question in the negative
and gave two reasons for his conclusion. First, he
noted that there must be ‘‘substantial evidence of
union animus’’ to find a violation, and he found that
the Respondent harbored none in this case as evi-
denced by the fact that after May 31 it retained Su-
preme with its union work force as the maintenance
contractor at another building which it managed on
31st Street, and that it eventually hired Delgado in July
as its own employee at that building. The judge also
noted that when Delgado and De LaRosa inquired
about their continued employment, Van Loan encour-
aged them to assert their contractual seniority rights
which would enable them to remain employed with
Supreme. Second, relying on Vantage Petroleum
Corp.,2 the judge found that because Delgado and De
LaRosa earned more with Supreme than what the Re-
spondent was willing to pay for the same work, it had
reason to assume that the two individuals would not
accept its lower wages and fringe benefits and, there-
fore, the Respondent was justified in not extending job
offers to them.
In sum, the judge concluded from the foregoing that
the Respondent’s refusal to hire Delgado and De
LaRosa was based, not on an unlawful attempt to
avoid a successorship obligation, but, rather, was a
lawful attempt to avoid the two employees’ union
wage scale. Accordingly, because he found that the
Respondent did not violate Section 8(a)(3) by failing
to hire Delgado and De LaRosa, the judge concluded
that the Respondent was not a successor to Supreme
and did not violate Section 8(a)(5) by refusing the
Union’s request to engage in collective bargaining.
Discussion
The basic legal principles applicable to this case are
not in dispute and have been stated on many occasions
in the past. An employer, like the Respondent, who
takes over the operations of a previous employer is en-
titled to wipe the slate clean by not hiring any or all
of the employees of its predecessor. This freedom of
action, however, is not without limit. As the Supreme
Court observed in Howard Johnson Co. v. Hotel &
Restaurant Employees:3
[I]t is an unfair labor practice for an employer to
discriminate in hiring or retention of employees
on the basis of union membership or activity. . . .
Thus, a new owner could not refuse to hire the
employees of his predecessor solely because they
were union members or to avoid having to recog-
nize the union.
This is precisely the Respondent’s posture in this
case. As noted in the factual narrative above, Respond-
ent President Samuelson stated in his discussion with
Supreme’s president that the Respondent was suffering
financial losses at the 46th Street building due in part
to the high cost of operating with Supreme, and that
one way it could save money would be ‘‘if we hired
our own employees’’ and paid them ‘‘lower fringe
benefits and wages.’’ As the Respondent freely admits,
it was the higher wages which Supreme paid its em-
ployees which made it ‘‘perfectly clear that the Re-
spondent did not intend to hire Supreme’s employees.’’
(R. Br. at 9.) Nevertheless, the judge justified this spe-
cific refusal to hire on the grounds that the Respondent
harbored no union animus and its conduct constituted
a lawful attempt to avoid the union wage scale as op-
posed to an unlawful attempt to avoid successorship
obligations. We disagree.
Refusing to hire employees in order to avoid their
union wage scale is the plainest form of 8(a)(3) dis-
crimination and is in no way lawfully distinguishable
from a refusal to hire employees in order to avoid a
successorship obligation. Collectively, such conduct
constitutes discrimination against employees’ ‘‘union
affiliation’’ and, as the Supreme Court stated long ago
in Phelps Dodge,4 just as ‘‘workers cannot be dis-
missed from employment because of their union affili-
834 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 NLRB v. Great Dane Trailers, 388 U.S. 26, 33 (1967).
6 NLRB v. Erie Resistor Corp., 373 U.S. 221, 231 (1963).
7 388 U.S. at 34.
8 251 NLRB 1083 (1980), enfd. on other grounds 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
9 Shortway Suburban Lines, 286 NLRB 323, 326–327 (1987),
enfd. 862 F.2d 309 (3d Cir. 1988). See also Limestone Apparel
Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982).
10 247 NLRB 1492.
ations,’’ neither can they be denied employment be-
cause of their union affiliation. There, like here, an
employer refused to hire two union members and de-
fended its conduct by arguing that Section 8(3) of the
Act, the predecessor of Section 8(a)(3), should not be
read as forbidding discrimination against the wages of
union members seeking employment (as opposed to in-
cumbent union employees). In rejecting this argument
and finding the respondent’s conduct unlawful, the
Court explained (id. at 185):
Discrimination against union labor in the hiring of
men is a dam to self-organization at the source of
supply. The effect of such discrimination is not
confined to the actual denial of employment; it in-
evitably operates against the whole idea of the le-
gitimacy of organization. In a word, it undermines
the principle which, as we have seen, is recog-
nized as basic to the attainment of industrial
peace.
We rely on this reasoning from Phelps Dodge to con-
clude that the Respondent’s refusal to hire Delgado
and De LaRosa because of their union wage scale was
discriminatory in violation of Section 8(a)(3).
We recognize, of course, that ‘‘inquiry under
§ 8(a)(3) does not usually stop at [the] point’’ of find-
ing discriminatory conduct; ‘‘the finding of a violation
normally turns on whether the discriminatory conduct
was motivated by an antiunion purpose.’’5 Contrary to
the judge, we do not find this element lacking here.
Rather, we find that the Respondent’s refusal to hire
its predecessor’s union employees constituted conduct
which bore ‘‘its own indicia of intent’’6 and, therefore,
in light of this direct evidence of unlawful intent, we
need not search elsewhere, as the judge did, for inde-
pendent circumstantial evidence of animus from which
to infer that the Respondent was motivated by an
antiunion purpose. Accordingly, we find it irrelevant
that the Respondent may have continued to maintain a
contractual relationship with the Union at its other
buildings or that it eventually hired Delgado at one of
those facilities. Nor can we accept the judge’s conclu-
sion that Supreme’s higher union wage scale estab-
lishes a valid economic defense for the Respondent’s
decision not to hire Delgado and De LaRosa. In effect,
the judge would hold that the Respondent had what the
Court described in Great Dane Trailers as a ‘‘legiti-
mate and substantial’’ business justification for its con-
duct.7 We disagree. Such purported justification cannot
justify conduct that is, in fact, related to the employ-
ees’ union affiliation. They were refused hire solely
because of their union wages and the unlawfulness of
that decision is in no way minimized or affected by the
fact the Respondent may have believed that by hiring
them it would cost it money or time and effort in bar-
gaining with the Union. Indeed, if these kinds of busi-
ness reasons could justify discrimination, the proscrip-
tions and protections of the Act would be rendered
largely nugatory.
The Respondent, citing Wright Line,8 attempts to
justify its refusal to hire Delgado and De LaRosa on
the ground that they would not have accepted the
lower wages that it was offering. In this regard, the
Respondent asserts that the two employees never made
an unconditional application for employment, but rath-
er attached economically unacceptable preconditions to
their reemployment, i.e., application of the wages and
benefits they enjoyed with Supreme and, therefore, the
two employees would not have been hired even absent
their union affiliation. We reject this defense.
Contrary to the Respondent’s contention, Delgado
and De LaRosa did not place any conditions on their
employment applications, as evidenced by the mail-
gram described above in which the Union’s presi-
dential assistant, McCulloch, stated: ‘‘[W]e make un-
conditional application for continued employment of
Hector Delgado and Oswaldo De LaRosa . . . .’’ We
do not find, as urged by the Respondent, that the un-
conditional nature of this application for employment
was belied by McCulloch’s testimony at the hearing
that whenever a cleaning contractor loses an account,
the Union’s practice is to seek to insure that the new
contractor ‘‘hires the [current] employees and main-
tains the wages and benefits.’’ It is clear that the Re-
spondent did not base its refusal to hire the two em-
ployees on McCulloch’s statement because it was not
communicated until the hearing in this matter, long
after the hiring decision was made, and thus to rely on
that statement now amounts to pretextual post hoc ra-
tionalization.9
Further, there is no evidence that the Union’s prac-
tice, as expressed by McCulloch, was ever promul-
gated contemporaneously with the Union’s uncondi-
tional application for employment, thereby rendering
the employment application ambiguous. Rather, there
is nothing in the record to support the Respondent’s
contention that Delgado and De LaRosa would have
declined an offer of employment by the Respondent
even if one had been made at the Respondent’s lower
wage rates. It is for this reason that Vantage Petroleum
Corp.,10 cited by the judge and relied on by the Re-
spondent, is inapposite. In that case the employees
835SIERRA REALTY CORP.
11 We also reject the Respondent’s two ‘‘affirmative defenses’’
that the ‘‘non-hiring’’ clause in the service contract with Supreme
precluded it from hiring Delgado and De LaRosa, and that the prop-
er course of action by the two employees was to file a grievance
alleging that Supreme was obligated under its collective-bargaining
agreement with the Union to offer them alternative employment. The
nonhiring clause defense, like the McCulloch statement, was asserted
long after the Respondent made its hiring decisions and thus was
not, in fact, relied on in refusing to employ Delgado and De LaRosa.
As for the contractual grievance that the two employees may have
against Supreme, we find that irrelevant to the issues in this case
regarding the Respondent’s liability under the Act.
12 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
13 Fall River Dyeing v. NLRB, 482 U.S. 27 (1987).
14 Fall River, 482 U.S. at 43 (quoting Golden State Bottling Co.
v. NLRB, 414 U.S. 168, 184 (1973)).
conditioned their job applications on their existing
union wages and benefits.11
Having concluded that the Respondent violated Sec-
tion 8(a)(3) in its refusal to hire Delgado and De
LaRosa, we next consider whether the Respondent vio-
lated Section 8(a)(5) by refusing to bargain with the
Union with respect to terms and conditions of employ-
ment. The answer to this question depends on whether
the Respondent is a successor employer to Supreme.
The threshold test developed by the Board and ap-
proved by the Supreme Court in Burns12 and Fall
River Dyeing13 for determining successorship is: (1)
whether a majority of the new employer’s work force
in an appropriate unit are former employees of the
predecessor employer; and (2) whether the new em-
ployer conducts essentially the same business as the
predecessor employer. We find that both prongs of this
test have been met here.
With respect to the first prong, it is now well settled
that where, as here, an employer is found to have en-
gaged in a discriminatory refusal to hire its prede-
cessor’s employees, the Board infers that all the former
employees would have been retained, absent the un-
lawful discrimination. Love’s Barbeque Restaurant No.
62, 245 NLRB 78, 82 (1979), enfd. in relevant part
sub nom. Kallman v. NLRB, 640 F.2d 1094 (9th Cir.
1981). Under such circumstances the Board presumes
that the union’s majority status would have continued.
State Distributing Co., 282 NLRB 1048 (1987). In
light of our finding that the Respondent violated Sec-
tion 8(a)(3) by refusing to hire Delgado and De
LaRosa, we find that the first prong of the
successorship test has been satisfied.
As to the second prong of the successorship test,
i.e., whether the predecessor’s business has been con-
tinued by the new employer without substantial
change, we consider
whether the business of both employers is essen-
tially the same, whether the employees of the new
company are doing the same jobs in the same
working conditions under the same supervisors;
and whether the new entity has the same produc-
tion process, produces the same products, and ba-
sically has the same body of customers.
Fall River, supra, 482 U.S. at 43. Applying these fac-
tors here, we find that the Respondent continued
Supreme’s business in substantially unchanged form.
Thus, on the day immediately following expiration of
its cleaning contract with Supreme, the Respondent
commenced performance of the same cleaning oper-
ations, servicing the 46th Street building in substan-
tially the same manner as Supreme and utilizing em-
ployees who performed the same functions and exer-
cised the same skills as Supreme’s employees.
The Respondent argues that it cannot be a successor
because its business is managing real estate rather than
performing maintenance services, like Supreme, and,
therefore, it fails the essential requirement of Fall
River that the business of both employers be the same.
The Respondent misunderstands Fall River. The Court
made it clear in that case that the factors it set out for
determining whether a new employer has continued the
same business operations as the predecessor are to be
assessed primarily from the perspective of the employ-
ees. Thus, the question is ‘‘whether those employees
who have been retained will . . . view their job situa-
tions as essentially unaltered.’’14 From the perspective
of Delgado and De LaRosa in this case, they would
have perceived the Respondent as an entity which sim-
ply displaced Supreme as a cleaning and maintenance
contractor and, as such, would have viewed their job
situation as essentially unaltered in light of the above
evidence showing that the Respondent effectuated no
significant change in the nature of the cleaning oper-
ation after the takeover.
Nor do we find merit in the Respondent’s contention
that its employment of different supervisors and substi-
tution of different terms and conditions of employment
preclude it from being deemed a successor employer.
Except for the lower wages which, as found infra,
were unlawfully changed, the only other significant
change in employment conditions effectuated by the
Respondent was the hiring of a part-time work force
to work fewer hours. However, as the Third Circuit ex-
plained, the successor employer ‘‘may not avoid its
obligation under the Act to negotiate with a properly
recognized union by merely changing the hours of
work by its employees while still maintaining the same
nature and type of services previously provided by [the
predecessor employer].’’ Systems Management v.
NLRB, 901 F.2d, 279, 304 (3d Cir. 1990). Likewise,
the Respondent cannot escape this obligation by em-
ploying different supervisors. See Boston-Needham In-
dustrial Cleaning Co., 216 NLRB 26, 27 (1975), enfd.
526 F.2d 74 (1st Cir. 1975) (Where ‘‘other factors in-
dicate that essentially the same operation has been con-
tinued,’’ the fact that there may not be ‘‘substantial
836 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Stewart Granite Enterprises, 255 NLRB 569, 573 (1981). See
also G.T. & E. Data Services Corp., 194 NLRB 719, 720–721
(1971).
16 We find no merit in the Respondent’s contention that
successorship principles are inapplicable where, as here, it purchased
no assets of Supreme and instead ‘‘cease[d] to purchase a service
from a company and provide[d] the service through his own employ-
ees . . . .’’ Burns itself was a successorship case that did not in-
volve a purchase of assets by the new employer. Further, in Saks
Fifth Avenue, 247 NLRB 1047 (1980), enfd. in relevant part 634
F.2d 681 (2d Cir. 1980), the Board applied the successorship doc-
trine to a situation in which an employer, like the Respondent,
ceased purchasing a service from a company and provided the serv-
ice with its own employees.
continuity in employment of the predecessor’s super-
visory staff’’ is not ‘‘of overriding importance.’’).
Remaining for consideration under the test for
successorship is whether Delgado and De LaRosa con-
stitute an appropriate unit for bargaining. We find that
they do. Thus, although it is true that the Respondent
took over only a portion of Supreme’s operations
whose employees, including Delgado and De LaRosa,
were represented in a single multiemployer bargaining
unit, the Board has stated ‘‘that successorship obliga-
tions are not defeated by the mere fact that only a por-
tion of a former union-represented operation is subject
to the sale or transfer to a new owner, so long as the
employees in the conveyed portion constitute a sepa-
rate appropriate unit, and they comprise a majority of
the unit under the new operation.’’15 Mere diminution
in the employee complement is no impediment to a
finding of successorship. Lloyd Flanders, 280 NLRB
1216, 1219 (1986).
In addition, it is well-established Board policy to
find a single-location unit presumptively appropriate.
Orkin Exterminating Co., 258 NLRB 773 (1981). Un-
like the respondent in P. S. Elliott Services, 300
NLRB 1161 (1990), the Respondent here has not pre-
sented sufficient evidence to meet its burden of over-
coming this single-location unit presumption. Indeed, it
presented no evidence pertaining to this question. Ac-
cordingly, we find that a unit consisting of porters at
the 12 East 46th Street building is an appropriate unit.
For these reasons, we find that the Respondent
meets all the criteria of a successor employer and that
by refusing the Union’s request to bargain it violated
Section 8(a)(5).16 In addition, we find that the Re-
spondent violated Section 8(a)(5) by unilaterally reduc-
ing rates of pay and eliminating benefits of employees
provided for in the collective-bargaining agreement be-
tween Supreme and the Union. In making this finding,
we acknowledge, as the Respondent points out, that a
successor employer is ordinarily free to set initial
terms on which it will hire the predecessor’s employ-
ees. Burns, 406 U.S. at 294–295. However, this right
is forfeited where, as here, the successor has unlaw-
fully failed to hire employees because of their union
affiliation. State Distributing Co., 282 NLRB 1048
(1987); U.S. Marine Corp., 293 NLRB 669, 671–672
(1989), enfd. en banc 944 F.2d 1305 (7th Cir. 1991).
The Respondent, therefore, was not entitled to set the
initial terms of employment without first consulting the
Union. Id.
THE REMEDY
Having found that the Respondent has violated Sec-
tion 8(a)(1), (3), and (5) of the Act, we shall order it
to cease and desist and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
Having found that the Respondent discriminatorily
refused to hire Hector Delgado and Oswaldo De
LaRosa because of their union affiliation, we shall
order the Respondent to offer these employees posi-
tions for which they would have been hired, absent the
Respondent’s unlawful discrimination or, if those posi-
tions no longer exist, to substantially equivalent posi-
tions, dismissing, if necessary, any and all persons
hired to fill such positions. We shall also order the Re-
spondent to make whole Delgado and De LaRosa for
the loss of earnings and other benefits they have suf-
fered as a result of the Respondent’s discriminatory
conduct. Backpay shall be computed in accordance
with the formula set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).
Having found that the Respondent also has unlaw-
fully refused to bargain collectively with the Union,
we shall order that the Respondent, on request, recog-
nize and bargain collectively in good faith with the
Union concerning rates of pay, wages, hours, and other
terms and conditions of employment about which the
Respondent would have been required to bargain had
the Union’s lawful status been acknowledged on June
1, 1992—the date that the Respondent began cleaning
and maintenance operations at its 12 East 46th Street
building. In addition, we shall order the Respondent to
cancel, on request by the Union, the changes in wages
and benefits that it made when it began operations, and
to make Delgado and De LaRosa whole for the losses
they suffered because of these unilateral changes from
June 1, 1992, until the Respondent negotiates in good
faith with the Union to agreement or to impasse.
Wages shall be computed as prescribed in Ogle Pro-
tection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), plus interest as prescribed in New
Horizons, supra. The Respondent shall remit all pay-
ments it owes to any employee benefit funds, including
any additional amounts due the funds in accordance
with Merryweather Optical Co., 240 NLRB 1213,
1216 fn. 7 (1979). The Respondent shall also reim-
burse its employees in the manner set forth in Kraft
Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), with interest
as prescribed in New Horizons, supra, for any expenses
837SIERRA REALTY CORP.
17 To the extent that an employee has made personal contributions
to a fund that are accepted by the fund in lieu of the Respondent’s
delinquent contributions during the period of the delinquency, the
Respondent will reimburse the employee, but the amount of such re-
imbursement will constitute a setoff to the amount that the Respond-
ent otherwise owes the fund.
18 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.’’
1 See NLRB v. Burns Security Services, 406 U.S. 272 (1972).
ensuing from the Respondent’s failure to make those
payments.17
ORDER
The National Labor Relations Board orders that the
Respondent, Sierra Realty Corporation, New York,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire employees because of their
union affiliation and to avoid an obligation to bargain
with Local 32B–32J, Service Employees International
Union, AFL–CIO.
(b) Failing to recognize and bargain with the Union
as the exclusive collective-bargaining representative of
its employees in the following unit, including making
changes in the rates of pay and benefits of the employ-
ees in this unit without notice to and consultation with
the Union:
All porter employees employed by the Respond-
ent at its 12 East 46th Street building, excluding
office clerical employees, guards, professional
employees and supervisors as defined in the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Hector Delgado and Oswaldo De LaRosa
full and immediate reinstatement to their former posi-
tions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
seniority or other rights which they have formerly en-
joyed, discharging if necessary other employees who
have been hired in their places.
(b) Make Delgado and De LaRosa whole for the
loss of earnings they have suffered due to the discrimi-
nation practiced against them, in the manner described
in the remedy.
(c) On request, bargain with the Union as the exclu-
sive representative of the employees in the above ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement.
(d) On request of the Union, cancel any changes in
the rates of pay and benefits or other terms and condi-
tions of employment that existed immediately before
the takeover of cleaning and maintenance services at
its 12 East 46th Street building, and make the employ-
ees whole by remitting all wages and benefits that
would have been paid absent such changes from June
1, 1992, until it negotiates in good faith with the
Union to agreement or to impasse in the manner de-
scribed in the remedy.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its 12 East 46th Street building copies of
the attached notice marked ‘‘Appendix.’’18 Copies of
the notice, on forms provided by the Regional Director
for Region 2, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
MEMBER COHEN, concurring.
I concur in the result, but not its full rationale.
The judge found the following facts:
Samuelson (Respondent’s president) was clearly
experienced in the field and knew that if he hired
Delgado and De LaRosa [the two employees of
the predecessor] he would have to recognize the
Union at the building and would probably end up
paying them the same wage as Supreme (the pred-
ecessor) paid them. As they were good employees
and knew the building, the only reason for not
hiring them was to avoid recognizing the Union
and paying the Union scale.
In sum, the Respondent knew that its hiring of the
predecessor’s employees would result in a bargaining
obligation to the Union.1 The Respondent also believed
that the presence of the Union would mean that the
Respondent would probably have to pay the wages of
the predecessor. The Respondent therefore decided to
avoid the Union by not hiring the predecessor’s em-
ployees. Such discrimination, in order to avoid union-
ization, is unlawful under Section 8(a)(3).
838 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941).
3 Erie Resistor Corp. v. NLRB, 373 U.S. 221 (1963).
4 See Wright Line, 251 NLRB 1083 (1980).
1 Unless indicated otherwise, all dates referred to here relate to the
year 1992.
Unlike my colleagues, I do not believe that Phelps
Dodge2 is particularly helpful. That is the seminal case
for the proposition that applicants are employees. No
one contends the contrary here. Similarly, I do not be-
lieve that the principles of Erie Resistor3 are apposite.
It is unnecessary to say that the Respondent’s refusal
to hire the predecessor’s employees bore ‘‘its own in-
dicia of intent.’’ Rather, as discussed above, the evi-
dence itself establishes that the Respondent’s intent
was to avoid unionization.
Since the General Counsel established a prima facie
case that the refusal to hire was unlawfully motivated,
and inasmuch as I agree with my colleagues that an af-
firmative defense was not established, I agree that the
refusal to hire was unlawful.4
I also agree with the 8(a)(5) conclusions of my col-
leagues. However, in doing so, I confine myself to the
facts of this case. That is, but for the unlawful 8(a)(3)
motive, the Respondent would have hired all of the
predecessor’s unit employees, and those employees
would have comprised all of the Respondent’s unit. In
these circumstances, the Respondent was not free to
set the initial terms and conditions of employment.
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 employees previously
employed by Supreme Building Maintenance Corpora-
tion because of their union affiliation or to avoid an
obligation to bargain with the Local 32B–32J, Service
Employees International Union, AFL–CIO.
WE WILL NOT fail to recognize and bargain with the
Union, as the exclusive collective-bargaining represent-
ative of the employees in the following unit, including
making changes in the rates of pay and benefits or
other terms and conditions of employment of the em-
ployees in this unit without notice to and consultation
with the Union:
All employees formerly employed by Supreme at
our 12 East 46th Street building excluding office
clerical employees, guards, professional employ-
ees, and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you or any other employees in
the exercise of the rights guaranteed you by Section 7
of the Act.
WE WILL, on the request of the Union, bargain with
it as the exclusive representative of the employees in
the above unit concerning their terms and conditions of
employment and, if an understanding is reached, em-
body it in a signed contract if asked to do so.
WE WILL, on request of the Union, cancel any
changes from the rates of pay and benefits or other
terms and conditions of employment that existed im-
mediately before our takeover of Supreme’s operations
and make the employees whole by remitting all wages
and benefits that would have been paid absent such
changes from June 1, 1992, until we negotiate in good
faith with the Union to agreement or impasse.
WE WILL offer to employees formerly employed by
Supreme at our 12 East 46th Street building immediate
and full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed and discharging
if necessary other employees who have been hired in
their place, and WE WILL make them whole for the loss
of earnings and other benefits resulting from our un-
lawful conduct, less any net interim earnings, plus in-
terest.
SIERRA REALTY CORP.
Suzanne Sullivan, Esq., for the General Counsel.
Sidney Orenstein, Esq. (Finkelstein, Bruckman, Wohl, Most
& Rothman), for the Respondent.
Paul Galligan, Esq. and Ron Goldman, Esq. (Manning,
Raab, Dealy & Sturm), for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on May 19 and 20, 1993, in New York,
New York. The complaint here, which issued on August 26,
1992,1 was based on an unfair labor practice charge filed on
June 29 by Local 32B–32J, Service Employees International
Union, AFL–CIO (the Union). The complaint alleges that Si-
erra Realty Corp. (Respondent) violated Section 8(a)(1) and
(3) of the Act by terminating the employment of Hector
Delgado and Oswaldo De LaRosa, who had been employees
of Supreme Building Maintenance Corporation (Supreme),
whose employees are represented by the Union, and which
had been the building maintenance contractor for Respondent
at its building (the building) at 12 East 46th Street in the city
and State of New York. It is alleged that on about April 30,
Respondent terminated its contract with Supreme and since
that time has continued to perform the work in basically un-
changed from and is a successor to Supreme. It is further al-
leged that on about June 1, Respondent hired replacement
839SIERRA REALTY CORP.
employees, unilaterally changed the hours, wages, benefits,
and other terms and conditions of employment of the re-
placement employees, in violation of Section 8(a)(1) and (5)
of the Act.
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation with an office and
place of business in New York, New York, has been engaged
in the business of the management of residential and com-
mercial real estate, including the building. Annually, Re-
spondent derives gross revenue in excess of $50,000 for
services performed for customers located outside the State of
New York. Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE FACTS
The building, located at 12 East 46th Street in the city and
State of New York, is owned by a partnership, one of whose
partners is John Samuelson, who is also the president and
chief executive officer of Respondent. Respondent manages
real estate and acts as real estate brokers as well. The build-
ing is one of the properties managed by Respondent. Su-
preme, which has no common ownership with Respondent or
with the building, is engaged as a building maintenance con-
tractor. Its maintenance employees are represented by the
Union through Supreme’s membership in the Service Em-
ployers Association, which had a collective-bargaining agree-
ment with the Union effective from January 1, 1990, through
December 31. From 1984 through May, Respondent per-
formed the maintenance work at the building, pursuant to a
agreement with Supreme, using its (Supreme’s) employees.
For this service, Supreme charged Respondent a certain per-
centage over the gross payroll of the employees it employed
at the building. The most recent employees of Supreme at
the building were Hector Delgado and Oswaldo De LaRosa.
The agreement between Supreme and Respondent for the
maintenance of the building is by letter dated July 19, 1984,
and provides that Supreme will pay the employees and bill
Respondent for the gross payroll, ‘‘plus a fringe of 50.50%.’’
This letter is from Stephen Engel, Supreme’s president and
was written to Samuelson, but was not signed by him. There
is also a later letter, dated August 19, 1987, from Joseph
Marino, Supreme’s account executive to William Van Loan,
vice president and an agent of Respondent. The letter at-
taches a 10-page specification for maintenance services at the
building. One part of this specification is a ‘‘Non-hiring
clause,’’ which provides that Respondent shall not employ or
hire any of the Supreme employees. Engel testified that he
was not aware that Marino had sent this to Respondent, but
this will be discussed more fully below. Marino signed the
letter and specification, but it was never signed by Respond-
ent. A letter that Supreme sent to Respondent dated March
9, sets forth the ‘‘billing factors’’ for the building. In addi-
tion to the usual payroll expenses, it states 3 percent for su-
pervision, 7 percent for supplies and uniforms, and 20 per-
cent for administrative overhead and profit.
In about February, Engel receive a telephone call from
Samuelson saying that he wanted to see him. Engel went to
Samuelson’s office, and Samuelson told him that the building
was not doing well financially, that he was going to dis-
continue Supreme’s service in the building, and that he
would notify him formally of the change in about May. He
testified that Samuelson said that he was going to make ar-
rangements with another union for the people. Engel offered
to reduce his fee arrangement at the building if it would help
Respondent. Samuelson said that any such reduction would
be insignificant compared to the amount Respondent was
looking to save. Samuelson testified that the building was
losing money, because of vacancies and rent reductions, to-
gether with high operating costs. He determined that the
building could save money ‘‘if we hired our own people we
would have less hours at lower fringe benefits and wages.’’
At his meeting with Engel he told him that the building was
losing money and that he was going to cancel Supreme’s
contract, hire his own employees, and reduce the number of
hours. Engel offered some relief, but Samuelson rejected the
offer as minimal. He testified that he never said that he was
going to bring another union into the building, and did not
do so. What he told Engel was that he didn’t know if the
Union would end up in the building.
On about April 14, Respondent informed Supreme that it
was canceling its maintenance contract at the building, effec-
tive May 31. On April 28, Supreme sent the required notifi-
cation to the Union that it was losing this contract effective
May 31. John Bevona, a union chairman, testified that after
receiving this notice from Supreme at the end of April he
called Van Loan, who did not testify. He identified himself,
and told him that Supreme had notified the Union that they
had canceled Supreme’s contract at the building effective the
end of May. He asked Van Loan if he was going to employ
the existing employees directly or whether he was going to
contract out the work. Van Loan said that he was not sure;
it was up to the building’s principals who were out of town
and would not return until May 4 or 5. Bevona asked Van
Loan to call him back at that time. When Van Loan did not
call him, Bevona called Van Loan on May 5. He asked Van
Loan if the principals of the building had made a decision
about the maintenance of the building after Supreme’s con-
tract expired. He said that they had not yet returned and
would return by May 12. On that day Bevona again called
Van Loan and asked him what the principals of the building
had decided. Van Loan said that they had not yet made a de-
cision, but as soon as they did, he would contact Bevona; he
never did.
After learning that Supreme was losing the maintenance
contract at the building, Kevin McCulloch, assistant to the
president of the Union, sent a telegram to Respondent. The
telegram is undated. It states that the Union represents
Supreme’s employees at the building and that the Union has
been advised that Respondent was going to perform the
maintenance work at the building on its own. It makes ‘‘un-
conditional application for continued employment’’ of
Delgado and De LaRosa at the building, and requests that
Respondent contact Bevona. Having received no response,
McCulloch sent an identical letter to Respondent on June 25.
Respondent, by Van Loan, responded by letter dated July 6.
840 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The letter states that Respondent’s contract with Supreme
provides that they would not hire Supreme’s employees dur-
ing or following termination of their contract, and that Re-
spondent therefore hired replacement employees and there-
fore cannot offer employment to either Delgado or De
LaRosa. The letter concluded: ‘‘Since Local 32B–32J does
not represent the employees at 12–14 East 46th Street, we
cannot engage in negotiations with your union.’’ After re-
ceiving this letter, McCulloch called Engel and asked him if
his contract with Respondent contained a restriction on Re-
spondent employing his employees at the building. Engel
said that there was no ‘‘signed agreement’’ to that effect, so
there was nothing to stop Respondent from employing
Delgado and De LaRosa, and the question had never come
up.
Engel testified that he negotiated the original 1984 con-
tract with Samuelson; Supreme performed the services as
provided by the contract. During the negotiations leading up
to that contract, there was no discussion of Respondent being
prohibited from employing Supreme’s employees. He testi-
fied further that in preparation for the instant matter, after
being questioned by the General Counsel about Respondent’s
nonhiring defense, he checked his file and found the August
19, 1987 letter from Marino to Van Loan. Prior to that time,
he did not know of the existence of this letter. He never dis-
cussed the contract or the nonhiring clause with Van Loan.
Respondent introduced into evidence a contract that Supreme
sent to Respondent, dated December 6, 1991, covering the
maintenance of a building at 101 West 31st Street, in the city
and State of New York. Andrew Weisbach, sales executive
for Supreme, signed the proposal on behalf of Supreme. This
proposal contains the nonhiring clause that is contained in
Marino’s August 1987 letter to Van Loan. For about the last
15 years Supreme has been providing the maintenance serv-
ices for Respondent at the 31st Street building.
Engel testified that Supreme performs services for about
300 customers, some big and some small. In addition, some
of the customers have more than one location that is main-
tained by Supreme. He testified that the nonhiring clause that
is contained in Marino’s August 1987 letter was meant for
certain small jobs that Supreme obtained, such as cleaning a
loft, requiring less than a day’s work. With the startup cost
of equipment and personnel that Supreme had, he was con-
cerned that a customer of that size might find it cheaper and
easier to employ Supreme’s employee directly. He did not
have the same concern with his larger customers (such as
Respondent) because, under his contract with the Union, the
employees go to the customer or the new contractor. He
never requested that Delgado and DeLaRosa remain in his
employ after Respondent canceled the agreement. The parties
stipulated that Delgado and DeLaRosa were good employees
with no disciplinary records. When the contract expired, Su-
preme removed its equipment and supplies from the building.
De LaRosa testified that in about early May, while he was
with Delgado, he asked Van Loan whether he and Delgado
were going to lose their jobs; he said that he didn’t know.
Van Loan did not ask him to submit an application for em-
ployment after May 31, nor did he submit such an applica-
tion. Delgado testified that shortly before their employment
at the building ended, he and De LaRosa asked Van Loan
what was going to happen to them. He told them to go to
the Union; with their seniority they could continue working
for Supreme. He never filed an application to work directly
for Respondent.
Respondent placed an ad in El Diario on May 10 and 11
for porters for the building, although the building is not
named in the ad. Beginning on June 1, the porter or porters
performing the maintenance work were being supervised by
Respondent’s agents and they have not been represented by
the Union.
Samuelson has ownership interests in about 15 buildings
in the city of New York; in some of these buildings the
Union represents the employees through an associationwide
contract. The 31st Street building is the only one with a
maintenance contract. After some discussions that Samuelson
had with Engel in about July, Delgado began working for
Supreme at the 31st Street building.
IV. ANALYSIS
The law is clear that the purchaser of an existing em-
ployer, and a potential successor employer to that employer,
is not legally obligated to employer a majority, or even any,
of the predecessor’s employees. It however is equally clear
that the potential successor employer cannot refuse to hire
the predecessor’s employees to avoid the successorship obli-
gation or simply because the applicants are union members.
NLRB v. Burns Security Services, 406 U.S. 272 (1972); How-
ard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S.
249 (1974). At times it is easy to determine an employer’s
motivation in the selection of employees; at other times it is
more difficult, as in the instant situation.
Respondent discontinued Supreme’s services at the build-
ing because the building was losing money. This is not al-
leged as a violation. Rather, it is alleged that by not hiring
Delgado and De LaRosa to perform the work beginning on
about June 1, Respondent violated Section 8(a)(1) and (3) of
the Act. The General Counsel’s theory is that Delgado and
De LaRosa were available and Respondent purposely by-
passed them to avoid having to deal with the Union. I should
initially state that I find absolutely no merit to Respondent’s
defense that Delgado and DeLaRosa were employed by Su-
preme and not Respondent. In every potential successorship
case the alleged predecessor and successor are separate em-
ploying entities, like Supreme and Respondent. Rather, the
ultimate issue here is why Respondent refused to hire
Delgado and De LaRosa to perform the maintenance work at
the building beginning about June 1.
I found Samuelson to be a credible, albeit a ‘‘testy’’ wit-
ness, and would credit his testimony. Although Engel was
also a credible witness, especially considering that he was
testifying against the interest of one of his customers, I
would credit Samuelson’s version of the conversation that
they had in February, not because Samuelson was a more
credible witness, but because it was a very narrow point (just
the difference of a few words) and Samuelson’s version is
more reasonable. I therefore find that in this conversation, he
told Engel that he didn’t know if the Union would end up
in the building after the expiration of Supreme’s contract.
The evidence clearly establishes that the building was los-
ing money. Respondent had to look to a way to save money,
and Supreme’s contract at the building was an obvious
choice. In addition to the direct wages and benefits that Re-
spondent reimburses Supreme for, Supreme also charges 3
percent for supervision and 20 percent for administrative
841SIERRA REALTY CORP.
2 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
overhead and profit. In addition to this savings of 23 percent,
Samuelson testified that he could save additional money be-
cause: ‘‘if we hired our own people we would have less
hours at lower fringe benefits and wages.’’ Samuelson was
clearly experienced in the field and knew that if he hired
Delgado and De LaRosa he would have to recognize the
Union at the building and would probably end up paying
them the same wage as Supreme paid them. As they were
good employees and knew the building, the only reason for
not hiring them was to avoid recognizing the Union and pay-
ing the Union scale. This is where the division between law-
ful and unlawful becomes difficult to differentiate. Whereas
it is unlawful to refuse to hire employees in order to avoid
a successorship obligation and the resulting obligation to rec-
ognize and bargain with the Union, is it also a violation of
the Act to refuse to hire employees to avoid paying the high-
er wages under a union contract that the predecessor em-
ployer paid? In this situation, I find that it is not.
The cases in this area require that in order to be a viola-
tion, there must be substantial evidence of union animus.
Lemay Caring Centers, 280 NLRB 60, (1986); State Distrib-
uting Co., 282 NLRB 1048 (1987); and U.S. Marine Corp.,
293 NLRB 669, 670 (1989). In the instant case, I find that
although Van Loan failed to respond to Bevona’s calls in
April and May, Respondent harbored no union animus. Some
of Samuelson’s other buildings are signatories to contracts
with the Union and Supreme continues to perform the main-
tenance work at Respondent’s 31st Street building, with
Delgado, beginning in about July. In addition, when Delgado
and De LaRosa asked Van Loan about their situation, al-
though he was not honest with them about Respondent’s in-
tention to hire others, he recommended they assert their se-
niority through the Union. All this convinces me that Re-
spondent failed and refused to hire them in order to avoid
the union wage scale. In the instant situation, I find that is
different from refusing to hire employees in order to avoid
the union.
A similar situation occurred in Vantage Petroleum Corp.,
247 NLRB 1492, 1493 (1980), where the employer was
awarded a license by the State of New York to operate serv-
ice stations on state parkways. Some of these stations had
been unionized. The employer had earlier decided that it
would employ its wage scale at these stations, beginning
with the minimum wage, and would hire its own employees
rather than the predecessors employees. The employer in-
formed union employees of the predecessor employer that its
major consideration in selecting employees was economic,
and that it could not afford, and would not pay, the wage
rates previously paid at the stations. The administrative law
judge and the Board found no violation in the failure to hire
any of the predecessor’s unionized employees. The Board
found that Respondent’s main concern was to hire employees
willing to work for the minimum wage and that the prede-
cessor’s employees were earning considerably more than
that. The Board stated:
Respondent had reason to assume that those employees
in all likelihood would not want to suffer a reduction
in that [previous pay] rate. . . . In these circumstances,
therefore, we are unwilling to ascribe a discriminatory
motive to Respondent’s taking no action to offer the
Exxon employees employment . . . .
I would make a similar finding here and differentiate be-
tween a good-faith refusal to offer employment to a prede-
cessor’s employees because the rate of pay being offered was
substantially below what they had been earning, and refusing
to offer employment to a predecessor’s employees in order
to avoid a successorship obligation and union representation.
I therefore recommend that this 8(a)(1) and (3) allegation be
dismissed.
Having found that Respondent did not unlawfully refuse to
hire Delgado and De LaRosa, Respondent was not a succes-
sor to Supreme in its operation at the building. That being
so, obviously, Respondent was not obligated to bargain with
the Union over the terms and conditions of employment of
the employees at the building, including the hours, wages,
and other terms and conditions of employment of the em-
ployees. Therefore, Respondent has not violated Section
8(a)(1) and (5) of the Act as further alleged in the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent did not violate Section 8(a)(1), (3), and (5)
of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
It having been found and concluded that Respondent has
not engaged in the unfair labor practices alleged in the com-
plaint, the complaint is dismissed in its entirety.