County Agency Inc. and Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a The Esplana

National Labor Relations Board - Board Decisions

Apr 29, 2020

369 N.L.R.B. 62 (N.L.R.B. 2020)

369 NLRB No. 62
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
County Agency Inc. and Esplanade Partners Ltd. d/b/a
Esplanade Venture Partnership d/b/a The Espla-
nade Hotel and 305 West End Holding, LLC d/b/a
305 West End Avenue Operating, LLC and Ulti-
mate Care Management Assisted Living Manage-
ment, LLC, A Division of The Engel Burman
Group, d/b/a Ultimate Care Management, LLC,
and United Food & Commercial Workers Union,
Local 2013. Cases 02–CA–188405, 02–CA–
189863, and 02–CA–195031
April 29, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On February 7, 2019, Administrative Law Judge Benja-
min W. Green issued the attached decision. Respondents
305 West End Holding, LLC d/b/a 305 West End Avenue
Operating, LLC (305 West End) and Ultimate Care Man-
agement Assisted Living Management, LLC, a division of
the Engel Burman Group, d/b/a Ultimate Care Manage-
ment, LLC (Ultimate) filed exceptions and a supporting
brief, and the General Counsel and the Charging Party
filed answering briefs. The General Counsel filed
1 No party excepts to the judge’s conclusion that Respondents County
Agency and Esplanade (the predecessor Respondents), as joint employ-
ers, violated Sec. 8(a)(5) and (1) of the Act by failing and refusing to
provide the Union with information it requested on October 27, 2016.
2 Respondents 305 West End and Ultimate (the successor Respond-
ents) have implicitly excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We specifically affirm the judge’s determination to credit the testi-
mony of Ultimate Executive Director Faraz Kayani that the successor
Respondents intended to retain as many employees of the predecessor
Respondents as possible—including those covered by the New York
Displaced Building Service Workers Protection Act (DBSWPA), N.Y.C.
Admin. Code § 22-505—because those employees would require less
training, and it would be costly and time consuming to replace them.
Kayani’s testimony in this regard was clear and apparently spontaneous.
Moreover, because it tended to support a finding that the successor Re-
spondents had breached a duty to recognize and bargain with the prede-
cessor employees’ collective-bargaining representative, Kayani’s testi-
mony was contrary to his employer’s interest and, therefore, adverse to
his own pecuniary interest. The Board has long considered such testi-
mony to be particularly reliable. See, e.g., Flexsteel Industries, 316
NLRB 745, 745 (1995) (citing cases), affd. mem. 83 F.3d 419 (5th Cir.
1996). Furthermore, Kayani’s testimony was corroborated by Ultimate
Regional Food Service Director Paul Senken, who credibly testified that
exceptions and a supporting brief, and the Charging Party
and Respondents 305 West End and Ultimate filed an-
swering briefs.
The National Labor Relations Board has considered the
decision and the record in light of the exceptions1 and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions and to adopt the recommended Or-
der as modified and set forth in full below.3
1. We agree with the judge’s conclusion that the New
York Displaced Building Service Workers Protection Act
(DBSWPA) did not relevantly affect the composition of
the successor Respondents’ work force on December 5,
2016, the date the successor Respondents began operating
the Esplanade Hotel with a substantial and representative
complement. As noted above, the credited record evi-
dence establishes that the successor Respondents volun-
tarily chose to hire predecessor employees, including
those covered by the DBSWPA, as a majority of their ini-
tial complement. Moreover, because the DBSWPA co-
vers only building service employees,4 and many of the
predecessor employees hired by the successor Respond-
ents were not building service employees (and therefore
their hiring by the Respondent was indisputably volun-
tary), predecessor employees not covered by the
DBSWPA would have constituted a majority of the suc-
cessor Respondents’ initial complement all by them-
selves.5 For both of these independent reasons, we find
the successor Respondents instructed hiring officers to hire as many pre-
decessor employees as possible in order to take advantage of their famil-
iarity with the Esplanade Hotel facility, the residents, and the operation.
Finally, Ultimate Vice President Brian White credibly testified that the
successor Respondents hired certain janitorial and maintenance employ-
ees, who were covered by the DBSWPA, because they fit the successor
Respondents’ needs, further corroborating Kayani’s version of events
and supporting the judge’s finding, which we adopt, that the successor
Respondents voluntarily chose to hire employees of the predecessor Re-
spondents as a majority of their initial complement.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language and substitute new notices to con-
form to the Order as modified. Because the predecessor Respondents are
no longer operating the facility involved in this proceeding, we shall or-
der them to mail a copy of the attached notice marked “Appendix A” to
the Union and to the last known addresses of their former unit employees
at that facility in order to inform them of the outcome of this proceeding.
The successor Respondents did not except to the judge’s recom-
mended affirmative bargaining order, so we find it unnecessary to pro-
vide a justification for that remedy. See Arbah Hotel Corp. d/b/a Mead-
owlands View Hotel, 368 NLRB No. 119, slip op. at 1 fn. 2 (2019), and
cases cited therein.
4 The definition of “building service employee” in the DBSWPA is
lengthy and detailed, but in substance, a building service employee is a
nonsupervisory employee, earning $35 an hour or less, engaged in the
care or maintenance of an existing building. See N.Y.C. Admin. Code §
22-505(a).
5 On December 5, 2016, the successor Respondents hired 40 employ-
ees, 36 of whom had previously been employed by the predecessor
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that the record before us does not present the question of
whether, as the General Counsel argues, a departure from
the successorship principles set forth in Burns and Fall
River Dyeing would be warranted where a worker reten-
tion law does interfere with an employer’s ability to make
a voluntary and conscious decision as to the composition
of its work force.6 Because the successor Respondents
“made a conscious decision to maintain generally the
same business and to hire a majority of [their] employees
from [their predecessors]”—indeed, intended to take ad-
vantage of their predecessors’ trained work force—we af-
firm the judge’s conclusion that the successor Respond-
ents must bargain with the Charging Party Union as the
representative of the predecessor Respondents’ employ-
ees. Fall River Dyeing, 42 U.S. at 40–41.7
2. The judge’s recommended Order requires the suc-
cessor Respondents to make predecessor employee Trini-
dad Hardy whole for their unlawful refusal to hire her be-
cause of her protected union activity. The successor Re-
spondents contend on exception that a release agreement
Hardy signed with the predecessor Respondents prevents
the Board from ordering its standard make-whole reme-
dies. The release provides, in relevant part:
Respondents. Four new employees were hired between December 5 and
December 8: Jose Cabrera, Elsie DelVillar, Taylor Vardi, and Deandra
Williams. However, where, as here, an employer commences normal
operations with a substantial and representative complement of employ-
ees, “‘the relevant measuring day to determine if the [c]ompany em-
ployed a majority of union members is the initial date it began operat-
ing.’” Ford Motor Co., 367 NLRB No. 8, slip op. at 13 (2018) (quoting
Vermont Foundry, 292 NLRB 1003, 1009 (1989)); see also Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27, 46–47 (1987); NLRB
v. Burns Security Services, 406 U.S. 272, 278–281 (1972). Here, the
relevant date is December 5, 2016. We reject the successor Respondents’
suggestion that the record does not support the judge’s calculations re-
garding the composition of the successor Respondents’ initial comple-
ment. The judge relied on a roster of 305 West End employees that was
produced by the successor Respondents pursuant to the General Coun-
sel’s subpoena, authenticated by Ultimate Regional Director Kayani, and
introduced into evidence without objection. The judge also relied upon
305 West End payroll records that were introduced by both the General
Counsel and by the Respondents and were identical in relevant part.
Taken together, these records establish, as the judge found, that 305 West
End hired 40 employees in unit classifications on December 5, and four
additional employees by December 8. Esplanade payroll records for
2016 and layoff notices provided to Esplanade employees prior to the
transfer of ownership corroborate each other as to the final composition
of the predecessor work force and clearly establish that 36 of the 40 em-
ployees hired by 305 West End on December 5 previously worked for
County Agency/Esplanade. The successor Respondents claim, vari-
ously, that they would not have hired 7, 11, or 15 predecessor employees
absent the DBSWPA. In other words, the successor Respondents claim
that without the DBSWPA, they could have hired as many as 15 new
building service employees. Again, the evidence shows that the succes-
sor Respondents freely chose to hire predecessor employees, including
predecessor building service employees. But even if the successor Re-
spondents had hired 15 new building service employees instead of an
Nothing in this Release shall be construed so as to pro-
hibit me from filing a charge with, or participating in any
investigation or proceeding conducted by a local, state,
or federal agency . . . . This Release shall, however, pro-
hibit me from recovering any individual relief, compen-
sation, or damages in any such charge, complaint, or
claim filed by anyone.
(Emphasis added.) We reject the successor Respondents’
contention for two independent reasons.
First, the Board is not bound by private agreements like
the one Hardy signed. As we recently explained, an agree-
ment that purports to prohibit an employee from obtaining
Board-ordered remedies implies “a reciprocal limitation
on the Board’s exercise of its power to award those reme-
dies,” Kelly Services Inc., 368 NLRB No. 130, slip op. at
4 (2019), and such a limitation must be denied effect.
Board-ordered remedies serve a public purpose, as the
courts have recognized,8 and the Board does not give ef-
fect to private agreements that purport to limit the exercise
of its remedial powers in the public interest. Kelly Ser-
vices, above. Moreover, “the Board’s remedial powers are
an aspect of its broader power to prevent unfair labor prac-
tices, and Congress has provided that this broader power
equal number of predecessor employees on December 5, predecessor
employees would still have constituted a 21-employee majority of the
initial complement of 40 employees. In other words, on the appropriate
date to assess whether the Union possessed majority status, the record
shows that the successor Respondents would have hired predecessor em-
ployees as a majority of their work force—even if they had not been con-
strained by the DBSWPA and had opted to replace every single
DBSWPA-covered predecessor employee with a new employee. Thus,
while we agree with the judge that the record establishes the Respondents
voluntarily opted to hire DBSWPA-covered employees, even if we ac-
cepted their contentions that they would not have, this would not alter
the finding that the Union possessed majority status on December 5.
6 We would consider addressing this question in a future appropriate
case.
7 In so affirming, we neither rely upon nor endorse that portion of the
judge’s analysis relating to GVS Properties, LLC, 362 NLRB 1771
(2015), order vacated April 20, 2017, a decision in which we did not
participate, the continued precedential viability of which is rendered
doubtful by the Board’s 2017 vacatur Order.
8 See Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 197 (1941) (“Mak-
ing . . . workers whole for losses suffered on account of an unfair labor
practice is part of the vindication of the public policy which the Board
enforces.”); NLRB v. Mastro Plastics Corp., 354 F.2d 170, 175 (2d Cir.
1965) (“The back pay remedy has the twofold purpose of reimbursing
employees for actual losses suffered as a result of a discriminatory dis-
charge and of furthering the public interest in deterring such dis-
charges.”); see also Oil, Chemical and Atomic Workers International
Union v. NLRB, 806 F.2d 269, 272 (D.C. Cir. 1986) (“[T]the Board, hav-
ing filed an unfair labor practice complaint, proceeds in vindication of
the public interest, not in vindication of private rights.”); Robinson
Freight Lines, 117 NLRB 1483, 1485 (1957) (“It is well established that
the Board’s power to prevent unfair labor practices is exclusive, and . . .
its function is to be performed in the public interest and not in vindication
of private rights.”) (citing cases), enfd. 251 F.2d 639 (6th Cir. 1958).
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 3
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
‘shall not be affected by any other means of adjustment or
prevention that has been or may be established by agree-
ment, law, or otherwise.’” Id., slip op. at 5 (quoting Sec-
tion 10(a) of the Act) (emphasis in Kelly Services). Be-
cause the clear language of the Act and well-settled prec-
edent preclude private limitation of the Board’s authority
to remedy violations of the Act in the public interest, we
find that Hardy’s release is ineffective to bar our remedial
order.
Second, we find that Hardy’s release agreement with the
predecessor Respondents cannot, in any case, reasonably
be read to encompass the successor Respondents’ liability
for their own independent violation of the Act. The agree-
ment provides that Hardy releases “County Agency, Inc.
and Esplanade Venture Partnership and their respective
affiliates, successors and assigns” from claims arising
from, inter alia, “the relationship of the parties, the termi-
nation of my employment or any action or omissions of
Esplanade Venture Partnership or County Agency, Inc.”
The clear intent of the agreement is to release the prede-
cessor Respondents from claims arising from and relating
to Hardy’s employment by them. The agreement by its
terms also releases, among others, the predecessor Re-
spondents’ “successors,” but this clearly aims to shield po-
tential successors from liability under Golden State Bot-
tling Co. v. NLRB, 414 U.S. 168 (1973), for unfair labor
practices committed by the predecessor Respondents.9
We see no basis, either in the language of the agreement
or in law, for construing the release to shield the successor
Respondents from liability for their own unlawful con-
duct. Accordingly, for this independent reason also, we
find that the release does not affect the remedial obligation
of the successor Respondents to make Hardy whole for
their unlawful refusal to hire her.10
ORDER
The National Labor Relations Board orders that
A. Respondents County Agency Inc. and Esplanade
Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a
The Esplanade Hotel, New York, New York, joint em-
ployers, their officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to bargain collectively with United Food
& Commercial Workers Union, Local 2013 by failing and
refusing to furnish it with requested information that is
9 In Golden State Bottling, the Supreme Court upheld the Board’s
ruling that a purchaser who acquires a business with knowledge of the
seller’s unremedied unfair labor practices may be held jointly and sever-
ally liable to remedy those violations.
10 Member Emanuel agrees that a make-whole remedy is appropriate
for Hardy, but based only on the second reason set forth in this deci-
sion—that the release agreement cannot reasonably be read to encompass
relevant and necessary to the Union’s performance of its
functions as the collective-bargaining representative of the
Respondents’ unit employees.
(b) 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) Furnish to the Union in a timely manner the infor-
mation requested by the Union on October 27, 2016.
(b) Within 14 days after service by the Region, dupli-
cate and mail, at their own expense and after being signed
by the Respondents’ authorized representative, copies of
the attached notice marked “Appendix A”11 to the Union
and to all unit employees who were employed by the Re-
spondents at any time since October 27, 2016.
(c) Within 21 days after service by the Region, file with
the Regional Director for Region 2 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that each Respondent has taken to
comply.
B. Respondents 305 West End Holding, LLC d/b/a 305
West End Avenue Operating, LLC and Ultimate Care
Management Assisted Living Management, LLC, a divi-
sion of the Engel Burman Group, d/b/a Ultimate Care
Management, LLC, New York, New York, joint employ-
ers, their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
United Food & Commercial Workers Union, Local 2013
as the exclusive collective-bargaining representative of
the employees in the bargaining unit.
(b) Refusing to hire employees because of their pro-
tected union activity.
(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) On request, bargain with the Union as the exclusive
collective-bargaining representative of the employees in
the following appropriate unit concerning terms and con-
ditions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:
the successors’ own conduct. He would not pass on whether the release
should be denied effect because it limits the Board’s remedial authority.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Mailed by Order of the National
Labor Relations Board” shall read “Mailed Pursuant to a Judgment of the
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
All full-time and part-time employees, excluding execu-
tives, supervisors and guards as defined in the Labor
Management Relations Act as amended. Full-time em-
ployees are employees employed on a steady basis.
Part-time employees are call in employees and work as
needed.
(b) Within 14 days from the date of this Order, offer
Trinidad Hardy instatement to the job she held as an em-
ployee of Respondents County Agency/Esplanade or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(c) Make Trinidad Hardy whole for any loss of earnings
and other benefits suffered as a result of the unlawful re-
fusal to hire her, in the manner set forth in the remedy sec-
tion of the decision.
(d) Compensate Trinidad Hardy for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is fixed,
either by agreement or Board order, a report allocating the
backpay award to the appropriate calendar year(s).
(e) Within 14 days from the date of this Order, remove
from their files any reference to the unlawful failure to hire
Trinidad Hardy, and within 3 days thereafter, notify Hardy
in writing that this has been done and that the failure to
hire her will not be used against her in any way.
(f) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records, including an electronic
copy of such records if stored in an electronic form, nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(g) Within 14 days after service by the Region, post at
their New York, New York facility copies of the attached
notice marked “Appendix B.”12 Copies of the notice, on
forms provided by the Regional Director for Region 2, af-
ter being signed by the Respondents’ authorized repre-
sentative, shall be posted by the Respondents and main-
tained for 60 consecutive days in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. In addition to physical posting of paper no-
tices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondents customarily
12 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
communicate with their employees by such means. Rea-
sonable steps shall be taken by the Respondents to ensure
that the notices are not altered, defaced, or covered by any
other material. If the Respondents have gone out of busi-
ness or closed the facility involved in these proceedings,
the Respondents shall duplicate and mail, at their own ex-
pense, a copy of the notice to all current employees and
former employees employed by the Respondents at any
time since December 5, 2016.
(h) Within 21 days after service by the Region, file with
the Regional Director for Region 2 a sworn certification
by a responsible official on a form provided by the Region
attesting to the steps that each Respondent has taken to
comply.
Dated, Washington, D.C. April 29, 2020
______________________________________
John F. Ring, Chairman
_____________________________________
Marvin E. Kaplan, Member
_____________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 5
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
WE WILL NOT refuse to bargain collectively with United
Food & Commercial Workers Union, Local 2013 by fail-
ing and refusing to furnish it with requested information
that is relevant and necessary to the Union’s performance
of its function as your collective-bargaining representa-
tive.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL furnish to the Union in a timely manner the
information requested by the Union on October 27, 2016.
COUNTY AGENCY INC. AND ESPLANADE
PARTNERS LTD. D/B/A ESPLANADE VENTURE
PARTNERSHIP D/B/A THE ESPLANADE HOTEL,
JOINT EMPLOYERS
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-188405 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your
behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected ac-
tivities.
WE WILL NOT fail and refuse to recognize and bargain
with United Food & Commercial Workers Union, Local
2013 as the exclusive collective-bargaining representative
of our employees in the bargaining unit.
WE WILL NOT refuse to hire you because of your pro-
tected union activity.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, on request, bargain with the Union as the ex-
clusive collective-bargaining representative of our em-
ployees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agreement:
All full-time and part-time employees, excluding execu-
tives, supervisors and guards as defined in the Labor
Management Relations Act as amended. Full-time em-
ployees are employees employed on a steady basis.
Part-time employees are call in employees and work as
needed.
WE WILL, within 14 days from the date of the Board’s
Order, offer Trinidad Hardy instatement to the job she
held as an employee of County Agency/Esplanade or, if
that job no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
WE WILL make Trinidad Hardy whole for any loss of
earnings and other benefits resulting from our unlawful re-
fusal to hire her, less any net interim earnings, plus inter-
est, and WE WILL also make her whole for reasonable
search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Trinidad Hardy for the adverse
tax consequences, if any, of receiving a lump-sum back-
pay award, and WE WILL file with the Regional Director
for Region 2, within 21 days of the date the amount of
backpay is fixed, either by agreement or Board order, a
report allocating the backpay award to the appropriate cal-
endar year(s).
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlawful
refusal to hire Trinidad Hardy, and WE WILL, within 3 days
thereafter, notify her in writing that this has been done and
that the unlawful refusal to hire her will not be used
against her in any way.
305 WEST END HOLDING, LLC D/B/A 305 WEST
END AVENUE OPERATING, LLC AND ULTIMATE
CARE MANAGEMENT ASSISTED LIVING
MANAGEMENT, LLC, A DIVISION OF THE ENGEL
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
BURMAN GROUP, D/B/A ULTIMATE CARE
MANAGEMENT, LLC, JOINT EMPLOYERS
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-188405 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Zachary E. Herlands, Esq. and Jacob Frisch, Esq., for the Gen-
eral Counsel.
Paul Wagner, Esq., Arch Stokes, Esq., and Anne-Marie Mizel,
Esq. (Stokes Wagner), for the Respondents.
Robert F. O’Brien, Esq. and W. Daniel Freehan, Esq, (O’Brien,
Belland & Bushinsky), for the Charging Party.
DECISION
BENJAMIN W. GREEN, Administrative Law Judge. This case
was tried before me in New York, New York, on March 19, 20,
April 4, 18, 19, May 30, and 31, 2018. The General Counsel
contends that Respondents County Agency, Inc. (County) and
Esplanade Partners Ltd. d/b/a Esplanade Venture Partnership
d/b/a The Esplanade Hotel (Esplanade), as joint employers,1 vi-
olated Section 8(a)(5) and (1) of the Act by failing to furnish re-
quested information regarding the sale of their facility2 to the
United Food & Commercial Workers Union, Local 2013 (Un-
ion). The General Counsel also contends that Respondent 305
West End Holding, LLC d/b/a 305 West End Avenue Operating,
LLC (West End) and Respondent Ultimate Care Management
Assisted Living Management, LLC, a Division of the Engel Bur-
man Group d/b/a Ultimate Care Management, LLC (Ultimate),
1 References herein to “Respondents Esplanade” include Respondent
County, while references to “Respondent Esplanade” do not.
2 The facility at issue is the Esplanade Hotel, a residential building
located at 305 West End Avenue, New York, New York 10023.
3 References herein to “Respondents West End” include Respondent
Ultimate, while references to “Respondent West End” do not.
4 The complaint originally plead a refusal-to-hire 16 employees, but
the General Counsel has withdrawn, with my approval, the allegation
pertaining to Harpal Sudeshkumar.
5 Toward the end of the trial, the General Counsel moved to include
Respondent Ultimate as a joint employer of Respondent West End. I
granted this motion and an amendment to the complaint was entered into
evidence. Respondent Ultimate did not file an answer to the amended
complaint, but Respondent West End did and denied it was a joint em-
ployer with Respondent Ultimate.
6 References herein to Scharf refer to Alexander, not Solomon.
as joint employers3 and the successor of Respondents Esplanade,
violated Section 8(a)(5) and (1) of the Act by refusing to recog-
nize and bargain with the incumbent Union as the representative
of the predecessor’s unit employees. Finally, the General Coun-
sel contends that Respondents West End violated Section 8(a)(3)
and (1) of the Act by discriminatorily refusing to hire 15 of the
predecessor’s employees.4
The Respondents, except Respondent Ultimate, filed answers
to the complaint denying the substantive allegations.5 Respond-
ent Esplanade admits in its answer that it owned and operated an
assisted living facility located at 305 West End Avenue, New
York, New York. In its posthearing brief, Respondent West End
states that the “property was owned by the Scharf family, and
was operated for a long time by Solomon Scharf, and thereafter
by his son Alexander, known as ‘Ali.”6 (R. Br. p. 5) Respondent
County Agency admits in its answer that it is in the business of
providing professional employer organizational services, includ-
ing the provision of personnel, payroll, and other human re-
sources functions to customers. In its posthearing brief, Re-
spondent West End states that Respondent County was “a com-
pany under contract with (Respondent) Esplanade to supply
workers.” (R. Br. p. 5)
As discussed below, I find that Respondents Esplanade, as
joint employers, violated the Act by failing to provide the Union
with requested information. I also find that Respondents West
End, as joint employers and successors of Respondents Espla-
nade, unlawfully refused to bargain with the Union as the repre-
sentative of the predecessor’s unit employees. Lastly, among the
merit allegations, I find that Respondents West End unlawfully
refused to hire Union shop steward Trinidad Hardy because of
her union position and/or activity. However, I do not find, and
herein dismiss, the allegation that Respondents West End vio-
lated the Act by refusing to hire 14 other employees in a failed
attempt to avoid successorship.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the posthearing
briefs filed by the General Counsel, the Union, and Respondent
West End,7 I make these
FINDINGS OF FACT8
I. LABOR ORGANIZATION STATUS AND JURISDICTION
In their answers to the complaint, Respondents Esplanade and
7 Until March 23, 2018 (day 3 of the trial), the law firm of Stokes
Wagner represented Respondent Esplanade and Respondent West End.
Respondent County did not appear at the trial. On March 23, 2018,
Stokes Wagner indicated that it might not be able to continue represent-
ing Respondent Esplanade because of a potential conflict caused by a
pending criminal indictment of Scharf. The next day, Stokes Wagner
withdrew as Respondent Esplanade’s counsel and continued only as
counsel for Respondent West End. Respondent Esplanade did not appear
during the remainder of the trial through independent counsel or other-
wise. Respondent West End was the only respondent that filed a post-
hearing brief.
8 My factual findings are based upon a review and consideration of
the entire record of this case. Testimony contrary to my findings has
been discredited. Credibility findings need not be all-or-nothing propo-
sitions and, indeed, it is common in judicial proceedings to believe some,
but not all, of a witness’s testimony. Daikichi Sushi, 335 NLRB 622
-
-
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 7
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
Respondent West End denied sufficient knowledge to admit or
deny the status of the Union as a labor organization within the
meaning of Section 2(5) of the Act. The Union negotiated and
was party to a collective-bargaining agreement covering a unit
of employees employed at the Esplanade Hotel until that facility
was sold on December 5, 2016.9 The Union filed at least one
grievance under the contract (which settled) and requested the
information at issue in this case. The Union also contacted Re-
spondent West End in an attempt to have that company assume
the collective-bargaining agreement or at least bargain with the
Union as the representative of the unit. Accordingly, I find that
the Union is a labor organization within the meaning of Section
2(5) of the Act. See Image Systems, 285 NLRB 370, 374 (1987).
None of the Respondents deny commerce information or em-
ployer status as plead in the complaint as a basis for jurisdiction.
At all material times, the Respondents have been employers en-
gaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
Based on the foregoing, I find that this dispute affects com-
merce and that the Board has jurisdiction pursuant to Section
10(a) of the Act.
II. A LLEGED UNFAIR LABOR PRACTICES10
The Operation of the Esplanade Hotel Prior to the Sale
on December 5
Respondent Esplanade owned and operated the Esplanade Ho-
tel as a senior independent living residence which provided cer-
tain nonmedical services. Those services included three meals a
day (in the dining room or delivered to the resident’s apartment);
front desk concierge services such as greeting people entering
the building, announcing visitors,
handling mail, answering phones, and fielding complaints;
housekeeping with towel, linen, and paper replacement; activi-
ties and entertainment (e.g., singers, poetry, bingo, exercise clas-
ses); and a beauty parlor.
Respondent Esplanade was owned by the Scharf family.
Marcy Levitt was the executive director and Eli Singer was the
controller. Additional managers and supervisors included recre-
ation director Leslie Brown, housekeeping director Alexander
Francisca, maintenance engineering director Dzevat Bicic, cus-
tomer service director Albert Etienne, and marketing director
Ruth O’Connell.
The Union represented a unit of employees who were em-
ployed at the Esplanade Hotel and the most recent collective-
bargaining agreement was effective February 1, 2015, to January
(2001). A credibility determination may rely on a variety of factors, in-
cluding the context of the testimony, the witness’s demeanor, the weight
of the respective evidence, established or admitted facts, inherent proba-
bilities, and reasonable inferences that may be drawn from the record as
a whole. Double D Construction Group, 339 NLRB 303, 305 (2003);
Daikichi Sushi, 335 NLRB 622, 623 (2001) (citing Shen Automotive
Dealership Group, 321 NLRB 586, 589 (1996)), enfd. 56 Fed. Appx.
516 (D.C. Cir. 2003).
9 All dates refer to 2016, unless stated otherwise.
10 The General Counsel, in its brief, refers to the failure of Respondent
West End to produce certain subpoenaed documents and failure to pro-
duce other subpoenaed documents in a timely manner at the start of the
hearing. However, the General Counsel has not asked for inferences or
31, 2018. The Union entered into this contract with “County
Agency Inc., located at 129 South Eighth Street, Brooklyn, NY
11211, for the employees employed at The Esplanade Hotel lo-
cated at 305 West End Avenue, New York, New York 10023,
hereinafter referred to as the ‘Employer’.” (R. Exh. 1) Levitt
testified that “we all worked for (Respondent) County.” (Tr. 202)
The contract was signed by Scharf as “partner” under a line iden-
tifying him as a representative of “County Agency Esplanade.”
The recognition provision of the contract describes the unit as
follows (R. Exh. 1):
[A]ll of its full-time and part-time employees, with respect to
wages, hours and conditions of employment, excluding execu-
tives, supervisors and guards as defined in the Labor Manage-
ment Relations Act as amended, and agrees to deal collectively
only with this Union for and on behalf of such employees. Full-
time employees are employees employed on a steady basis.
Part-time employees who are call in employees and work as
needed.
Although the contract describes a wall-to-wall unit, Union di-
rector of collective-bargaining Eugene Hickey testified that he
did not know recreation employees were employed at the facility
and, therefore, never considered them to be included in the bar-
gaining unit.11
The collective-bargaining agreement was a comprehensive
contract. The contract included a union security clause requiring
Union membership in good standing as a condition of employ-
ment. The contract also included provisions that dictated the
terms and conditions of employment of unit employees, includ-
ing wages, leave, health benefits, layoffs, discharges, suspen-
sions, and subcontracting. Further, the contract included the fol-
lowing provision in Article 31 regarding successors and assigns
(R. Exh. 1.):
Section 1. This agreement shall be binding upon the parties
hereto, their successors, administrators, executors, and assigns
and shall survive a change of name, of location or place of busi-
ness or re- organization. In the event the entire operation or any
part thereof is sold, leased, transferred or taken over by the sale,
transfer, lease, assignment, receivership or bankruptcy pro-
ceedings, such operation shall continue to be subject to the
terms and conditions of this agreement for the life thereof. It is
understood by this Section that the parties hereto shall not use
any leasing device to a third party to evade this agreement. The
Employer shall give notice to the existence of this agreement
to any purchaser, transferee, assignee or lessee of the operation
the suppression of evidence that, in my opinion, would be dispositive of
any of my findings herein. More concerning to me is Respondent West
End’s apparent failure to provide the General Counsel with a privilege
log after representing at trial that it would. However, the General Coun-
sel never submitted a motion regarding this issue and has not asked for a
specific remedy. Accordingly, I do not address the matter further herein.
11 Throughout the trial, Respondent West End’s counsel took the po-
sition, in agreement with the Union, that recreation employees at the Es-
planade Hotel were not historically included in the unit. In its brief, Re-
spondent West End confirmed that “recreation employees . . . were not
represented by the Union . . . .). R. Br. p. 7. I find the unit, excluding
recreation employees, to be appropriate.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of this agreement or any part thereof. Such notice shall be in
writing with a copy to the Union not later than thirty (30) days
prior to sale.
Section 2. The Employer shall not have the right to assign this
agreement or in any other manner to transfer the rights and ob-
ligations thereof to any other party, unless and until the pur-
chaser, transferee, assignee or lessee shall first have assumed
and accepted, in writing, all the terms and conditions of this
agreement. Employees working under this agreement shall at
all times be entitled, acting through the Union as their repre-
sentative, to hold the Employer directly responsible for the full
performance of all terms and conditions of this agreement.
The contract was negotiated by Scharf and Singer on behalf
of the employer. The union negotiators were Hickey, Hardy (a
front desk concierge employee), and union representative Idania
Baldoquin.
In August 2015, the parties settled a grievance pertaining to
the paid leave of unit employees under articles 4-6 of the collec-
tive-bargaining agreement. An internal email from Singer re-
garding this settlement stated, in part, that the “settlement offered
herein [by the Union] is agreeable to the Esplanade and County
Agency.” (GC Exh. 42.) Singer’s email identified him as the
controller of “Esplanade Senior Residences.”
The contract, in Article 7, provided for all non-probationary
employees to receive wage increases of $0.40 per hour on Feb-
ruary 1, 2015 and February 1, 2016, and a $0.50 per-hour wage
increase on February 1, 2017. Article 3 of the contract provided
for premium pay for overtime and hours worked on holidays.
Respondent County’s 2016 payroll records reflect that unit em-
ployees received pay increases and premium pay consistent with
the contract.
The contract also provided, in Article 11, for employees to re-
ceive health benefits through a union welfare fund. Under Arti-
cle 11, employees paid nothing toward single coverage, but 100
percent (above the cost of single coverage) for a family or plus
one plan.12 Accordingly, as one might expect, prior to the sale,
payroll records for the vast majority of Esplanade Hotel employ-
ees show no deductions for medical benefits.
The General Counsel called employee witnesses who testified
that they understood their employer to be Respondent Esplanade
(not Respondent County) and Respondent County to be the pay-
roll company that issued paychecks. Front desk employee Dawn
Capelli testified that she has been employed at the Esplanade Ho-
tel since 2014 and understood the facility to be owned by the
Scharf family. During Capelli’s employment, she never met an-
yone she understood to be employed by Respondent County.
Server Michelle Bellemy testified that she has been employed at
the Esplanade Hotel for five years and only understood Respond-
ent County to be the payroll company that prepared employee
paychecks. Deannie “Joy” Duncanson13 testified that she was
employed at the facility from 1994 to December 4, 2016 and only
12 Respondent West End called and questioned employees Norman
Campbell, William Londea, and Charlene Grant regarding their health
benefits. Campbell testified that he received health care coverage
through Respondent Esplanade. Londea testified he was offered cover-
age, but declined it because he was covered under a separate plan. Grant
knew Respondent County as the name on the paychecks. Like
Capelli, neither Bellemy nor Duncanson met anyone they under-
stood to be employed by Respondent County.
According to Levitt, certain employees were considered “un-
ion” while other employees in the same classifications were not.
Levitt claimed that Singer kept a list of the employees who were
not represented by the Union. No such list was entered into ev-
idence and Singer did not testify. However, Levitt identified 10
employees she thought were not represented by the Union.
Levitt also testified that she exercised discretion in giving such
nonunion employees annual wage increases, which were incon-
sistent with and, in fact, higher than the contractual wage in-
creases received by unit employees. However, as noted above,
2016 payroll records reflect that all employees received wage in-
creases consistent with the contract.
In support of the proposition that some unit employees were
“nonunion,” Respondent West End notes that certain employees
did not have union dues deducted from their paychecks (as re-
flected in the payroll records).
Duncanson testified that she was one of three “leads” in the
kitchen (along with Mike Whyte and Terrell Brannon). Certain
employees testified that they understood Duncanson to be the
kitchen manager or supervisor. Bannon, in his resume, described
himself as a supervisor. Levitt testified that Duncanson was the
director of food service and Whyte/Bannon were supervisors.
However, when asked whether Whyte reported to Duncanson,
Levitt said they “worked in conjunction with each other.” (Tr.
232.) According to Levitt, Duncanson hired employees, directed
them to do tasks, and worked with her (Levitt) to create menus
for residents’ meals. Levitt testified that Duncanson, like other
department heads, had authority to discipline employees (but
could not recall an instance when she did so). Levitt also testi-
fied that Duncanson’s resume, which was submitted to Respond-
ents West End, was generally accurate in its description of her
duties. Duncanson’s resume described her experience at the Es-
planade Hotel as follows (GC 21):
Esplanade Luxury Senior Residences, New York, NY Jan-
uary 2000-Present Director of Food Services
• Manage a staff of thirty and the general operations of the
kitchen including shift schedules and billing.
• Create a premium service experience for seniors.
• Responsible for the creating and executing four-cycle bal-
anced menus.
• Manage kitchen inventory including the ordering of gro-
ceries, produce, meats, and fish that meet Kosher stand-
ards.
Esplanade Luxury Senior Residences, New York, NY April
1998—December 1999Dining Room/Kitchen Supervisor
• Recorded senior attendance at every meal.
• Created schedules for servers, cooks, and utility.
testified she never applied for health coverage. Thus, the employees did
not effectively testify that they were denied health benefits under the
contract. Further, the employees would not necessarily know whether
their employer made welfare contributions on their behalf.
13 As discussed below, Duncanson’s job title is disputed.
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 9
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
• Ordered inventory including bread, ice cream, milk, and
other beverages.
Esplanade Luxury Senior Residences, New York, NY Oc-
tober 1994-March 1998 Server
• Served seniors by taking food orders while clearing and
resetting dining room when appropriate.
Duncanson claimed that she identified herself on her resume
as the director of food services because “that’s the position I was
hoping to get with the new company.” (Tr. 140.) Duncanson
denied she hired/fired employees or directed employees to do
tasks. However, Campbell, a server/assistant chef, credibly tes-
tified that he was interviewed by Duncanson, merely introduced
to Levitt the same day, and later notified by Duncanson that he
was hired.
Duncanson denied she scheduled employees or ordered inven-
tory. According to Duncanson, Whyte did the scheduling and
Whyte/Brannon did the ordering. Duncanson testified that she
was only a lead to the extent she created menus with Levitt and
“managed kitchen inventory.” Otherwise, Duncanson claimed
she spent her time cooking, waiting tables, and washing dishes.
When owned by the Scharf family, the Esplanade Hotel was
not a licensed assisted living facility regulated by the New York
Department of Health (NY DOH). Medical personnel were not
employed at the facility and medical care was not administered
to the residents.
The Sale of the Facility and the Hiring Process
In about June, Scharf told Hickey the facility was going to be
sold. Hickey notified union counsel. On June 17, Union counsel
emailed Scharf a proposal for a modified collective-bargaining
agreement which identified “Northwind Group” as a successor
employer. The Union proposal provided for the successor to rec-
ognize the Union as the bargaining representative of unit em-
ployees and abide by the terms of the contract. Union represent-
atives later met with Scharf, Ran Eliasaf (identified by Hickey as
the prospective buyer), and their attorney to discuss the proposed
contract modification. The parties subsequently corresponded
regarding the matter, but never signed an agreement for the buyer
to recognize the Union and/or assume the contract. The sale was
ultimately scheduled to close and take effect on December 5.
In about October, Respondent Ultimate designated regional
executive director Faraz Kayani as the manager who would lead
the operational transition during the sale.
In October, flyers were distributed at the facility which noti-
fied employees that they could interview for jobs with the new
owner on October 27. Hardy notified Hickey of the flyers.
On October 26, Hickey visited the Esplanade Hotel. While
there, Hickey held a meeting with about 30–35 unit employees
and advised them to apply for employment with the buyer. A
nonunit recreation employee attended the meeting and asked
Hickey how recreation aides could “get in the Union.” Hickey
told the employee that recreation was not covered by the collec-
tive-bargaining agreement. According to Hickey, he was una-
ware, until October 26, that Respondents Esplanade employed
recreation employees. Hickey did not consider whether the rec-
reation employees might be covered by the wall-to-wall unit de-
scription in the contract.
On October 27, union counsel emailed Scharf a letter request-
ing the following information (GC Exh. 9):
1. The identity of any purchaser or prospective purchaser in-
cluding corporate name and contact information;
2. A copy of any purchase and sale documents including, but
not limited to, Letters of Intent, Sales Agreements, Asset Pur-
chase Agreements or Acquisition Agreements between any
purchaser or prospective purchaser and Esplanade;
3. Any communications between Esplanade and any purchaser
or prospective purchaser relating to the existing Collective Bar-
gaining Agreement with Local 2013;
4. Any other documents which refer or relate to the sale of Es-
planade’s business assets or plans to convey such assets to 305
LLC or any other entity; and
5. Any communications or documents referring or relating to
Esplanade’s compliance with Article 31 the Parties’ Collective
Bargaining Agreement.
Union counsel explained in this letter that the Union was
aware of the pending sale of Respondent Esplanade to Respond-
ent West End and needed the information to monitor compliance
with the collective-bargaining agreement, particularly Article 31
regarding successors and assigns.
On October 27, Union counsel also sent a letter to prospective
buyers Eliasaf and Jan Burman, which stated as follows (GC
Exh. 10):
As you are aware, UFCW Local 2013 is the certified Collective
Bargaining representative of employees working for the Espla-
nade Hotel (“Esplanade”) and is party to a Collective Bargain-
ing Agreement (“CBA”) with that Company. We have been
advised that 305 West End Avenue Operating LLC (“305
LLC”) is acquiring the Esplanade and intends to operate the
facility. We are in receipt of a notice which states that 305 LLC
is interviewing for positions at the Esplanade. Please be ad-
vised that Local 2013 anticipates and expects that 305 LLC will
assume the existing CBA and retain all bargaining unit employ-
ees in their current positions. All current employees want to
continue their employment at the Esplanade. Be advised that
we will take all necessary actions to ensure the rights of our
members to their current positions.
On October 27, Respondents West End conducted interviews
of Esplanade Hotel employees who applied for continued em-
ployment. Baldoquin went to the facility that day. While at the
facility, Baldoquin approached a man who seemed to be in
charge and asked whether he was “aware that this is [a] union
shop?” The man answered, “to his knowledge, this wasn’t going
to be a union shop and that they had to reapply.” (Tr. 327–329.)
Baldoquin did not attempt to determine this man’s name and was
not asked, at trial, to describe his appearance.
In addition to the interviews conducted on October 27, on No-
vember 18, Respondents West End held a job fair at a Marriot
hotel which was attended by employee applicants who were, for
whatever reason, not interviewed on October 27 and other appli-
cants who were not previously employed at the Esplanade Hotel.
Although outside applicants were interviewed, Kayani testified
that Respondents West End wanted to retain as many Esplanade
Hotel employees as possible because current employees would
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
require less training and it would be costly and time consuming
to replace them.
Erik Anderson, Respondent Ultimate’s vice present of human
resources, helped organize and coordinate the interview process.
However, he only interviewed a few applicants himself when the
primary interviewers were occupied. The interviews were
largely conducted by regional managers of Respondent Ultimate,
including Kayani; Susan Murphy, regional director of dining ser-
vices (front of the house dining as opposed to the kitchen); Paul
Senken, regional director of food and beverage services; Randy
Tremble, vice president of food and beverage services; Clement
Walsh, regional director of housekeeping; Brian White, vice
president of environmental services; and Richard Youngberg, re-
gional director of operations. Applicants were generally inter-
viewed by the manager who would be responsible for the depart-
ment in which the applicant was seeking a job. However, Kayani
interviewed applicants for all departments. Levitt was not in-
volved in the hiring of employees. Some applicants were inter-
viewed more than once, and some were interviewed by more
than one manager at a time.
The interviews generally lasted anywhere from 5 to 15
minutes. However, Murphy testified that she spent more time
than that with the applicants.
According to Anderson, interviewers looked for applicants
with “inner qualities” or “core values,” which would allow the
company to provide excellent customer service and succeed in a
“relationship business.” (Tr. 504.) Thus, Respondents West End
wanted employees with an engaging personality and attitude,
good work ethic, and a commitment to team work. Anderson
testified that an applicant’s skills and technical abilities were val-
ued but noted that such skills/abilities could be taught. Anderson
believed inner qualities and core values were more difficult to
teach and a priority in selecting employees. Moreover, Anderson
testified that a significant percentage of the staff of the Esplanade
Hotel were unskilled employees (e.g., porters and housekeepers)
who could be trained.
Tremble largely echoed Anderson’s testimony to the extent he
believed personality and attitude were most important for “front
of the house” staff who are easily trained and have regular inter-
action with residents. However, according Tremble, “back of the
house” employees, such as cooks, who do not have as much con-
tact with residents and are more skilled, need to demonstrate ex-
perience and skill before being hired. Similarly, White testified
that maintenance engineers need to come with prior knowledge,
skills, and experience.
Respondents West End was not given access by Respondents
Esplanade to employee personnel files. Tremble noted that in-
terviewers do not normally have access to personnel files when
hiring employees in situations that do not involve the sale of a
business. Tremble further testified that employees were being
interviewed “without prejudice.” Senken testified that he did not
believe personnel files would be especially helpful as documents
contained therein largely reflect the subjective opinions of super-
visors.
Upon cross-examination by Union Counsel, Anderson testi-
fied that he did not know whether the interviewers checked ref-
erences of newly hired employees who had not previously
worked at the Esplanade Hotel. Anderson testified that, ideally
in a normal situation, it is good practice to check the references
of applicants if time allows. Anderson asserted, however, that
references are rarely reliable, and this was not a normal situation.
Other than Anderson, none of the managers who conducted in-
terviews were examined about whether they checked applicant
references.
According to Anderson, interviewers had no prior experience
conducting interviews in a union environment. Therefore, he in-
cluded the following directive among instructions to interview-
ers in advance of the interviews (R. Exh. 24):
• All interviewing must be done without ANY regard
whatsoever to any individuals’ union or non-union sta-
tus.
• There must be no discussion in any manner of “union”
topics.
Respondent Ultimate’s human resource department provided
the interview team with “Applicant Evaluation” forms. These
applicant evaluations contained a rating matrix with a list of cat-
egories for job qualifications, and boxes next to each category to
be checked with a rating of poor, fair, average, good, or excel-
lent. Interviewers testified that they only used the applicant eval-
uations as a tool to the extent it was useful and did not necessarily
complete the form for every applicant. Tremble testified that it
was typical to hire applicants with ratings of “average” because
“average is decent.” (Tr. 573.)
Kayani testified that he did not need approval from anyone to
hire an applicant as he was the person who was ultimately re-
sponsible for hiring decisions. If Kayani “decided to hire some-
one, there was no other discussion.” (Tr. 434.) Kayani further
testified that other interviewers were also high ranking regional
managers who largely had authority to hire employees without
approval. By contrast, Anderson testified that the interviewers
made hiring decisions which were reviewed by Respondent Ul-
timate vice president of operations Maryellen McKeon. How-
ever, Anderson admitted that all the recommendations of the in-
terview team were approved by McKeon.
The New York Displaced Building Service Workers Protec-
tion Act (DBSWPA), N.Y.C. Admin. Code § 22-505, requires
covered employers to retain certain “building service employ-
ees” (BSE) following the sale of a business. This city ordinance
identifies BSEs as, excluding supervisors, those who earn less
than $35 per hour and are engaged in the care or maintenance of
a building. DBSWPA limits the ability of an employer to sever
BSEs as follows:
2. Upon termination of a building service contract, any covered
employer or the successor building service contractor, which-
ever person intends to furnish substantially similar building ser-
vices to those that were provided under the terminated building
service contract, shall retain those building service employees
employed at the buildings covered by the terminated contract
for a 90-day transition employment period.
3. If at any time the covered employer or successor building
service contractor, whichever person intends to furnish sub-
stantially similar building services to those that were provided
under the terminated building service contract, determines that
fewer building service employees are required to perform
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 11
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
building services at the affected buildings than had been per-
forming such services by the former building service contrac-
tor, the covered employer or the successor building service
contractor shall retain the building service employees by sen-
iority within job classification; provided, that during the 90-day
transition period, the covered employer or successor building
service contractor shall maintain a preferential hiring list of
those building service employees not retained at the buildings
who shall be given a right of first refusal to any jobs within their
classifications that become available during that period.
4. Except as provided in paragraph 3 of this subdivision, during
the 90-day transition period, the covered employer or successor
building service contractor, whichever person intends to fur-
nish substantially similar building services to those that were
provided under the terminated building service contract, shall
not discharge without cause a building service employee re-
tained pursuant to this section.
5. At the end of the 90-day transition period, the covered em-
ployer or successor building service contractor, whichever per-
son intends to furnish substantially similar building services to
those that were provided under the terminated building service
contract, shall perform a written performance evaluation for
each building service employee retained pursuant to this sec-
tion. If such employee’s performance during such 90-day tran-
sition period is satisfactory, the covered employer or successor
building service contractor shall offer such employee contin-
ued employment under the terms and conditions established by
the covered employer or successor building service contractor.
Respondents West End interpreted this ordinance to require
the retention for 90 days of certain BSEs employed at the Espla-
nade Hotel, including housekeepers, porters, laundry assistants,
and maintenance engineers. Walsh testified that he was respon-
sible for hiring the housekeepers and porters. According to
Walsh, in December, he made determinations whether to hire
housekeepers and porters even though they had to be retained
until March 5, 2017, as a matter of law. Walsh claimed he did
not know until after the interview process was over that BSEs
had to be retained for 90 days. However, Kayani testified that
BSEs were identified before December 5, and no determination
was made in December whether to retain them beyond the man-
datory 90-day period. Rather, according to Kayani, BSEs were
given the same training and opportunity for continued employ-
ment as other employees and, like other employees, Respondents
West End preferred to retain them if possible instead of replacing
them.
Respondents West End has identified 15 predecessor employ-
ees who were retained in what it understood to be BSE classifi-
cations (7 housekeepers, 3 porters, 1 laundry assistant, 4 mainte-
nance assistants).
On December 2, McKeon sent an email to Respondent West
End owner Steven Krieger with an attachment purporting to list
the names of 29 former employees who were not being hired. Of
those employees, 18 employees (16 kitchen and 2 front desk)
were identified as non-BSEs and 11 employees (7 housekeeping
and 4 porters) were identified as BSEs. McKeon was not called
to testify at trial.
The following alleged discriminatees were not hired by Re-
spondents West End:14
Last Name First Name Department Job Title15
Brannon Terrel Kitchen
Cabness Anthony Kitchen Waitstaff Server
Colon Augstina Kitchen Waitstaff Server
Dalmage Davian Kitchen Waitstaff Server
Dejesus Dora Y. Kitchen
Duncanson Deannie Kitchen
Hardy Trinidad Front Desk Front Desk Concierge
James Lisa Kitchen Waitstaff Server
Jerome Henry Kitchen Waitsfaff Server
Joseph Lynda Kitchen
Mullen Virginia Front Desk Front Desk Concierge
Roberts Kimeyetta Kitchen
Smith Astley Kitchen Waitstaff Server
Terrier Laurent Kitchen Chef
Weber Denis Kitchen Waitstaff Server
14 Of these employees, Cabness and Roberts were not among the em-
ployees identified in McKeon’s December 2 email as employees who
would not be hired.
15 The record does not clearly indicate the job title of certain alleged
discriminatees, including Brannon (whose title is disputed).
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Certain employees of Respondents Esplanade who were not
hired by Respondents West End, including Hardy, signed re-
leases in exchange for monetary compensation. These agree-
ments indicate that the employee “release(s) County Agency.
Inc. and Esplanade Venture Partnership and their respective af-
filiates, successors and assigns, from all claims, whether known
or unknown, arising from or in connection with the . . . National
Labor Relations Act; . . .” The release agreements further state:
Nothing in this Release shall be construed so as to prohibit me
from filing a charge with or participating in any investigation
or proceeding conducted by a local, state, or federal agency,
including but not limited to the EEOC. This Release shall, how-
ever, prohibit me from recovering any individual relief, com-
pensation, or damages in any such charge, complaint, or claim
filed by anyone.
Youngberg interviewed front desk concierge employees, in-
cluding Hardy. According to Youngberg, Hardy “came in with
a look of anger and disgust that we were even going through this
process. Just a body language, angry face.” (Tr. 756.) Young-
berg testified that Hardy was not hired “because we are a busi-
ness of attitude, customer service, professionalism, and if my
loved one was moving into one of our communities, I would
truly want someone that would greet me in a professional, posi-
tive attitude.” (Tr. 757.) However, Youngberg completed an ap-
plicant evaluation that graded Hardy as “excellent” (the highest
grade) in the categories of “guest service & hospitality personal-
ity” and “enthusiasm.”16 Youngberg admitted that these catego-
ries would encompass customer service, and a rating of “excel-
lent” in those categories would not normally be consistent with
someone who showed “anger and disgust” during the interview.
Youngberg offered no explanation for this discrepancy between
his testimony and the applicant evaluation he completed for
Hardy.
Tremble interviewed Duncanson and decided not to hire her.
According to Tremble, he did not hire her because she was in
charge of an area that appeared to be in particularly poor condi-
tion. Tremble also noted that Duncanson did not have experi-
ence with formal dining.17 Tremble testified that Duncanson
said during the interview she could do things other than manage
but did not indicate she would accept a lower position than the
one she currently held.
Other than Hardy and Duncanson, the alleged discriminatees
largely received ratings on their applicant evaluations of “aver-
age” or worse (to the extent an applicant evaluation was com-
pleted and entered into evidence). Only three of the alleged dis-
criminatees (Brannon, Terrier, and Dejus) received ratings of
“good” in any category. Brannon received ratings of “good” in
16 Youngberg graded Hardy as “good” in all other categories except
flexibility (which was rated “average”). Youngberg did not explain why
Hardy was only rated “average” in flexibility.
17 Like Hardy, Duncanson was rated “excellent” in the categories of
“guest service & hospitality personality” and “enthusiasm,” and “good”
in all other categories except “flexibility” (which was rated “average”).
18 This count includes predecessor employees hired on December 5
and new employees hired no later than December 8 (the first pay day).
(GC Exh. 32) Respondent West End asserted in its brief that 46
the categories of “appearance/presentation” and “communica-
tion skills,” but “poor” in “enthusiasm” and “fair” in “team
building.” His overall assessment was “fair.” Terrier received a
rating of “good” in “guest service & hospitality personality,” but
was not graded in any other category. Dora Dejesus received a
rating of good in “enthusiasm,” but “poor” in “team building”
and “initiative.” Her overall rating was “fair.”
Server Barbarba Nichols, a server of Respondents Esplanade
who was hired by Respondents West End, received ratings of
“average” in all categories.
Among the new employees who were hired even though they
did not previously work at the Esplanade Hotel, three were ref-
erenced in the General Counsel’s brief in connection with an ar-
gument of disparate treatment: Cook Jose Cabrera, server Dean-
dra Williams, and utility aide/dishwasher Augustine Batista. On
his applicant evaluation, Cabrera received ratings of “good” in
six categories. Two additional categories were checked “aver-
age,” but with an arrow pointing toward the box for “good.” One
category, “appearance/presentation,” was clearly checked “aver-
age.” Williams received ratings of “good” in seven categories,
and “average” in two categories (“initiative” and “time manage-
ment”). Batista received ratings of “average” in five categories,
and “fair” in one category (“communication skills”). Batista was
not rated in three categories.
Respondents West End believed the Esplanade Hotel had been
overstaffed at the front desk and in the food and beverage depart-
ment (i.e., the kitchen and waitstaff). Respondents West End
maintained the engineering staff in full as, according to White,
the existing staff fit the needs of the new employer.
The interviewers generally testified that they understood the
old Esplanade Hotel staff to include union and nonunion employ-
ees but claimed that hiring decisions were not made on the basis
of union affiliation. Respondent Ultimate does not manage other
unionized facilities.
Post-Sale
Respondent Ultimate took over the management of the facility
following the sale. Initially, Respondent Ultimate’s regional
managers maintained a near daily presence at the facility to train
employees and bring the new operation up to desired standards.
Although these managers stopped coming as often once the op-
eration stabilized, they maintained responsibility for the facility
and continued to visit on a less frequent basis. Among their re-
sponsibilities, regional managers were involved in disciplinary
and discharge determinations.
The General Counsel asserts that Respondents West End ini-
tially hired 44 employees in unit classifications and, of those, 36
were former employees of the predecessor. My count reflected
the same results.18 Respondents West End also hired five nonunit
nonsupervisory/nonrecreation positions (i.e., unit classifications) were
initially filled. This number seems to include Mike Whyte (listed on GC
Exh. 32 as hired and terminated December 5) and Tyler Bogen (listed on
GC Exh. 32 as hired July 12). However, GC Exh. 32 is some sort of
chart and does not appear to be actual payroll records. Whyte does not
appear on the payroll as having worked for Respondents West End and
Bogen does not appear on the payroll until January 2017. (GC 18.) Thus,
I have not included Whyte or Bogen among the initial complement. At-
tached to this decision is a list of personnel hired by Respondents West
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 13
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
recreation employees who were previously employed by the pre-
decessor.
Respondents West End identified 15 predecessor employees
it hired as individuals, whom it believed, were not dues paying
members of the Union. Those 15 employees included the five
nonunit recreational employees.19
Scharf, Levitt, and Singer maintained a presence at the facility
after the sale. Levitt was initially retained as the executive di-
rector without an adjustment in salary but was later transferred
to the position of director of resident relations. Scharf has main-
tained an office at the facility, but it is not clear what type of
work he has done after the sale. Singer continued as controller
until about April 2017, when he separated.
According to Levitt, residents of the building were not af-
fected by the sale and “there was a complete continuity of ser-
vices.” (Tr. 207.) Residents continued to receive three meals a
day, housekeeping services, laundry services, concierge ser-
vices, recreation, and entertainment. Levitt also testified that she
was unaware of any change in employees’ job duties.
On December 20, Kayani sent the following email to manag-
ers/supervisors, including Tremble, Murphy, Walsh, Levitt,
O’Connell, and Brown (GC Exh. 34):
Please make sure ANY and ALL new hires go through me in-
cluding those that will go into the kitchen/dining. This means
that I meet them, even if it is for 5-minutes. I also would like
their new hire packet completed given to me, hand delivered
OR if I am NOT in the Community; scanned over to Maria and
myself
including Eli. And this should be done BEFORE they start not
after. (original packet left for me to collect. I will review and
FedEx over to Bohemia).
Same goes for termination - If someone resigns that is a differ-
ent story, but if someone will be terminated, I MUST be noti-
fied immediately and it must be done in my presence. After the
termination the respective Department head MUST complete a
West End Termination Form and hand deliver it to me or
SCAN if over to Maria, Eli and myself. (original one to be
given to me when I am in the building and I will get that to
Bohemia).
I understand we have a lot going on but at the same time, in-
consistencies in these areas can and will lead to potential
End with references to employees’ positions, hire dates, separation dates,
and BSE status (according to Respondent West End).
19 Throughout the trial, the General Counsel and Union objected to
the introduction of evidence regarding dues paid by employees and/or
their status as Union members. I largely sustained these objections to the
extent Respondents West End was not merely attempting to establish its
awareness and understanding of the same. The General Counsel has not
contended that Respondents West End discriminated against employees
on the basis of their respective Union membership. Rather, the General
Counsel alleges that Respondents West End failed to hire predecessor
employees to avoid successorship.
20 Although the record contains testimony regarding NY DOH licens-
ing requirements for the medical care of residents in assisted living fa-
cilities, Respondent West End did not specifically cite to state law or
payroll errors that we do not want. Therefore, I want everyone
to take this very seriously.
It was the intent of Respondents West End to operate the Es-
planade Hotel as a high end assisted living facility with appro-
priate certification from the NY DOH and high-level ser-
vices/amenities. Levitt testified that an assisted living facility
has certified home-health attendants and a round-the-clock nurs-
ing staff who keep medical records for each resident and monitor
their medication. Kayani testified that an assisted living facility
needs to monitor health care providers entering the building by
having them sign in/out and ensuring, through a background
check, that they are properly licensed. According to Kayani, an
assisted living facility must also monitor and comply with the
dietary restrictions of residents while an independent living fa-
cility does not. Kayani further testified that, in an assisted living
facility, even nonmedical employees need to be aware of and
ready to report potential medical problems of residents. As an
example, Kayani said a porter should report blood in the toilet
after seeing a resident exit the bathroom. According to Levitt,
the primary difference between an assisted and independent liv-
ing facility is that the former provides medical services and the
latter does not.20 As of the trial, Respondents West End had not
begun providing medical services to residents or medical train-
ing to staff members.
Several managers of Respondents West End testified that the
condition of the Esplanade Hotel prior to the sale was deplorable,
particularly the kitchen, dining room, and employee lounge. An-
derson testified that the administrative records were also ex-
tremely disorganized. The General Counsel did not attempt to
rebut this characterization of the facility.
As of the trial, Respondents West End were in the process of
renovating the building and applying for a license from the NY
DOH to operate as an assisted living facility. Renovations were
scheduled to occur in two phases with phase 1 being renovations
from the basement to the seventh floor and phase 2 being reno-
vations from the eighth floor to the roof. These renovations
started in the basement in about the spring of 2017. Kayani es-
timated that Phase 1 is about 35-40 percent done and would be
finished in about 5 or 6 months. Phase 2 was expected to begin
in January 2019 and, according to Kayani, the entire process
could take 2 years.
Kayani represented that he expected the NY DOH to grant the
facility a license on a rolling floor-by-floor basis as renovations
progressed. Kayani testified (on April 4, 2018) that construction
regulations regarding the same. I take administrative notice that the NY
DOH website, under “Adult Care Facilities/Assisted Living,” states that
“Adult Care Facilities (ACF) provide long-term, non-medical residential
services to adults who are substantially unable to live independently due
to physical, mental, or other limitations associated with age or other fac-
tors. Residents must not require the continual medical or nursing ser-
vices provided in acute care hospitals, in-patient psychiatric facilities,
skilled nursing homes, or other health related facilities, as Adult Care
Facilities are not licensed to provide for such nursing or medical care.”
https://www.health.ny.gov/facilities/adult_care/. Legal information re-
garding what assisted living facilities can and cannot do may be found in
the New York public health law and applicable rules and regulations.
NY Pub Health L § 4651*2; 10 CRR-NY 1001.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on the seventh floor is complete and he hoped to receive a license
for assisted living on that floor within the month. However, the
record closed on May 31, 2018 and contains no evidence that the
facility has been licensed in whole or in part for assisted living.
The record is largely silent with regard to the size and compo-
sition of the medical staff Respondents West End intends to em-
ploy once the facility is licensed for assisted living. Kayani tes-
tified that a registered nurse (RN) has been retained with the
hope that the facility would be licensed for assisted living on the
seventh floor by the end of April 2018. This RN would not ac-
tually start work until the facility received a license to operate on
at least one floor. The record contains no evidence that the RN
has started working.
Respondents West End presented evidence of changes it has
or plans to implement following the sale. Front desk employees
were provided with uniforms and reduced in number from a
maximum of three per shift to a maximum of two per shift. The
waitstaff employed on each shift was reduced as well. Managers
described the kitchen and dining area as filthy, unorganized, and
cluttered, with expired food, broken appliances, missing ceiling
tiles, and missing lights. Accordingly, these areas have been
cleaned, restocked, and fixed.
Kayani testified that all employees, including BSEs, were
reevaluated by about April 20, 2017. However, there was no
formal process for preparing written reviews during an initial
probationary period. Rather, according to Kayani, written eval-
uations were only prepared for employees who were terminated
during the probationary period. The remaining employees re-
ceived standard annual evaluations at some point during the year.
Respondents West End did not, on March 5, 2017, 90 days
after the sale, discharge the nine BSEs who remained after being
identified in the attachment to McKeon’s December 2 email as
employees who would not be hired.21 As of March 6, 2017, Re-
spondents West End employed 55 employees in unit classifica-
tions. Of those employees, 31 were still incumbent employees
who worked at the Esplanade Hotel prior to the sale.
Seven BSEs were terminated on March 23 or 24, 2017. Two
of the BSEs allegedly designated for termination on the Decem-
ber 2 list were, nonetheless, retained indefinitely. Kayani testi-
fied that these two BSE porters were retained because they, like
other employees who were not discharged, demonstrated com-
petence during the first 90 days of their employment. Walsh tes-
tified that BSEs who were terminated had problems with attend-
ance and taking direction. Respondents West End replaced all
of the BSEs who separated (either by resignation or termination).
By my count, once the last BSEs were terminated, new employ-
ees outnumbered predecessor employees 26 to 24.22
ANALYSIS AND CONCLUSIONS
I. JOINT EMPLOYERS
Respondents Esplanade
The General Counsel contends that Respondent Esplanade
and Respondent County are joint employers. I agree.
21 Two of these BSEs apparently resigned during the retention period.
22 The General Counsel asserted that the complement was still 32 to
27 employees in favor of predecessor employees as of March 30, 2017.
This count appears to be based on names in the payroll records for the
Under the current standard, “(t)he Board may find that two or
more statutory employers are joint employers of the same statu-
tory employees if they ‘share or codetermine those matters gov-
erning the essential terms and conditions of employment.’”
Browning-Ferris Indus. of California, Inc., 362 NLRB 1599
(2015) quoting NLRB v. Browning-Ferris Industries of Pennsyl-
vania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982). “(T)he question
is whether one statutory employer ‘possesse(s) sufficient control
over the work of the employees to qualify as a joint employer
with’ another employer.” Id. quoting Boire v. Greyhound Corp.,
376 U.S. 473, 481 (1964).
It is uncontested that Respondent Esplanade was owned and
operated by the Scharf family. Scharf and Singer negotiated the
most recent collective-bargaining agreement, which was a com-
prehensive contract that governed unit employees’ terms and
conditions of employment. Scharf signed the contract as a rep-
resentative of “County Agency Esplanade.” Shortly thereafter,
in settling a grievance regarding paid leave, Singer indicated that
the Union’s offer was “agreeable to the Esplanade and County
Agency.” Thus, Scharf and Singer appeared to be acting on be-
half of two employers, Respondent Esplanade and Respondent
County. As Respondent County admits that it employed unit
employees and the record demonstrates that Respondent Espla-
nade codetermined the essential terms and conditions of employ-
ment of those employees, I find that Respondents Esplanade are
joint employers.
Levitt’s conclusory testimony that “we all worked for (Re-
spondent) County” was neither credible nor convincing. Rank-
and-file employees were called by both sides to testify and none
indicated they understood anyone at the Esplanade Hotel to be
employed by Respondent County. Rather, employees testified
that they understood the employer to be the Esplanade Hotel as
owned by the Scharf family.
Respondents West End
The General Counsel contends that Respondent West End and
Respondent Ultimate are joint employers. Once again, I agree.
Respondent Ultimate’s regional managers hired the initial
complement of employees, and continued to visit and maintain
authority over the facility after the sale. Thus, regional managers
have remained involved in employee discipline. On December
20, Kayani sent an email to managers (including regional man-
agers Tremble, Murphy, and Walsh) indicating that he (Kayani)
must approve any subsequent hires and terminations. Although
the record is not entirely clear on the point, it stands to reason
that Respondent Ultimate managers responsible for hiring em-
ployees also set the terms and conditions of their employment.
Certainly, no evidence was introduced to the contrary. Accord-
ingly, I find that Respondents West End codetermined the essen-
tial terms and conditions of employment of unit employees and
are joint employers.
payday, March 30, 2017. However, GC Exhibit 32 indicates that BSEs
were discharged on March 23 and 24, 2017. It seems that these employ-
ees were paid on May 30, 2017, even though they were no longer em-
ployed as of that date.
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 15
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
II. SUCCESSOR ANALYSIS
Respondents West End as a Successor of
Respondents Esplanade
The General Counsel contends that Respondents West End is
a successor of Respondents Esplanade. I agree.
A successor employer has a duty to recognize and bargain
with an incumbent union when, after assuming the business of a
predecessor, it maintains a continuity of the enterprise and a con-
tinuity of the work force with the presumption of majority sup-
port in an appropriate unit. NLRB v. Burns International Secu-
rity Services, Inc., 406 U.S. 272 (1972); Fall River Dyeing &
Finishing Corp. v. NLRB, 482 U.S. 27 (1987). Respondent West
End contests the continuity of the enterprise, the continuity of
the work force, and the appropriateness of the unit. In contesting
the unit, Respondent West End contends that Respondents Es-
planade and the Union maintained a members-only arrangement
whereby only dues paying Union members received wages and
benefits pursuant to the contract.
Unit
The Board has held that an incumbent union will not retain a
presumption of majority support within a unit if the unit lacked
clarity or the parties administered their contract on a members-
only basis. Arthur Sarnow Candy Co., Inc., 306 NLRB 213
(1992); Brower’s Moving & Storage, 297 NLRB 207, 208
(1989); Ace-Doran Hauling & Rigging Co., 171 NLRB 645
(1968). In Browser’s Moving & Storage, 297 NLRB at 208, the
Board stated as follows:
[I]t is well established in Board law that an incumbent union
generally enjoys a presumption of continued majority status
during the term of a collective-bargaining agreement. In Ace-
Doran Hauling & Rigging Co., supra, the Board found a nar-
row exception to that general rule when two factors under-
mined the validity of the contract and the presumption of ma-
jority status. First, the Board found that the unit was not de-
fined with sufficient clarity “to warrant a finding that the con-
tracts are ones to which a presumption of majority status can
attach.” (Id. at 645.) Second, the Board found that both parties’
practice under the agreements showed that the parties did not
intend them to be effective collective-bargaining agreements,
but merely arrangements to check off dues and to procure ben-
efits for union members only. (Id. at 646.) Similarly, in Bender
Ship Repair Co., (188 NLRB 615, 615 (1971)), the Board
found a “patent ambiguity” in the contractual unit definition
and that the union acquiesced in the application of the contract
to only a few favored employees. (Id. at 616)
Here, Levitt testified that she gave higher raises than the con-
tract required to employees who were considered nonunion.
However, Levitt was not a credible witness and I do not rely on
her testimony in the absence of documents to substantiate her
23 Respondent West End did not indicate that it attempted, with sub-
poena power, to obtain records from Respondent County as would estab-
lish that employees received pay and/or benefits inconsistent with the
contract.
24 If Respondent West End’s theory were adopted, nonmember em-
ployees who do not pay union dues or financial core fees in right-to-work
claim that the contract was not applied to certain employees. The
best evidence would be payroll records and other documents
showing the receipt of wages and benefits by employees. See
Electronic Data Systems International Corp., 278 NLRB 125
(1986). Contrary to Levitt’s self-serving testimony, the 2016
payroll records show that employees received wage increases of
$0.40 per hour and premium pay consistent with the contract.23
At most, Respondent West End has arguably demonstrated
that the Union did not enforce the union security clause with re-
spect to certain employees who were not paying dues. I make no
factual finding in this regard as, even if true, it is not controlling
of the legal issue. The Union’s alleged failure to demand the
discharge of employees pursuant to the union security clause
does not mean those employees were denied representation or
that the presumption of their support for the Union should not
apply. As noted above, the credible evidence indicates that em-
ployees were covered by the collective-bargaining agreement
and paid accordingly. In fact, the employees’ receipt of contrac-
tual pay without incurring the cost of bargaining would arguably
make the Union more attractive rather than less. See Pacific
Coast Supply, LLC, 360 NLRB 538, 545 fn.11 (2014), citing Ter-
rell Machine Co. v. NLRB, 427 F.2d 1088, 1090 (4th Cir. 1970))
(ALJ observes that, in Terrell, the court did not find employee
nonmembership in right-to-work state suggestive of employees’
disaffection from the union as employees could be content with
benefits of representation without paying for them).24 Regard-
less, the law provides for a presumption regarding the union sup-
port of incumbent unit employees and does not turn on or require
a hearing as to their subjective feelings.
It is admittedly puzzling that the Union was not aware that
recreation employees were employed at the Esplanade Hotel and
failed to take the position, once it found out, that recreation em-
ployees must be included in the wall-to-wall unit. However, the
contractual unit was specifically described and the Union’s fail-
ure to seek the inclusion of five previously unknown recreation
employees did not render the unit description ambiguous.
Based upon the foregoing, I will not apply the “narrow excep-
tion” referenced in Ace-Doran Hauling & Rigging Co. to find
that the Union lacks majority support because the unit lacked
clarity or the predecessor’s contract was administered on a mem-
bers-only basis.
Continuity of the Enterprise
In determining the continuity of the enterprise between prede-
cessor and successor operations, the Board considers the follow-
ing factors among the totality of the circumstances: “(1) whether
the business of both employers is essentially the same; (2)
whether the employees of the new company are doing the same
jobs in the same working conditions under the same supervisors;
and (3) whether the new entity has the same production process,
produces the same products, and basically has the same body of
customers.”25 Allways East Transportation, Inc., 365 NLRB No.
states would not be counted toward an incumbent union’s support in a
successor analysis. The Board has not adopted such an approach to con-
tinuity. See, e.g., Empire Janitorial Sales & Service, LLC, 364 NLRB
No. 138 (2016).
25 The Supreme Court has observed that succession rests largely “in
the hands of the successor” in that it must make “a conscious decision to
16 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
71 (2017) citing Fall River Dyeing, 482 U.S. at 43. These factors
are analyzed from the perspective of unit employees and whether
they “‘understandably view their job situations as essentially un-
altered.”‘Id. quoting Golden State Bottling Co., 414 U.S. 168,
184 (1973). Accordingly, “the essence of successorship . . . is
not premised on an identical re-creation of the predecessor’s cus-
tomers and business . . . .” A.J. Myers & Sons, Inc., 362 NLRB
365, 371.
Here, Respondents West End did not significantly alter the op-
eration following the sale. According to Levitt, the existing res-
idents experienced a “complete continuity of services,” and the
evidence does not indicate that the cleaning and ongoing reno-
vation of the building had the effect of significantly changing the
nature of the business. Respondents West End determined that
the facility was somewhat overstaffed and reduced the number
of certain employees on certain shifts, but did not change the
tasks those employees performed or their working conditions.
The record also indicates that Levitt, Scharf, Singer, and at least
some supervisors, were retained by Respondents West End. Alt-
hough certain managers and supervisors did change, the opera-
tion was not impacted in such a significant way as to undermine,
from the perspective of unit employees, a continuity of the en-
terprise. See e.g., Empire Janitorial Sales & Service, LLC, 364
NLRB No. 138 (2016).
Respondents West End contend that certain changes were
planned and would take effect once the Esplanade Hotel transi-
tioned to an assisted living facility. However, Respondents West
End acquired the property on December 5 and had not received
a license, in whole or in part, up to and through the litigation of
this matter, 16 months later. I do not rely on Kayani’s self-serv-
ing testimony that at least one floor was going to be licensed by
the end of the month since the trial continued for another two
months without evidence of the same. The record indicates that
Respondents West End has done no training of employees with
regard to the provision of medical services and the record does
not contain significant evidence as to how specific unit positions
would change once the facility is licensed for assisted living.26
The limited evidence Respondent West End presented regard-
ing future changes to its operation are not of a type that, even if
already implemented and described in greater detail, would de-
feat a finding of successorship. In Morton Development Corp.,
299 NLRB 649 (1990), the Board rejected an employer’s con-
tention that it had no obligation to bargain with an incumbent
union after closing for over 4 months in order to convert its in-
termediate care facility for the intellectually disabled to a skilled
nursing home.27 In so doing, the Board found the new operation
“sufficiently similar to its old business” to sustain a continuity of
its bargaining obligation even though it changed its mission and
customers, made some physical changes to the facility, sold/pur-
chased certain equipment, and increased its medical services. Id.
See also Empire Janitorial Sales & Service, LLC, 364 NLRB No.
maintain generally the business” and “take advantage of the trained work
force of its predecessor.” Fall River Dyeing, 482 U.S. at 41.
26 Although Respondents West End has retained one RN, the RN has
not begun working and cannot be included in a non-professional unit
without choosing the same in a self-determination election. The law is
also unclear as to the type of medical services an assisted living facility
may provide.
138 (2016). The Board, in Morton Development, 299 NLRB at
651, noted in part, as follows:
[T]here were minor changes in the way the service and mainte-
nance employees performed their jobs. Cooks and dietary aides
now prepare more specialized foods and trays for the elderly
residents; the housekeeping aides work around medical equip-
ment and may work around residents who cannot be moved;
and the laundry aides actually launder washables rather than
showing residents how to perform laundry duties. Employees
who were formerly living unit aides became nurses aides and
have increased nursing responsibilities. Nevertheless, they,
along with activities aides, basically *652 remain responsible
for assisting residents in their daily routine. The current resi-
dents are, however, more frail and less mobile than the former
residents and can spend only a small part of their time in pro-
grammed activities. Maintenance employees now encounter
fewer problems with equipment and furniture that has been
damaged by residents. Nonetheless, upon the Respondent’s re-
opening, as the judge originally observed, cooks still cooked,
maintenance persons still repaired, and aides still aided resi-
dents.
Respondents West End does not purport to be planning more
extensive changes to the operation than the changes imple-
mented in Morton, and I find that Respondents West End main-
tained a continuity of the enterprise with its predecessor.
Continuity of the Work Force
A successor will be found to have maintained a continuity of
the predecessor’s work force and will be presumed to have ma-
jority support among unit employees if, upon hiring a “substan-
tial and representative complement” or “full complement” of
employees, a majority were employed by the predecessor in an
appropriate unit. NLRB v. Burns International Security Services,
Inc., 406 U.S. 272 (1972); Fall River Dyeing & Finishing Corp.
v. NLRB, 482 U.S. 27 (1987). This is because Board policy pre-
sumes the employees of a unionized employer will continue
to support the union after a new employer takes over, and gener-
ally requires the successor employer to recognize the union if a
majority of its work force were employed by the predecessor in
an appropriate unit. Fall River Dyeing, 427 U.S. at 40; Labor
Plus, LLC, 366 NLRB No. 109 (2018). The Supreme Court ex-
plained in Fall River Dyeing, 482 U.S. at 39–40, the importance
of presumptions in the context of successorship as follows:
The rationale behind the presumptions is particularly pertinent
in the successorship situation and so it is understandable that
the Court in Burns referred to them. During a transition be-
tween employers, a union is in a peculiarly vulnerable position.
It has no formal and established bargaining relationship with
the new employer, is uncertain about the new employer’s plans,
and cannot be sure if or when the new employer must bargain
27 Morton Development was not a successor case in that the putative
successor was the same corporate entity as the predecessor. The Board
“recognized, however, the usefulness of the factors applied in making
successorship determinations” and relied on Board successor cases in
conducting a continuity analysis. 299 NLRB at 650.
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 17
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
with it. While being concerned with the future of its members
with the new employer, the union also must protect whatever
rights still exist for its members under the collective-bargaining
agreement with the predecessor employer. Accordingly, dur-
ing this unsettling transition period, the union needs the pre-
sumptions of majority status to which it is entitled to safeguard
its members’ rights and to develop a relationship with the suc-
cessor.
The position of the employees also supports the application of
the presumptions in the successorship situation. If the employ-
ees find themselves in a new enterprise that substantially re-
sembles the old, but without their chosen bargaining repre-
sentative, they may well feel that their choice of a union is sub-
ject to the vagaries of an enterprise’s transformation. This feel-
ing is not conducive to industrial peace. In addition, after being
hired by a new company following a layoff from the old, em-
ployees initially will be concerned primarily with maintaining
their new jobs. In fact, they might be inclined to shun support
for their former union, especially if they believe that such sup-
port will jeopardize their jobs with the successor or if they are
inclined to blame the union for their layoff and problems asso-
ciated with it. Without the presumptions of majority support
and with the wide variety of corporate transformations possi-
ble, an employer could use a successor enterprise as a way of
getting rid of a labor contract and of exploiting the employees’
hesitant attitude towards the union to eliminate its continuing
presence.
In deciding when the prospective successor has hired a full
complement of employees, the Board considers whether the job
classifications designated for the operation were filled or sub-
stantially filled, whether the operation was in normal or substan-
tially normal production, the size of the complement on that date,
the time expected to elapse before a substantially larger comple-
ment would be at work, and the relative certainty of the em-
ployer’s expected expansion. Fall River Dyeing, 482 U.S. at 49;
Labor Plus, LLC, 366 NLRB No. 109 (2018).
I find that Respondents West End was a successor as of the
date of the sale, December 5. Respondents West End provided
“a complete continuity of services,” as described by Levitt, to the
same residents when it assumed control of the Esplanade Hotel.
Levitt also admitted that she was unaware of any change in em-
ployees’ job duties. Employees offered credible and undisputed
testimony that they continued to perform the same work and pro-
vided the same services before and after the sale. Respondent
West End’s assertion that certain employees should be included
in the complement but not counted toward the Union’s majority,
because they were not dues paying Union members, has no legal
support and misconstrues the concept of a presumption.
Nevertheless, Respondent West End contends it could not
have hired a substantial and representative complement of
28 Respondent West End is on even more dubious factual and legal
grounds in asserting that five recreation employees should be counted
toward the complement but not counted toward the Union’s majority
support. Throughout the trial, and in its brief, Respondent West End’s
counsel represented that recreation employees were not unit employees.
It is, therefore, nonsensical to suggest that the five recreation employees
employees until the DBSWPA 90-day period for retaining BSEs
expired. This defense fails for a number of reasons.
First, Respondents West End did not actually reduce its staff
by discharging some or all of the BSEs after the required 90-day
retention period. All of the BSEs who were discharged were re-
placed. Since the BSEs were replaced, the complement of em-
ployees was unaffected by their ultimate severance and was full
as of December 5. By December 5, Respondents West End had
filled desired classifications and was operating at normal produc-
tion without any disruption of residential services.
Second, Respondent West End’s math is unconvincing.
McKeon’s December 2 email identified 11 BSEs who were, al-
legedly, not going to be hired. However, two of those BSEs were
retained indefinitely following the 90-day retention period.
Thus, at most, only nine BSEs (not 11) could arguably be ex-
cluded from the count. In its brief, Respondent West End asserts,
illogically, that none of the 15 BSEs should be counted toward
the Union’s majority support even though six (including four not
mentioned in the December 2 email) were retained indefinitely
(and all were unit employees employed by the predecessor).
Those six predecessor BSEs, at the very least, would be counted
toward the Union’s support.
Even if I were to accept as fact that Respondents West End
made a presale decision not to hire 11 BSEs (which, as discussed
below, I do not) and assume nine new employees would have
been hired in place of those who were not ultimately retained,
the amended count would be 27 predecessor employees to 17
new employees—a clear union majority. The record contains no
evidence that the complement was, in any other way, as of De-
cember 5, arguably distorted by local law. The normal turnover
of non-BSEs while certain BSEs were in the process of being
replaced has nothing to do with the DBSWPA, and Respondents
West End has no basis for opportunistically reaping the benefits
of the same to deny unit employees their bargaining representa-
tive.28
Third, as mentioned above, the factual assertion underlying
Respondent West End’s defense is unsubstantiated by the credi-
ble evidence. Respondent West End asserts in its brief that “the
record is undisputed that none of the housekeeping staff would
have been hired if Respondent had not been obligated to hire
them under the [DBSWPA].” (R. Br. p. 24.) This is incorrect as
the factual assertion was flatly disavowed by its own witness,
Kayani. Kayani testified that no determinations were made to
discharge BSEs in advance of the sale and Respondents West
End preferred to retain them indefinitely (like all other former
employees of the predecessor). I do not rely on McKeon’s De-
cember 2 email, which is hearsay, to reach a finding to the con-
trary. Likewise, I do not rely on the testimony of Anderson or
Walsh. Kayani credibly testified that he had the final say with
regard to hiring the predecessor’s employees. On December 20,
Kayani sent an email cautioning his managerial team to consult
should be counted toward the unit complement. Further, for the reasons
described above, if recreation employees were included in the comple-
ment, as predecessor employees, they would be counted toward the Un-
ion’s majority support. However, even if I we were to include the recre-
ation employees in the unit complement and not count them as presumed
union supporters, the Union would still enjoy a majority of 27 to 22.
18 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with him in advance of any terminations. Since Kayani had au-
thority over the hiring and retention of BSEs and had no plans
not to hire them in advance of the sale (or even discharge them
after 90 days), I reject the contention that Respondents West End
would not have hired certain BSEs but for the DBSWPA.
Last, but not least, in a case directly on point, the Board re-
jected the argument “that the successorship determination could
not be made until after the DBSWPA-mandated retention period
has ended.” GVS Properties, LLC, 362 NLRB 1771 (2015).29
The Board, in GVS Properties, observed that it “has long held
that the successorship determination is not affected by the tem-
porary or probationary status of the predecessor’s employees in
the successor’s work force, and it has found it inappropriate to
defer successorship determinations until after the completion of
employer-imposed probationary periods.” Id. The Board further
noted that this was so even where the retention of the predeces-
sor’s employees was required for a period of time as a provision
of the contract of sale. Id.
Based on the foregoing, I find that, as of December 5, Re-
spondents West End was a successor of Respondents Esplanade.
III. SECTION 8(A)(5) AND (1)—REFUSAL TO RECOGNIZE/BARGAIN
AND FURNISH INFORMATION
1. Refusal to Recognize and Bargain with the Union
Respondent West End has denied an obligation to bargain
with the Union on the grounds that (1) Respondent Ultimate was
not a joint employer with Respondent West and (2) they are not,
collectively, the successor of Respondents Esplanade. As dis-
cussed above, I have found that Respondent West End and Re-
spondent Ultimate are joint employers and, collectively, a suc-
cessor of Respondents Esplanade. Accordingly, I find that Re-
spondents West End violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the Union as the bar-
gaining representative of unit employees.
2. Refusal to Furnish Information to the Union
The General Counsel contends that Respondents Esplanade
violated Section 8(a)(5) and (1) of the Act by refusing to provide
the Union with information related to the sale of the facility. Re-
spondents Esplanade did not appear at trial or file briefs in de-
fense of this allegation. I agree that Respondents Esplanade vi-
olated the Act as alleged.
I have already determined, above, that Respondents Esplanade
are joint employers and, as such, are both under an obligation to
produce requested information that is relevant and necessary for
the Union to perform its function as the bargaining representative
of unit employees. Branch International Services, Inc., 313
NLRB 1293, 1296 (1994).
The Union requested the identity of prospective purchasers of
the business with contact information, a copy of any purchase
documents, communication between Respondents Esplanade
and purchasers as relate to the collective-bargaining agreement,
and any other documents which refer or relate to the sale. This is
29 Although Respondent West End relies heavily upon an ancillary
proceeding in which a district court denied the Board’s petition for 10(j)
relief, Paulsen ex rel. NLRB v. GVS Properties, LLC, 904 F.Supp.2d 282,
292 (E.D.N.Y)(2012), the Board in GVS Properties expressly rejected
the precedential value of that decision as it “is not binding on the Board.”
not information that is presumptively relevant as it does not per-
tain to the terms and conditions of employment of unit employ-
ees. Rather, the burden of establishing relevance is on the re-
questing party. However, the Board has adopted a liberal dis-
covery-type standard for information requests and the burden of
showing relevance is not exceptionally heavy. Columbia Col-
lege Chicago, 363 NLRB No. 154 (2016); A-1 Door & Building
Solutions, 356 NLRB 499, 500 (2011); Shoppers Food Ware-
house Corp., 315 NLRB 258, 259 (1994); Leland Stanford Jun-
ior University, 262 NLRB 136, 139 (1982), enfd. 715 F.2d 473
(9th Cir. 1983).
As noted in the successor section, the sale of a business is a
particularly vulnerable time for employees and their bargaining
representative. Accordingly, the “Board has . . . held that where
the union bargaining representative has received information that
the employer may be subcontracting unit work or has or may be
transferring its business to another, the union is entitled, on ap-
propriate request, to information bearing on that issue, so that the
union may properly represent the unit employees.” Washington
Star Co., 273 NLRB 391, 396 (1984), citing Westwood Import
Co., 251 NLRB 1213 (1980), and Air Express International
Corp., 245 NLRB 478 (1979).
Here, the Union justified its information request as being nec-
essary to monitor and enforce the contract, particularly Article
31 on successors and assigns. The information is arguably rele-
vant to this end as it would allow the Union to identify prospec-
tive buyers, determine whether the sale agreement provides for
assumption of the collective-bargaining agreement, and deter-
mine whether Respondents Esplanade notified the purchaser of
the collective-bargaining agreement (as required by art/ 31). An
employer might assert that the requested information is overly
broad and contains confidential information. However, “[i]t is
well established that an employer may not simply refuse to com-
ply with an ambiguous or overbroad information request but
must request clarification and/or comply with the request to the
extent it encompasses necessary and relevant information.” Co-
lumbia College Chicago, 363 NLRB No. 154 (2016) quoting Na-
tional Steel Corp., 335 NLRB 747, 748 (2001). Further, the
party asserting a confidentiality claim has the burden of proving
it and proposing an accommodation such as redactions. Wash-
ington Gas Light Co., 273 NLRB 116 (1984); United States
Postal Service, 364 NLRB No. 27 (2016). Respondents Espla-
nade did not contend that the Union’s information request was
overbroad or encompassed confidential information.
Based on the foregoing, I find that Respondents Esplanade vi-
olated Section 8(a)(5) and (1) of the Act by refusing to furnish
information requested by the Union on October 27.
IV. SECTION 8(A)(3) AND (1)—REFUSAL TO HIRE
The General Counsel contends that Respondents West End re-
fused to hire 15 of the predecessor’s employees in violation of
8(a)(3) of the Act. I find, herein, that Respondents West End
unlawfully refused to hire Steward Hardy, but will dismiss the
362 NLRB 1771fn. 12. Further, although the Board’s decision in GVS
Properties was ultimately “vacated as moot” by order of the United
States Court of Appeals for the District of Columbia, the circuit did not
reach or address the merits of the case and, regardless, its decisions are
no more controlling as precedent than those of the district court.
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 19
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
remainder of the refusal-to-hire allegations.
In successor situations, the Board does not apply the FES, 331
NLRB 9 (2000), refusal-to-hire analyses to the extent it requires
proof that the employer was actually hiring at the time of the al-
leged unlawful conduct and the applicant had relevant experi-
ence or training for the position. Planned Building Services, 347
NLRB 670 (2006). Rather, it is presumed that the successor is
hiring positions previously filled by predecessor employees and
that the predecessor employees are qualified to continue in those
positions. Id. Accordingly, consistent with Wright Line, 251
NLRB 1083 (1980), to establish “a violation of Section 8(a)(3)
and (1) in cases where a refusal to hire is alleged in a successor-
ship context, the General Counsel has the burden to prove that
the employer failed to hire employees of its predecessor and was
motivated by antiunion animus.” Id. The Board has held that
such proof includes the following:
[S]ubstantial evidence of union animus; lack of a convincing
rationale for refusal to hire the predecessor’s employees; incon-
sistent hiring practices or overt acts or conduct evidencing a
discriminatory motive; and evidence supporting a reasonable
inference that the new owner conducted its staffing in a manner
precluding the predecessor’s employees from being hired as a
majority of the new owner’s overall work force to avoid the
Board’s successorship doctrine.
Id. at 673 citing U.S. Marine Corp., 293 NLRB 669, 670 (1989),
enfd en banc 944 F.2d 1305 (7th Cir. 1991), cert. denied 503 U.S.
936 (1992). Once the General Counsel has shown that the em-
ployer failed to hire employees of its predecessor and was moti-
vated by antiunion animus, the burden shifts to the employer to
prove it would not have hired the predecessor’s employees even
in the absence of its unlawful motive. Id. at 674.
The parties have presented specific arguments with regarding
to employees Hardy and Duncanson, and I will address them be-
fore moving on to an analysis of the alleged discriminatees as a
group.
Trinidad Hardy
Respondents West End was admittedly aware that Hardy was
the shop steward. Further, through Scharf, Singer, and Levitt,
who were retained by Respondents West End following the sale,
Respondents West End would have known that Hardy was one
of the negotiators who represented the Union in negotiations for
the most recent collective-bargaining agreement.
Evidence of union animus consists largely of a discrepancy
between the favorable applicant evaluation Hardy received from
Youngberg and Youngberg’s inexplicable testimony to the con-
trary. Youngberg testified that Hardy “came in with a look of
anger and disgust that we were even going through this process.
Just a body language, angry face.” However, Youngberg graded
Hardy “excellent” in categories of “guest service & hospitality
30 I do not rely, in considering alleged antiunion animus on the part
of Respondents West End, on the statement of an unnamed individual to
Baldoquin, on October 27, that, “to his knowledge, this wasn’t going to
be a union shop and that [employees] had to reapply.” Baldoquin did not
attempt to determine the individual’s name and was not asked to describe
his appearance at trial. Accordingly, I am not inclined to find the anon-
ymous individual an agent of Respondents West End. Further, I do not
personality” and “enthusiasm.” Youngberg admitted that such
ratings would not normally be given to an employee who looked
angry and disgusted. I do not find Youngberg credible. Rather,
I find his explanation for the refusal to hire Hardy blatantly pre-
textual.
The decision not to hire Hardy is particularly surprising since
Respondents West End admitted a preference for hiring appli-
cants who presented well in attitude, personality, and enthusi-
asm. Although perhaps somewhat a comparison of apples and
oranges, it is noteworthy that Respondents West End hired sev-
eral servers even though they had consistently “average” ratings
in multiple categories, including the categories of personality
and enthusiasm. Tremble testified that an applicant’s personality
was particularly important for front of the house servers because
they have significant interaction with residents. One would ex-
pect it to be equally important for a front desk concierge em-
ployee, such as Hardy, to display an engaging personality as she
too had significant interaction with residents. Accordingly, it is
telling of Respondents West End’s discriminatory intent that
waitstaff were hired with “average” ratings for personality and
enthusiasm while Hardy was not hired with ratings of “excel-
lent.”
In my opinion, the flagrant pretext of the stated reason for Re-
spondents West End’s refusal to hire Hardy and a degree of dis-
parate treatment is sufficient to establish a prima facie case.30 See
Grane Healthcare Co., 357 NLRB 1412 (2011). There is pretext
and then there is pretext. This is not a case in which something
was odd or a little difficult to understand about an employer’s
explanation for alleged unlawful conduct. Rather, Youngberg’s
rational directly and irreconcilably conflicts with his own appli-
cant evaluation. Youngberg, on the stand, was presented with
the discrepancy and could not begin to articulate an explanation.
Since the stated reason for Respondents West End’s refusal to
hire Hardy is pure pretext, I need not do a mixed-motive analysis
to determine whether Hardy would have been hired regardless of
her union position and activity. Parkview Lounge, LLC, 366
NLRB No. 71 (Apr. 26, 2018); Master Mining, 274 NLRB 1213,
1214 (1985). Accordingly, I find that Respondents West End
violated Section 8(a)(3) and (1) of the Act by refusing to hire
Hardy because of her union position and/or activity.
Although Hardy signed an agreement releasing Respondents
Esplanade from certain damages resulting from a charge filed
with a federal agency, Respondents West End was not a party to
that agreement. If Respondents West End want to assert a release
of damages on the grounds that it is a successor or assign of Re-
spondents Esplanade, it may do so in a compliance proceeding.
Deannie Duncanson
The General Counsel contends that Respondents West End re-
fused to hire Duncanson, along with the other alleged discrimi-
natees, in an attempt to avoid successorship. Respondents West
find the statement overly indicative of animus. Technically, the new em-
ployer was not a union shop until and unless the predecessor employees
applied and were hired in sufficient number to find successorship.
Lastly, Respondent Ultimate managers were not familiar with “union
shops” and the individual’s comment that employees “had to reapply”
suggests, perhaps, a misunderstanding as to what a union shop signifies.
20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
End defended against the allegation as it pertains to Duncanson
on the grounds that she was a supervisor within the meaning of
Section 2(11) and not covered by the Act. The General Counsel
contends that Duncanson was a unit employee who acted largely
as a cook and server. However, Duncanson’s alleged supervi-
sory status with Respondents Esplanade is not germane to the
issue whether Respondents West End violated the Act by refus-
ing to hire her. Respondents West End could refuse to hire an
applicant into a 2(11) position on the basis of that person’s union
activity. The issue is not whether Duncanson held a unit position
with Respondents Esplanade, but whether Respondent West End
unlawfully refused to hire her into a unit position. I find that it
did not.
Duncanson admittedly stated in her resume that she was the
director of food service at the Esplanade Hotel and applied for
the same position with Respondents West End. Respondents
West End was entitled to reject her application for that nonunit
position even if it did so on the basis of her union activity.
I do not find that Respondents West End should have known
to consider Duncanson for hire as a unit employee (e.g., server
or cook). Whether she actually held the position of lead, super-
visor, manager, or director of food service, there is little question
that Duncanson was either the person or one of the people in
charge of the kitchen. She told Tremble during the interview she
could do things other than manage but did not say she would take
a lesser position than the one she claimed to hold previously and
the one she was applying to retain. Duncanson’s resume did not
indicate she had performed unit work (i.e., serving food) since
1998. Under these circumstances, I do not find the evidence suf-
ficient to show that Respondents West End acted unreasonably
or unlawfully in its refusal to consider her for a unit position.
See Diamond Detective Agency, Inc., 339 NLRB 443 (2003)
(employer acted lawfully in refusing to hire employee into for-
mer position he was applying for and not considering him for
employment in other positions that were available).
The General Counsel contends that Respondents West End’s
unlawful intent to bar Duncanson from a unit position can be
gleaned from Tremble’s testimony that he did not hire Duncan-
son because she oversaw an operation in poor condition and re-
ceived a favorable applicant evaluation. According to the Gen-
eral Counsel, Tremble’s testimony was pretextual because Re-
spondents West End hired Levitt even though she was the exec-
utive director of a poorly run facility. However, Respondent
West End presented uncontested evidence that the kitchen and
dining area were in particularly egregious condition and the two
other “kitchen leads” (as identified by Duncanson) were not
hired either. Further, although Duncanson received above-aver-
age ratings on her applicant evaluation, the employment decision
was based on the condition of her department as opposed to her
interview. Accordingly, I do not find Tremble’s rational for re-
fusing to hire Duncanson, on its merits, to be pretextual or indic-
ative of a discriminatory intent.
Based upon the foregoing, I do not find that the General
31 As noted in the fact section, the General Counsel has not argued
that Respondents West End discriminated against employees (other than
Hardy) on the basis of an understanding that some were union members
and others were not. Rather, the General Counsel has contended that
Counsel established a prima facie case that Respondents West
End unlawfully refused to hire Duncanson.
3. Alleged Discriminatees other than Hardy
The General Counsel contends that Respondents West End re-
fused to hire alleged discriminatees other than Hardy in a
doomed attempt to avoid successorship. I disagree and will dis-
miss these refusal-to-hire allegations.
As noted above, Respondents West End hired a super majority
of the predecessor’s employees on December 5. The General
Counsel asserts in a conclusory manner that Respondents West
End attempted to avoid hiring a majority of the predecessor em-
ployees, but miscalculated the total number of employees in the
bargaining unit. The General Counsel has offered no explana-
tion or theory as to whom Respondents West End mistakenly be-
lieved was in/out of the unit and how it would have affected the
count. The General Counsel has not, for example, claimed that
Respondents West End mistakenly believed that 10 predecessor
employees in unit classifications would not be counted toward
the Union’s majority support because they were not dues paying
members of the Union (a position Respondent West End actually
took in connection with the successor analysis). Considering
such a possibility, for the sake of argument, and including those
employees in the complement but not counting them as union
supporters, the Union would still have majority support by a
count of 26 to 18. If Respondents West End also believed the
predecessor’s five nonunit recreation employees would be in-
cluded in the count (perhaps upon the belief that recreational em-
ployees must be included in any appropriate unit) and excluded
as employees who were not dues paying members of the Union,
predecessor employees would still outnumber new employees by
a count of 26 to 23. Accordingly, it does not follow that Re-
spondent mistakenly believed it would avoid successorship by
hiring “nonunion” employees instead of the alleged discrimi-
natees.31
Admittedly, Respondent West End has taken the position in
this proceeding that it did not hire a full complement of unit em-
ployees until after certain BSEs were replaced (by April 20,
2017) or at least separated (March 23 or 24, 2017). Thus, it is
conceivable that Respondents West End set out to orchestrate a
discriminatory plan whereby it sought to avoid succession by re-
fusing to hire the alleged discriminatees, waiting over 90 days
for the DBSWPA retention period to expire, and terminating
enough BSEs to eliminate the Union’s majority support (and
thereby defeat a finding of successorship). Since Respondent
West End actually raised this hail-mary defense against succes-
sorship, I am inclined to address the possibility that its hiring
process was strategically designed in support of it. However, in
my opinion, the General Counsel has a greater evidentiary hill to
climb than in the more typical case where an employer actually
refuses to hire a majority of the predecessor’s employees and can
reasonably expect to avoid succession on that basis.
It is also noteworthy that Respondents West End did not im-
mediately terminate any of the BSEs as soon as it was legally
Respondents West End violated Sec. 8(a)(3) and (1) of the Act by at-
tempting (unsuccessfully) to avoid hiring enough predecessor employees
to be found a successor.
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 21
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
entitled to do so on March 5, 2017 (90 days after the sale). BSEs
were retained through March 22, 2017. One would expect an
employer intent on defeating successorship by firing BSEs to do
so as quickly as possible. Further, the General Counsel has not
alleged or attempted to prove that any of the BSEs were unlaw-
fully terminated. The fact that Respondents West End did not
rush to terminate BSEs, perhaps unlawfully, suggests it was not
seeking to avoid successorship by extralegal means (and makes
the evidentiary hill in favor of a violation even steeper).
As discussed above, I have found that Respondents West End
refused to hire Hardy because she was known to be the union
steward and participated in contract negotiations. Respondents
West End’s treatment of Hardy does suggest that it preferred to
avoid hiring proactive union supporters and would prefer to
avoid dealing with the Union as a bargaining representative of
unit employees. The remainder of the General Counsel’s argu-
ments in favor of a violation are far less compelling.
The General Counsel contends that the failure of interviewers
to complete an applicant review form for each applicant warrants
an inference of discrimination. I do not find it particularly sus-
picious that interviewers used the form as convenient during a
day when they were interviewing and hiring a great many appli-
cants. The interviewers were not required by upper management
or human resources to use the form for each employee. Rather,
the form was used in a discretionary manner for guidance. Fur-
ther, the evidence does not indicate that the forms went strategi-
cally missing for certain employees, such as the alleged discrim-
inatees. The record does not contain applicant evaluations for
some of the alleged discriminatees, but does contain applicant
evaluations for other alleged discriminatees, including Hardy. If
Respondents West End were inclined to artificially lower the
rankings or “misplace” the evaluations of alleged discriminatees,
we probably would not be in possession of a stellar applicant
evaluation for, of all applicants, the known steward. Although
the General Counsel is correct that interviewers were not entirely
consistent in rigorously using the applicant evaluation form for
every applicant, Respondents West End’s failure to do so was
not the type of inconsistency which necessarily suggested a dis-
criminatory intent.
Likewise, I do not find it overly suspicious that (1) the inter-
views only lasted 5 to 15 minutes, (2) interviewers did not have
access to employee personnel files, and/or (3) employee refer-
ences were not rigorously checked. It is perhaps somewhat sur-
prising that interviewers did not spend more time with each ap-
plicant given that Respondents West End considered attitude and
personality the most important qualification for certain positions
(as opposed to, for example, years of service with the company).
However, some applicants were interviewed more than once and
applicants were interviewed in large numbers. Respondents
West End was also aware that in-house applicants were suffi-
ciently qualified to maintain employment with the predecessor.
I do not think it self-evident that longer interviews were neces-
sarily warranted or practical under the circumstances. With re-
gard to personnel files, interviewers testified that Respondents
Esplanade did not give them access to those documents. Trem-
ble noted that interviewers do not normally have access to per-
sonnel files when hiring employees and employees were being
interviewed “without prejudice.” Senken did not consider the
absence of personnel files to be a particularly significant disad-
vantage as such documents tend to be subjective. I am not
shocked that Respondents West End failed to make a greater ef-
fort to obtain and pore through personnel files of employees who
were currently working at the Esplanade Hotel and had not been
discharged. I am equally unimpressed, as evidence of animus,
by Anderson’s testimony that he was unaware whether the inter-
viewers checked the references of newly hired employees who
never worked at the Esplanade Hotel. Managers who conducted
the interviews were called by Respondent West End to testify
and were not asked whether they contacted references. Ander-
son explained that ideally in a typical hiring situation where time
allows, it is good practice to check references even though such
references are rarely reliable. However, Anderson also testified
that this was not a typical situation.
The General Counsel did not specifically assert how these dis-
crepancies in the hiring process actually work into its theory of
the case. It could be argued that the corners Respondents West
End cut in hiring employees suggest it would have retained all
Respondents Esplanade’s employees if it were not for a strategy
of union avoidance. However, it is at least equally plausible that
Respondents West End were pressed to implement a new opera-
tion, hire a large number of employees, and already knew that
most employees successfully maintained employment at the Es-
planade Hotel without being fired. I can understand an employer
wanting to conduct a fairly brief interview of employees to en-
sure they were not hiring someone who presented particularly
poorly, without scouring personnel records or having in depth
discussions about each employee with their former managers and
supervisors. It is somewhat suspicious that Respondents West
End hired new employees without conducting extensive inter-
viewers of those applicants or (perhaps) checking their refer-
ences, but this evidence was not aggressively pursued and, even
if true, would be far from a smoking gun under the circum-
stances.
The General Counsel asserts that alleged discriminatees who
received average ratings on their applicant evaluations should
have been hired over new applicants, and Respondent’s West
End’s failure to offer more specific reasons for its decision not
to hire the alleged discriminatees to do so implies animus. Trem-
ble testified that it was typical for Respondents West End to hire
applicants with ratings of “average” and (excluding Hardy and
Duncanson) alleged discriminatees received certain category
rankings of “average” or, in limited circumstances, “good.” Fur-
ther, Kayani testified that Respondents West End preferred to
keep predecessor employees if possible because it was less time
consuming and costly than replacing them. Thus, to the extent
employees were equivalent and received ratings of “average,”
we would expect incumbent employees to be hired over new em-
ployees.
The problem with the General Counsel’s argument in this re-
gard is that it relies on comparisons between employees who
were both employed by the predecessor and/or employees who
were not equivalent. The General Counsel notes that predeces-
sor employee Nichols was hired with “average” ratings while al-
leged discriminatee Terrier was not hired with a rating of “good”
22 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the category of “guest service & hospitality personality.”32
However, Nichols and Terrier were both former employees of
the predecessor and selecting one over the other would not ad-
versely impact Respondents West End with regard to successor-
ship. Further, Nichols was a server while Terrier was a cook,
and their applicant evaluations appear to have been completed
by two different people (with different handwriting). Thus, ap-
plicants Nichols and Terrier were not in direct competition with
each other and two different interviewers could have had two
different concepts of the ratings.
The General Counsel noted in its brief that new employee Jose
Cabrera, a cook (like Terrier), was hired even though he received
ratings of “average” in certain categories. However, Cabrera,
like Terrier, received a rating of “good” in the category of “guest
service & hospitality personality.” More importantly, Cabrera
received a rating of “good” in seven other categories in which
Terrier was not rated. Thus, Cabrera received what appears to
be a better applicant evaluation than Terrier.
Of the new employees, other than Cabrera, the General Coun-
sel identified server Williams and utility/dishwasher Batista as
applicants who should not have been hired over predecessor em-
ployees. I do not agree. Williams received rankings of good in
the important categories of “guest service & hospitality person-
ality” and “enthusiasm,” as well seven other categories. As such,
her applicant evaluation was significantly better than each of the
alleged discriminatees who held the position of server. Batista
was a utility aide/dishwasher, and the evidence does not indicate
she was hired over any alleged discriminatee who held the same
position. In this case, the General Counsel’s arguments regard-
ing disparate treatment fail because they are based on false
equivalencies.
It is true that Respondent West End did not have managers
testify to the specific reasons why each alleged discriminatee
was not hired and the record does not contain applicant evalua-
tions for each one. I would have liked to hear such testimony
and we are, therefore, left with something of a vacuum that might
be filled with an inference of animus. However, unlike the Gen-
eral Counsel, as discussed above, I find the applicant evaluations
to be largely consistent with a legal hiring process, and these in-
terviews were conducted in mass over a year before the trial.
Meanwhile, the General Counsel did not call any of the alleged
discriminatees to contest or otherwise cast doubt upon the ratings
contained in their applicant evaluations. I do not find Respond-
ents West End’s failure to offer more specific reasons for its de-
cision not to hire the alleged discriminatees, among other evi-
dence presented by the General Counsel, sufficient to support a
prima facie case.
The General Counsel relies heavily on Lemay Caring Ctr.,
280 NLRB 60 (1986), but that case is distinguishable. First and
foremost, the employer in Lemay Caring actually hired a minor-
ity of the predecessor’s employees. Second, the employer in
Lemay Caring made certain unlawful 8(a)(1) statements that
were far more telling of its goal to avoid successorship than any
evidence presented here by the General Counsel. Third, the
32 Terrier’s applicant evaluation was only partially complete. He re-
ceived a rating of “good” for “guest service & hospitality personality,”
but no ratings for other categories.
record in Lemay Caring contained evidence that employees were
actually told they were not hired because of a manager’s “gut
feelings” and other criteria that were particularly nebulous.
Ultimately, although a refusal-to-hire violation was estab-
lished with regard to Hardy, this and other marginal evidence of
animus does not go far enough to extend that violation to the
other allege discriminatees. I will not call it entirely far-fetched
to believe that Respondents West End expected to avoid succes-
sorship by refusing to hire the alleged discriminatees and then
discharging enough BSEs to undermine the Union’s majority
(since Respondents West End made this argument with regard to
succession). However, the General Counsel did not actually ar-
ticulate this theory and inferring such a motive is more difficult
to accept than an inference of the unlawful motive at issue in
more typical refusal-to-hire cases, such as Lemay Caring. In my
opinion, this case involves a heightened evidentiary burden,
which the General Counsel has failed to satisfy.
Accordingly, based upon the foregoing, I do not find that Re-
spondents West End violated Section 8(a)(3) and (1) of the Act
by failing to hire alleged discriminatees other than Hardy. I will,
therefore, dismiss those allegations.
REMEDY
Having found that Respondents Esplanade and Respondents
West End have engaged in certain unfair labor practices, I find
that they must be ordered to cease and desist therefrom and to
take certain affirmative action designed to effectuate the policies
of the Act.
The remedies of instatement and backpay are appropriate for
discriminatory refusals-to-hire, and I will order Respondents
West End to provide those remedies with regard to Hardy. FES
(A Division of Thermo Power), 331 NLRB 9 (2000).
Backpay for the unlawful refusal-to-hire Hardy shall be cal-
culated in accordance with F.W. Woolworth Co., 90 NLRB 289
(1950), with interest as described in New Horizons, 283 NLRB
1173 (1987), compounded daily as required in Kentucky River
Medical Center, 356 NLRB 6 (2010). In accordance with King
Soopers, Inc., 364 NLRB No. 93 (2016), the Respondents West
End shall compensate Hardy, who was unlawfully denied em-
ployment, for search-for-work and interim employment ex-
penses regardless of whether those expenses exceed her earn-
ings. Search-for-work and interim employment expenses shall
be calculated separately from taxable net backpay, with interest
at the rate prescribed in New Horizons, supra., compounded daily
as prescribed in Kentucky River Medical Center, supra.
In accordance with Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB 101 (2014), backpay computations shall
compensate Hardy for any adverse tax consequences of receiv-
ing lump sum backpay awards, and, in accordance with Ad-
voServ of New Jersey, Inc., 363 NLRB No. 143 (2016), Respond-
ents West End shall, within 21 days of the date the amount of
backpay is fixed either by agreement or Board order, file with
the Regional Director for Region 2 a report allocating backpay
to the appropriate calendar year. The Regional Director will then
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 23
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
assume responsibility for transmission of the report to the Social
Security Administration at the appropriate time and in the appro-
priate manner.
Respondents West End will be ordered to recognize and bar-
gain with the Union as the bargaining representative of unit em-
ployees.
Respondents Esplanade will be ordered to promptly provide
the information requested by the Union on October 27.
Respondents West End will be ordered to post the notice at-
tached hereto as “Appendix A” and Respondents Esplanade will
be ordered to post the notice attached hereto as “Appendix B.”
CONCLUSIONS OF LAW
1. Respondents West End and Respondents Esplanade are
employers engaged in commerce within the meaning of Sec.
2(2), (6), and (7) of the Act.
2. United Food & Commercial Workers Union, Local 2013,
is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondents West End violated Section 8(a)(3) and (1) of
the Act by refusing to hire Union shop steward Trinidad Hardy
because of her union position and/or activity.
4. The following unit is appropriate for purposes of collective
bargaining:
[A]ll of its full-time and part-time employees, with respect to
wages, hours and conditions of employment, excluding execu-
tives, supervisors and guards as defined in the Labor Manage-
ment Relations Act as amended, and agrees to deal collectively
only with this Union for and on behalf of such employees. Full-
time employees are employees employed on a steady basis.
Part-time employees who are call in employees and work as
needed.
5. Respondents West End Violated Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the Union as
the bargaining representative of unit employees.
6. Respondents Esplanade violated Section 8(a)(5) and (1) of
the Act by failing and refusing to provide the Union with infor-
mation it requested on October 27, 2016.
7. The violations found are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
8. Respondent has not otherwise violated the Act.
ORDER33
1. The Respondents shall CEASE AND DESIST from engag-
ing in the following conduct:
A. Respondents West End, a joint employer, consisting of 305
West End Holding, LLC d/b/a 305 West End Avenue Operating,
LLC, New York and Ultimate Care Management Assisted Liv-
ing Management, LLC, a Division of the Engel Burman Group
d/b/a Ultimate Care Management, LLC, of Bohemia, New York,
their offers, agents, successors, and assigns, shall cease and de-
sist from
33 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
(1) Refusing to hire employees because of their union position
and/or activity.
(2) Failing and refusing to recognize and bargain in good-faith
with the United Food & Commercial Workers Union, Local
2013 (Union), as the exclusive bargaining representative of
employees in the following bargaining unit:
(A)ll of its full-time and part-time employees, with re-
spect to wages, hours and conditions of employment,
excluding executives, supervisors and guards as defined
in the Labor Management Relations Act as amended,
and agrees to deal collectively only with this Union for
and on behalf of such employees. Full-time employees
are employees employed on a steady basis. Part-time
employees who are call in employees and work as
needed.
(3) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
B. Respondents Esplanade, a joint employer, consisting of
County Agency, Inc. of Brooklyn, New York, and Esplanade
Partners Ltd. d/b/a Esplanade Venture Partnership d/b/a The Es-
planade Hotel of New York, New York, their offers, agents, suc-
cessors, and assigns, shall cease and desist from
(1) Failing or refusing to provide information to the Union that
is relevant and necessary to perform its duties as the exclusive
collective-bargaining representative of Unit employees em-
ployed at the New York, New York facility involved in these
proceedings.
(2) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. The Respondents shall take the following AFFIRMATIVE
ACTION necessary to effectuate the policies of the Act.
A. Respondents West End shall
1. Recognize and bargain in good-faith with the Union as the
exclusive collective-bargaining representative of Unit employ-
ees.
2. Within 14 days from the date of this Order, offer Trinidad
Hardy instatement to the position for which she applied, or, if
such a position no longer exists, to a substantially equivalent po-
sition, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
3. Make Hardy whole for any loss of wages or benefits suf-
fered as a result of the unlawful refusal to hire her in the manner
set forth in the remedy section of this decision.
4. Compensate Hardy for search-for-work and interim em-
ployment expenses following Respondents West End’s refusal
to hire her regardless of whether those expenses exceed her in-
terim earnings.
5. Compensate Hardy for the adverse tax consequences, if
any, of receiving a lump-sum backpay award.
6. Within 14 days from the date of this Order, remove from
24 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
its files any reference to its unlawful refusal to hire Hardy, and
within 3 days thereafter, notify Hardy in writing that this has
been done and that the refusal to hire her will not be used against
her in any way.
7. Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board or
its agents, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records,
including an electronic copy of such records if stored in elec-
tronic form, necessary to analyze the amount of backpay due un-
der the terms of this Order.
8. Within 14 days after service by the Region, post at its fa-
cility in New York, New York, the facility involved in these pro-
ceedings, copies of the attached notice marked “Appendix A.”34
Copies of the notice, on forms provided by the Regional Director
for Region 2, after being signed by Respondents West End’s au-
thorized representative, shall be posted by Respondents West
End and maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other electronic
means, if Respondents West End customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondents West End to ensure that the notices are not
altered, defaced, or covered by any other material. If Respond-
ents West End has gone out of business or closed the facility in-
volved in these proceedings, it shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by Respondents West End at any
time since December 5, 2016.
9. Within 21 days after service by the Region, file with the
Regional Director for Region 2 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
B. Respondents Esplanade shall
(a) Promptly provide to the Union with information it re-
quested on October 27, 2016.
(b) Within 14 days after service by the Region, post at its fa-
cility in New York, New York, the facility involved in these pro-
ceedings, copies of the attached notice marked “Appendix B.”35
Copies of the notice, on forms provided by the Regional Director
for Region 2, after being signed by Respondents Esplanade’s au-
thorized representative, shall be posted Respondents Esplanade
and maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic means, if
Respondents Esplanade customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken by
34 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 La-
bor Relations Board.”
Respondents Esplanade to ensure that the notices are not altered,
defaced, or covered by any other material. If Respondents Espla-
nade has gone out of business, closed or sold the facility involved
in these proceedings, it shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current employees and former
employees employed by the Respondents Esplanade at any time
since October 27, 2016.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondents have taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges that the Respondent unlawfully refused-to-hire em-
ployees other than Hardy, or other allegations not specifically
found herein.
Dated at Washington, DC. February 7, 2019
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT refuse to hire you or otherwise discriminate
against you because you hold a union position or engage in union
activities.
WE WILL NOT fail and refuse to recognize and bargain with the
United Food & Commercial Workers Union, Local 2013 (Union)
as the representative for purposes of collective-bargaining of em-
ployees in the following bargaining unit:
All of its full-time and part-time employees, with respect to
wages, hours and conditions of employment, excluding execu-
tives, supervisors and guards as defined in the Labor Manage-
ment Relations Act as amended, and agrees to deal collectively
only with this Union for and on behalf of such employees. Full-
time employees are employees employed on a steady basis.
Part-time employees who are call in employees and work as
needed.
35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional 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.”
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 25
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL recognize and bargain in good-faith with the Union
as the exclusive bargaining representative of employees in the
bargaining unit.
WE WILL, within 14 days from the date of this Order, offer
instatement to Trinidad Hardy for the job she applied for, or, if
that job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privileges
previously enjoyed.
WE WILL make Hardy whole for any loss of earnings and other
benefits resulting from our refusal to hire her, less any net interim
earnings, plus interest, and WE WILL also make her whole for rea-
sonable search-for-work and interim employment expenses, plus
interest.
WE WILL compensate Hardy for the adverse tax consequences,
if any, of receiving a lump-sum backpay award, and WE WILL file
with the Regional Director for Region 2, within 21 days of the
date the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to the appro-
priate calendar.
WE WILL, within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful refusal to
hire Hardy, and WE WILL, within 3 days thereafter, notify her in
writing that this has been done and that the refusal-to-hire will
not be used against her in any way.
305 WEST END HOLDING, LLC D/B/A 305 WEST END
AVENUE OPERATING, LLC AND ULTIMATE CARE
MANAGEMENT ASSISTED LIVING MANAGEMENT, LLC,
A DIVISION OF THE ENGEL BURMAN GROUP D/B/A
ULTIMATE CARE MANAGEMENT, LLC
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/2–CA–188405 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT fail or refuse to provide information to the
United Food and Commercial Workers Union, Local 342, AFL–
CIO (Union), that is relevant and necessary to perform its duties
as the exclusive collective-bargaining representative of employ-
ees in the following bargaining unit:
All of its full-time and part-time employees, with respect to
wages, hours and conditions of employment, excluding execu-
tives, supervisors and guards as defined in the Labor Manage-
ment Relations Act as amended, and agrees to deal collectively
only with this Union for and on behalf of such employees. Full-
time employees are employees employed on a steady basis.
Part-time employees who are call in employees and work as
needed.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights listed above.
WE WILL promptly provide to the Union with information it
requested on October 27, 2016.
COUNTY AGENCY, INC. AND ESPLANADE PARTNERS
LTD. D/B/A ESPLANADE VENTURE PARTNERSHIP D/B/A
THE ESPLANADE HOTEL
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/2–CA–188405 or by using the QR code be-
low. Alternatively, you can obtain a copy of the decision from
the Executive Secretary, National Labor Relations Board, 1015
Half Street, S.E., Washington, D.C. 20570, or by calling (202)
273–1940.
26 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
LIST OF PERSONNEL
Predecessor Employees P
New Employees N
Predecessor Supervisor SP
New Supervisor SN
Predecessor Recreation Employee RP
Initial Complement Status BSE Hired Seperated
Aguino, Manuel P 12/5/2016
Alexander, Francisca SN 12/5/2016
Anselmo, Fernando P BSE 1/5/2016
Baez, Melanie SN 4/6/2017
Batista Rodriguez, Agustin B N 12/5/2016
Battick, James W P BSE 12/5/2016
Bellamy, Michelle P 12/5/2016
Bicic, Dzevat SN 12/5/2016
Blocker, Otto P 12/5/2016 12/12/2016
Bradford, Ida P 12/5/2016
Breaker, Michael P 12/5/2016
Brennan, Annis RP 12/5/2016
Brown, Leslie E SP 12/5/2016
Burnham, Lorraine A P 12/5/2016
Cabrera, Jose N 12/6/2016 12/7/2016
Caplan, Shelley SP 12/20/2016
Cappelli, Dawn P 12/5/2016
Campbell, Norman P 12/5/2016
Celisca, Berne SP 11/30/2016
Conway, Kelsey A N 12/5/2016 12/11/2016
De La Cruz, Milda P BSE 12/5/2016 3/1/2017
DelVillar, Elsie N 12/8/2016
Embry, Nicole RP 12/5/2016 4/11/2017
Esposito, Felicetta Pia P BSE 12/5/2016 3/24/2017
Etienne, Albert SP 12/5/2016
Fajar, Miguelina P BSE 12/5/2016 3/23/2017
Fantalina, Rimma P BSE 12/5/2016 3/23/2017
Fernandez, Carlos P BSE 12/5/2016
Fernandez, Clara RP 12/5/2016
Figueroa, Don Frank P BSE 12/5/2016 3/24/2017
Franklin, Jess RP 12/5/2016
Garcia, Danitza P 12/5/2016
COUNTY AGENCY INC. AND ESPLANADE PARTNERS LTD. D/B/A ESPLANADE VENTURE 27
PARTNERSHIP D/B/A THE ESPLANADE HOTEL
Gomez, Danilda A P BSE 12/5/2016 3/23/2017
Grant, Charlene Benymon P 12/5/2016
Harpal, Sudeshkumar P BSE 12/5/2016
Harrison, Stephen P 12/5/2016
Johnson, James P BSE 12/5/2016 3/23/207
Keller, Almedia RP 12/5/2016
Knight, Gregory P 12/5/2016
Korzep, Stanislaw P BSE 12/5/2016
Leon-Heras, Claudio P 12/5/2016
Levin, Michael N 12/5/2016 12/15/2016
Lind, Jonathan E N 12/5/2016 12/28/2016
Loach, Carlis R P 12/5/2016
Londea, William E P 12/5/2016
Martinez, Flor P 12/5/2016
Nartowicz, Helena P 12/5/2016 12/15/2018
Nicholls, Barbara P 12/5/2016
Oconnell, Ruth SP 12/5/2016
Peters, Hayden R P 12/5/2016
Rivera, Carmelo P 12/5/2016
Rodriguez, Cynthia P 12/5/2016
Rybicka, Sylwia P BSE 12/5/2016 1/24/2017
Salwen, Marcy SP 12/5/2016
Singer, Edwin SP 12/5/2016
Supliguicha, Maria P BSE 12/5/2016 3/23/2017
Vadi, Taylor N 12/8/2016
Valle, Lazaro P BSE 12/5/2016 1/16/2017
Williams, Deandra N 12/7/2016 4/4/2016
New Hires Retained After March 24, 2017
Adolphe Desrosiers, Marie N 1/18/2017
Bogen, Tyler N
Blackwood, Kevin N 1/5/2017
Clarke, Viviene C N 3/16/20167
Currey, Salaambia N N 12/28/20116
Dessources, Lenz N 1/4/2017
Durand, Fritz N 3/1/2017
Francillon, Kettia N 2/24/2017 4/6/2017
Joachim Desrosiers, Sabrinia N 3/1/2017
Joseph, Jean R N 1/4/2017
Leveque Philogene, Claudicie N 3/1/2017
Loggins, Robert E N 2/24/2017
28 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Maxwell, Clarence A N 2/24/2017
Merced, Raymond L N 3/22/2017
Nooks, Georgia S N 2/12/2017
Pagan, Mercedes N 12/19/2016
Ramos, Omar N 3/1/2017
Rivera, Ismael N 1/16/2017
Rosario, Natash N 12/15/2017
Simmons, Gregory S N 1/5/2017
Thomas, Stephanie N N 1/12/2016
Walters, Tasha N 12/28/2016
New Hires not Retained until March 24, 2017
Frost, Norman C N 12/28/2016 2/3/2017
Gonzalez, Julio R N 12/12/2016 12/25/2016
Marie, Javier N 2/15/2017 2/17/2017
Perry, Shatasia N 12/21/2016 1/26/2017
Serrano, Sean M N 12/15/2016 2/5/2017
Tavira Martinez, Marco A N 12/12/2016 12/14/2017
Viruet, Carmenlydia M N 12/12/2016 2/3/2017
December 5, 2016
Initial Complement
P
36
N
8
March 6, 2017
New Hires Severed 4
New Hires
Predecessor Employees Severed 5
20
Total 31 24
March 25, 2017
New Hires Severed
New Hires
2
Predecessor Employees Severed 7
Total 24 26