Yonkers Associates

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 108 (N.L.R.B. 1995)

108
319 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent excepts, among other things, to the judge’s ‘‘dis-
regard’’ of Vice President Israel Roizman’s testimony that it was the
Respondent’s practice to retain an independent contractor for each
new property it acquired rather than to hire permanent maintenance
employees. However, the judge expressly considered this testimony
and discredited it. Further, the judge found Roizman to be a gen-
erally untrustworthy witness and pointed out a number of discrep-
ancies in Roizman’s testimony on this and other matters. In view of
the credited testimony establishing the Respondent’s discriminatory
motive for refusing to hire the employees, the judge’s discrediting
Roizman generally, and the fact that Roizman’s testimony about the
Respondent’s practice though undisputed is also uncorroborated, we
find that the Respondent has failed to rebut the General Counsel’s
evidence of discrimination, and we agree with the judge that the Re-
spondent violated the Act. We note that the judge found that the Re-
spondent’s discrimination was a violation of Sec. 8(a)(1) alone. Inas-
much as the complaint alleges the conduct to be a violation of Sec.
8(a)(3), and given that the judge analyzed the relevant evidence
under Wright Line, 251 NLRB 1083 (1980), we find that the Re-
spondent discriminatorily refused to hire the employees in violation
of Sec. 8(a)(3), and derivatively of Sec. 8(a)(1).
2 The judge inadvertently states in par. 4 of his Conclusions of
Law that the Respondent refused to hire Francisco Machado, Jose
Borbon, and Ariel Rivera on December 29, 1994, when the record
and the balance of his decision clearly establish that the year was
1993. We hereby correct the error.
3 The judge failed to include a provision in the recommended
Order that the Respondent pay Machado, Borbon, and Rivera for any
losses they suffered as a result of its unlawful unilateral changes in
their wages, hours, and terms and conditions of employment, with
interest. We have modified the recommended Order to include such
a provision, to include the Board’s standard expunction, record-keep-
ing, and notification provisions, and to require the posting of a sub-
stitute notice to employees.
4 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
Yonkers Associates, 94 L. P. and Local 32E, Service
Employees International Union, AFL–CIO.
Cases 2–CA–27156 and 2–CA–27564
September 29, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On February 24, 1995, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed a cross-exception and brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,2
and to adopt the recommended Order as modified and
set forth in full below.3
ORDER
The National Labor Relations Board orders that the
Respondent, Yonkers Associates, 94 L.P., Yonkers,
New York, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Refusing to hire employees because of their
membership in or activities on behalf of Local 32E,
Service Employees International Union, AFL–CIO, or
any other labor organization.
(b) Unilaterally changing the wages, hours, and
terms and conditions of employment of its employees
without notifying and bargaining with the Union.
(c) Refusing to recognize and bargain collectively
with the Union as the exclusive bargaining representa-
tive of its employees employed at the Highland facility
in the appropriate unit set forth below:
All building service employees employed at the
Highland Avenue, Yonkers, New York facility.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Francisco Machado, Jose Borbon, and
Ariel Rivera whole for any losses they suffered as a
result of the Respondent’s unlawful refusal to hire
them and as a result of the unlawful unilateral changes
in their wages, hours, and terms and conditions of em-
ployment, with interest, in the manner set forth in the
remedy section of the judge’s decision.
(b) Remove from its files any reference to the un-
lawful refusals to hire and notify the employees in
writing that this has been done and that these unlawful
actions will not be used against them in any way.
(c) On request of the Union, rescind the unlawful
unilateral changes.
(d) Recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of all the employees employed at the Highland
facility, in the unit described above and, if an agree-
ment is reached, embody the understanding in a signed
agreement.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying all
records necessary to analyze and compute the amount
of backpay and reimbursement that may be owed to
the employees pursuant to paragraph 2(a) of this
Order.
(f) Post at its Highland Avenue facility copies of the
attached notice marked ‘‘Appendix.’’4 Copies of the
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109YONKERS ASSOCIATES, 94 L. P.
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
notice, on forms provided by the Regional Director for
Region 2, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director within 20 days
from the date of this Order what steps the Respondent
has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to hire employees because of
their membership in or activities on behalf of a union.
WE WILL NOT refuse to recognize and bargain with
Local 32E, Service Employees International Union,
AFL–CIO as the exclusive bargaining representative of
our employees employed at the Highland Avenue facil-
ity in the appropriate unit set forth below:
All building service employees employed at the
7383 Highland Avenue, Yonkers, New York facil-
ity.
WE WILL NOT unilaterally change the wages, hours,
and terms and conditions of employment of our em-
ployees without notifying and bargaining with the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce any of our employees in the
exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL make Francisco Machado, Jose Borbon,
and Ariel Rivera whole for any losses they suffered as
a result of our unlawful refusal to hire them and as a
result of our unlawful unilateral changes in their
wages, hours, and terms and conditions of employ-
ment, with interest.
WE WILL notify each of them that we have removed
from our files any reference to our unlawful refusals
to hire and that these unlawful actions will not be used
against them in any way.
WE WILL, on request, rescind the unlawful unilateral
changes that we made.
WE WILL recognize and, on request, bargain with the
Union as the exclusive collective-bargaining represent-
ative of the employees in the unit described above and,
if an agreement is reached, embody the understanding
in a signed agreement.
YONKERS ASSOCIATES, 94 L.P.
Gregory B. Davis, Esq., for the General Counsel.
Joel E. Cohen, Esq. (Mudge, Rose, Guthrie, Alexander &
Ferdon), of New York, New York, for the Respondent.
Scott P. Trivella, Esq., of Bronx, New York, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me in New York, New York, on October
11 and 12, 1994.
On February 1, 1994, Local 32E, Service Employees Inter-
national Union, AFL–CIO (the Union) filed a charge against
Yonkers Associates, 94 L.P. (Respondent) alleging a viola-
tion of Section 8(a)(1) and (3) of the Act. On June 24, 1994,
the Union filed another charge against Respondent alleging
a violation of Section 8(a)(1) and (5) of the Act. On July 29,
1994, a consolidated complaint issued alleging violations of
Section 8(a)(1), (3), and (5) of the Act. The thrust of the
complaint is that Respondent refused to recognize and bar-
gain with the Union, refused to hire employees who were
members of the Union, and committed various independent
acts in violation of Section 8(a)(1) of the Act.
Respondent is a domestic partnership with an office and
place of business in Yonkers, New York, where it is engaged
in the ownership, operation, and rental of apartment build-
ings, including an apartment building located at 7383 High-
land Avenue, Yonkers, New York. Respondent, in the oper-
ation of its business, annually derives income in excess of
$500,000. Respondent, in the course of its operation of its
business, annually purchases goods and materials valued at
in excess of $5000 from suppliers located in the State of
New York, who receive such goods and materials directly
from points located outside the State of New York. I con-
clude that Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
It is admitted, and I conclude that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
Background
On November 30, 1992, Arco Management Corp. (Arco)
signed a contract with Messiah Development Co. Inc. (Mes-
siah) to manage the Highland Avenue apartment building in
issue in this case. Arco, as an agent for Messiah entered into
a collective-bargaining agreement with the Union sometime
in January–March 1993, covering a unit of maintenance em-
ployees working at the Highland facility. The unit numbered
three employees.
On August 20, the United States Department of Housing
and Urban Development (HUD), by its foreclosure commis-
sioner, conducted a foreclosure sale of the Highland facility.
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110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 I find Langan to be a credible witness. It was immediately clear
that Arco was not going to manage the Highland facility for Re-
spondent, and at that point I conclude Langan became essentially a
neutral witness. I was especially impressed with his demeanor. He
displayed an excellent recollection of the facts and was most respon-
sive during both direct and cross-examination. Moreover, he was
corroborated in the critical area as to why Respondent did not hire
the unit employees working at the Highland facility by other credible
witnesses, described below.
2 On cross-examination, Respondent’s counsel noted that Langans
affidavit stated: ‘‘Roizman stated he did not want (the Union be-
cause he did not want) to absorb any backpay money or liabilities
because of the union.’’ Respondent counsel contended that the
bracketed portion of the statement appeared to be inserted after the
affidavit was taken and questioned Langan as to this. Langan, not-
withstanding persistent cross-examination on this issue, credibly tes-
tified that it was his addition, and although it might be redundant,
expressed accurately what Roizman had told him. After due consid-
eration of such alleged inconsistancy, I conclude that Langan’s testi-
mony is essentially consistent with his affidavit.
3 I conclude that Trivella is a credible witness. Trivella, notwith-
standing extensive cross-examination, gave consistent, and I would
conclude logical, testimony. I was impressed with his demeanor. It
is obvious that the only reason for such a telephone call, the day
before Respondent was to take title, was to see if Respondent would
assume the Union’s contract, and, in the absence of such assumption,
to at the very least demand recognition. Moreover, Trivella’s testi-
mony that Roizman told him that he did not want the Union and
that the building would be a nonunion building was corroborated by
the credible testimony of Langan and Machado.
Respondent was the highest bidder and purchased the build-
ing on December 29, 1993.
Scott Langan, vice president of Arco, credibly testified1
that in September 1993 Israel Roizman, vice president of Re-
spondent, called Arco and informed Langan that he was the
successful bidder at the HUD foreclosure sale and that as the
new owner would not require Arco’s management services.
Sometime in the middle of December Roizman called
Langan and asked him to terminate the unit employees since
he was taking title to the Highland facility on December 29.
Langan told Roizman that the three unit employees employed
at that facility were excellent workers and suggested that Re-
spondent hire them. The employees were employed by Re-
spondent. Arco was merely the managing agent for Messiah.
Langan credibly testified that Roizman replied that he would
not hire the employees because he did not want the Union.
Roizman further explained that an additional concern with
hiring the union employees presently working at the High-
land facility was that he did not want to assume the unpaid
welfare and pension payments owed the Union by the prede-
cessor, Messiah.2 Roizman denied making the statements at-
tributed to him by Langan. I credit Langan’s testimony. As
set forth above, I find Langan to be a credible witness. As
set forth in detail below, I find Roizman to be an incredible
witness.
Francisco Machado, one of the three unit employees em-
ployed at the Highland facility credibly testified that on De-
cember 28, the day before Respondent took title to the High-
land facility, Roizman called him into his office and told him
that he was taking title to the building the following day and
that he would not continue his employ beginning on Decem-
ber 29. Roizman continued stating that he ‘‘wasn’t going to
carry nobody’s baggage.’’ I conclude that this statement was
a reference to any potential union liability associated with
the continued employment of union employees. Roizman tes-
tified that he did make the statement attributed to him by
Machado concerning ‘‘baggage,’’ but testified that he didn’t
know why Arco was not telling the unit employees that he
was not going to continue their employment, and he didn’t
want to carry Arco’s baggage for such notification. I do not
credit Roizman’s testimony in this regard. As set forth
below, I did not find Roizman to be an incredible witness.
On December 28, Union Attorney Scott Trivella called
Roizman. Trivella credibly testified that he informed Roiz-
man that the Union represented the employees maintaining
the Highland facility, that the Union had a collective-bargain-
ing agreement with Messiah, the predecessor employer, and
demanded recognition on behalf of the employees. Roizman
told Trivella that he had terminated his contract with Arco
and would not be entering into any new contractual agree-
ment. Trivella told Roizman that he was concerned with the
unit employees working at the building at the building and
not the maintenance or service contractors. Trivella credibly
testified that in response to his position Roizman replied that
‘‘it was a non-union building and he did not want any union
there.’’3
Roizman incredibly testified that when Trivella demanded
recognition and reminded Roizman that the Highland facility
was a union building Roizman referred Trivella to his attor-
ney. I have no doubt that Roizman made this statement at
some point in his conversation with Trivella, but I conclude
that he also made the statement about the Highland facility
being a nonunion building, and that he didn’t want any union
there. As set forth below, I conclude that Roizman is not a
credible witness.
As of January 2, 1994, Respondent had failed to employ
the above three unit employees. On January 3, 1994, the
Union picketed. The pickets included the three unit employ-
ees.
On or about March 1994, Respondent, on the advice of its
attorney, offered reinstatement of the three former unit em-
ployees who accepted such offer and returned to work.
The credible and undisputed testimony of employees
Machado and Ariel Rivera establish that Respondent changed
the work hours the employees enjoyed at Messiah from 8
a.m. through 4 p.m. to 8:30 a.m. through 5:30 p.m. and that
Respondent no longer paid them for their lunch hour. The
employees were also informed by Respondent that from now
on they would only receive 6 sick days instead of the 10 sick
days they received with Messiah. In addition Respondent
changed the number of paid holidays from 13 to none. In ad-
dition the employees would have been entitled to receive up
to 3 weeks paid vacation, depending upon their length of
service. Respondent instituted a single week vacation with a
new limitation; that the employees would not get paid for va-
cation time they did not use. In addition, the employees were
given additional work responsibilities over those they had
while working for Messiah.
Trivella credibly, and without contradiction, testified that
the Union was not notified as to the hiring of the above unit
employees nor of the changes in wages, hours, and condi-
tions of employment, described above.
By letters dated March and June 10, 1994, the Union de-
manded recognition for the unit employees and requested
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111YONKERS ASSOCIATES, 94 L. P.
bargaining. Respondent admittedly has continued to refuse to
recognize and bargain with the Union concerning the wages,
hours, and other conditions of employment.
Credibility of Roizman
I found Roizman to be an incredible witness. I was
unimpressed with his demeanor. He was most responsive, de-
tailed, and articulate during his direct testimony as contrasted
with his often vague, evasive, and argumentative testimony
during cross-examination, especially during cross-examina-
tion by counsel for the Union. At other times Roizman gave
contradictory testimony. For example, Roizman testified with
certainty that he never asked Messiah to terminate the unit
employees. However, on cross-examination he was shown a
letter he signed and sent to Langan which stated: ‘‘[Y]ou
have advised us that the previous owner (Messiah) will ter-
minate its employees.’’ Upon being shown the letter,
Roizman reluctantly admitted that he had spoken to Langan
about this matter. In connection with the subject of moneys
owed to the union funds by Messiah, Roizman testified on
direct that he never asked Langan about such moneys. Dur-
ing cross-examination Roizman completely contradicted him-
self and reluctantly admitted that he had indeed asked
Langan about the moneys owed the Union by Messiah, but
Langan refused to tell him.
The contradictory statements described above tend to show
that Roizman was attempting to hide his interest about mon-
eys owed to the Union and wanted to have Messiah termi-
nate the unit employees prior to his assumption of ownership
so that he would not have to recognize the Union as a suc-
cessor.
Further, and significantly, Roizman attempted to disguise
the reason for his refusal to hire the unit employees main-
taining the Highland facility. In this connection he testified
on direct examination that when he takes over a new build-
ing, he usually does substantial renovation and prefers to use
outside contractors. Yet although he took over the building
in December 1993, he did not hire a contractor to make the
substantial repairs described until August 1994. Moreover,
rather than keep the unit employees in his employ for the
usual day-to-day maintenance duties, he hired a maintenance
contractor with his employees. This contractor was a non-
union contractor.
Roizman also was evasive concerning his direct testimony
about his reasons for not assuming contracts. In this regard,
Roizman testified on direct that he did not want to assume
the employer’s obligations. When it was pointed out to
Roizman on cross-examination that he could have hired the
maintenance employees employed by Messiah without any
obligation to pick up the Union contract, Roizman appeared
taken aback and revealingly testified that: ‘‘That’s not what
my counsel told me . . . . If they have a contract with
somebody, how do I know for a fact that this contract is not
my obligation?’’
Based on the totality of the above considerations, I con-
clude that Roizman is simply not a believable witness.
Analysis and Conclusions
It is alleged that Respondent refused to hire the three em-
ployees who comprised the unit of maintenance employees
employed by Messiah, and represented by the Union, be-
cause of their membership in the Union and Respondent’s in-
tention to operate the Highland facility as a nonunion build-
ing.
Section 8(a)(3) of the Act prohibits employers from dis-
criminating against in regard to their hire or any other term
and condition of employment, in order to discourage mem-
bership in any labor organization. In order establish a viola-
tion of Section 8(a)(3), the General Counsel must establish
that a motivating factor in the employer’s action, in the in-
stant case a refusal to hire the employees formerly employed
by Messiah, was their union or protected activities. Once
such factor is established, the burden then shifts to the em-
ployer to establish that such action would have taken place
in the absence of such union membership or protected activ-
ity. Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
The Board has also held that the Wright Line standard is
applicable to refusal to hire cases, such as the instant case.
Champion Rivet Co., 314 NLRB 1097 (1994).
In the instant case Respondent had knowledge of the em-
ployees membership in the Union and animus concerning
such membership. In this connection, on December 13, 1993,
Langan, in a telephone conversation with Roizman credibly
testified that after he told Roizman that the unit employees
were excellent workers, Roizman replied that he did not in-
tend to hire them because he did not want the Union.
Roizman further stated that he didn’t want the Union because
he did not want to assume the moneys owed to the Union
by Messiah pursuant to its contract with the Union. Such
credited testimony establishes Roizman’s knowledge of the
unit employees membership in and activities on behalf of the
Union. Moreover, such credited testimony constitutes a vir-
tual admission of Respondent’s animus and that the sole rea-
son for Respondent’s refusal to hire the unit employees was
to avoid having to recognize and bargain with the Union.
The credited testimony of employee Machado also estab-
lishes that Roizman failed to hire the unit employees because
he was determined to avoid the Union. In this connection,
Machado credibly testified that Roizman told him that he
was not going to hire the maintenance employees because
‘‘he was not going to carry nobody’s baggage.’’ I find such
statement a clearly implied reference to the Union, and an
expressed intention not to recognize and bargain, when taken
together with his conversations with Langan, described above
and with Trivella, described below.
The credited testimony of Trivella, establishes conclusively
that Roizman refused to hire the unit employees because he
did not want to recognize and bargain with the Union. In this
connection during their December 28, 1993 telephone con-
versation, Roizman told Trivella, after Trivella demanded
recognition, that the Highland facility was a ‘‘non-union
building,’’ and that he ‘‘did not want any union there.’’
Moreover, during Roizman’s testimony, he virtually admit-
ted, during cross-examination, that he did not hire the unit
employees formerly employed by Messiah because he did
not want to assume any bargaining relationship with the
Union. In this connection when Roizman was asked on
cross-examination why he didn’t hire the unit employees, be-
cause such hiring would not necessarily mean that he would
have to assume the union contract, Roizman replied, ‘‘That’s
not what my counsel told me . . . if they have a contract
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112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with somebody, how do I know for a fact that this contract
is not my obligation?’’
Thus it is clear, and I find that General Counsel has estab-
lished a very strong prima face case based on the credited
testimony of Langan, Machado, and Trivella, and the admis-
sions by Roizman.
Respondent contends that it did not hire the unit employ-
ees because when he closes title to a new building, it is his
unvarying practice to perform substantial renovations imme-
diately after closing title, using outside contractors to do such
renovations. However, in the instant case, subsequent to clos-
ing title on December 29, 1993, Respondent did not com-
mence work on such renovations at the Highland facility
until August 1994, a period of 8 months later. Given this sit-
uation, Respondent offered no credible evidence as to why
he did not hire the unit employees to perform the usual
maintenance operations they usually performed. In fact the
only maintenance employees Respondent eventually hired
were the unit employees in March 1994.
Thus, I conclude that the only motivating factor in connec-
tion with Respondent’s refusal to hire the unit employees,
formerly employed by Messiah, was to avoid having to rec-
ognize and bargain with the Union. Accordingly, I find by
such refusal to hire, that Respondent has violated Section
8(a)(1) of the Act.
The General Counsel contends that Respondent violated
Section 8(a)(1) and (5) of the Act when it refused to recog-
nize and bargain with the Union on December 29, 1993. The
General Counsel’s theory is based on its contention that Re-
spondent is a successor to Messiah.
Board law clearly establishes that a ‘‘successor’’ employer
must recognize and bargain with a union when it hires a
‘‘substantial and representative’’ compliment of employees,
the majority of which are the predecessor employer’s em-
ployees, who were represented by the union. NLRB v. Burns
Security Services, 406 U.S. 272 (1972); Fall River Dyeing
Corp., 482 U.S. 27 (1987). In determining whether such a
bargaining obligation is present, the Board looks at a number
of factors including:
(1) Whether there has been a substantial continuity of the
same business operation; (2) whether the new employer uses
the same plant; (3) whether the alleged successor employs
the same or substantially the same work force; (4) whether
the same jobs exist under the same working conditions; (5)
whether the same supervisors exist; (6) whether the same
equipment and methods of production exist; (7) whether the
same product or services are offered.
Without enumerating each consideration separately, it is
clear from the facts recited above that all seven factors cited
above are present in the instant case. With respect to (3)
above, I have found that as of December 29, 1993, Respond-
ent but for its unlawful refusal to hire the maintenance em-
ployees employed by Messiah would have hired these em-
ployees. Thus, the third consideration set forth above is met.
Therefore, I conclude that Respondent is a successor to Mes-
siah.
Respondent contends that the foreclosure sale of the High-
land facility by HUD to Respondent nullifies Respondent’s
status as a successor. The record does not support a finding
that HUD acted as an employer so as to exempt Respondent
as a successor employer. In a letter dated December 8, 1993,
the associate regional counsel of HUD advised Langan of
Arco that HUD at no time held a deed to the Highland facil-
ity, and that at all times prior to Respondent taking title,
Messiah had continued responsibility for the management
and functioning of the Highland facility until the date of
closing. HUD was no more then an agent in connection with
the sale. Accordingly, I reject Respondent’s contention.
The credible evidence establishes that on December 28,
the Union, by its attorney, Trivella, made a proper demand
for recognition which was refused by Respondent. In this
connection, the credited testimony of Trivella established that
on December 28, 1993, during his telephone conversation
with Roizman, described above, Trivella asked Respondent
to recognize the Union as the collective-bargaining represent-
ative for the unit employees employed by Respondent’s pred-
ecessor, Messiah, and set forth in its collective-bargaining
agreement with the Union. Roizman unequivocally refused.
That same day Trivella called Mary Enyart, Respondent’s at-
torney at the time, and repeated such demand for recognition.
Enyart was not called as a witness to rebut Trivella’s testi-
mony. I conclude Trivella made a proper demand for rec-
ognition concerning all the maintenance employees employed
up to that time by Messiah, and covered by a multiemployer
collective-bargaining agreement with the Union. Al Landers
Dump Truck, 192 NLRB 207 (1971), enfd. sub nom. NLRB
v. Cofer, 637 F.2d 1309 (9th Cir. 1981).
I further conclude that the unit for which the Union re-
quested recognition is an appropriate unit. That unit is effec-
tively all the maintenance employees formerly employed by
Messiah, the predecessor employer to Respondent at the
Highland facility. The only facility that Messiah owned was
the Highland facility. There is no evidence that would tend
to establish that the fact that the unit employees employed
by Messiah were part of a multiemployer unit which would
render such unit an inappropriate unit. Fall River Dyeing
Corp., supra at 29–30. See also Stewart Granite Enterprises,
255 NLRB 569 (1981); Boston-Needham Industrial Cleaning
Co., 216 NLRB 26 (1975).
I also conclude that on December 29, 1993, Respondent,
a successor employer, unlawfully refused to recognize and
bargain with the Union in violation of Section 8(a)(1) and (5)
of the Act.
It is alleged in the complaint that in March 1994, Re-
spondent hired the unit employees, and that following their
hire Respondent unilaterally changed their working hours,
sick leave, vacation time, holidays, and work assignments in
violation of Section 8(a)(1) and (5) of the Act.
Ordinarily, a successor employer may unilaterally set new
initial terms and conditions of employment, unless it has
made clear that such employer plans to hire the predecessor’s
employees as a majority of its work force. Spruce-Up Corp.,
209 NLRB 194 (1975). However, where an employer has un-
lawfully refused to hire employees in order to avoid its bar-
gaining obligations as a successor employer with a labor or-
ganization representing the predecessor’s employees, the
Board has unequivocally held that such employer forfeits any
right to unilaterally set initial terms and conditions of em-
ployment of the affected unit employees. Carib Inn of San
Juan, 312 NLRB 1212 fn. 4 (1993), enfd. 916 F.2d 1183
(7th Cir. 1990).
As set forth above, Respondent unlawfully refused to hire
the unit employees upon taking over the Highland facility
from the predecessor, Messiah, in order to avoid recognizing
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113YONKERS ASSOCIATES, 94 L. P.
and bargaining with the Union. When Respondent hired these
employees in March 1993, it unilaterally changed the work-
ing conditions of these employees by changing their working
hours, sick leave, vacation time, holidays, and work assign-
ments. I find such conduct to be violative of Section 8(a)(1)
and (5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Respondent is a successor employer to Messiah.
3. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
4. On December 29, 1994, Respondent refused to hire
Francisco Machado, Jose Borbon, and Ariel Rivera because
of their membership in and activities on behalf of the Union.
5. Since December 29, the Union has been the exclusive
bargaining representative of Respondent’s employees in the
following unit:
All building service employees at the Highland Avenue,
Yonkers, New York facility.
6. Since December 29, 1993, Respondent has failed and
refused to recognize and bargain with the Union in the unit
set forth above in violation of Section 8(a)(1) and (5) of the
Act.
7. In March 1994, Respondent made unilateral changes in
the unit employees working hours, sick leave, vacation time,
holidays, and work assignments without notifying the Union
and giving the Union the opportunity to bargain concerning
such changes.
REMEDY
It having been found that Respondent has engaged in cer-
tain unfair labor practices, it is recommended that it cease
and desist therefrom, and take such affirmative action nec-
essary to effectuate the policies of the Act. Having found
that Respondent refused hire the three employees set forth
above for a specified period of time, it shall be rec-
ommended that Respondent make the employees whole for
such period by payment to them a sum of money equal to
that which they would have earned during the period when
they were not employed less net earnings during such period
computed on a quarterly basis in a manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest to be computed in the manner prescribed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
It is further recommended that, concerning Respondent’s
unlawful changes in the employees working conditions, Re-
spondent reestablish the status quo ante, except where those
changes have been beneficial to the employees in the appro-
priate unit. It is also recommended that whether the changes
have been beneficial to the employees, whether the employ-
ees have lost benefits or money by reason of such changes,
and whether there is any money due and owing to such em-
ployees and the amount thereof, be referred to the compli-
ance stage of this case. See Ogle Production Service, 183
NLRB 682 (1970).
[Recommended Order omitted from publication.]
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