W & M Properties of Connecticut, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 11 162 W & M Properties of Connecticut, Inc. and Local 30, International Union of Operating Engineers, AFL–CIO. Cases 34–CA–9564 and 34–CA–9668. September 20, 2006 DECISION AND ORDER BY MEMBERS LIEBMAN, SCHAUMBER, AND KIRSANOW On July 8, 2002, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respon- dent filed exceptions and a supporting brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order as modified and set forth in full below.2 For the reasons set forth below, we find no merit in the Respondent’s exceptions to procedural and evidentiary rulings made by the judge and to certain of her conclu- sions of law. 1. As an initial matter, the Respondent asserts that the judge made several erroneous evidentiary rulings during the hearing, including her approval of the General Coun- sel’s use of affidavits. The Board has held that a party 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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 adopt the judge’s finding, for the reasons stated by her, that the Respondent coercively interrogated Omar Perez in violation of Sec. 8(a)(1) when its senior vice president, Richard Heller, questioned Perez during a job interview about his membership in the Union. Because any additional 8(a)(1) interrogation finding would be merely cumula- tive and have no effect on the remedy, we find it unnecessary to decide whether Heller’s questioning of Liam McGoohan also violated the Act. We disavow as unsupported by the record the judge’s findings that (1) it is “undisputed” that Heller asked McGoohan and Perez whether they were Local 30 members; (2) Heller erred in his testimony that the Respondent’s staff fixed certain equipment after it took over operations at First Stamford Place; and (3) Executive Vice President Thomas Durels testified that the decision to transfer employee Randy Morse to First Stamford Place was made by December 7 or 8, 2000. The Respondent contends that the judge erred in her description of the appropriate bargaining unit. The Respondent adduced no evidence to support this contention, which we find to be without merit. 2 We will modify the judge’s recommended Order to conform it with the Board’s standard remedial language and to supply a make-whole remedy, inadvertently omitted by the judge, for four individuals to whom the Respondent denied employment in violation of Sec. 8(a)(3). We will also modify the make-whole remedy recommended by the judge for the Respondent’s violation of Sec. 8(a)(5) in accordance with our recent decision in Planned Building Services, 347 NLRB 670 (2006). We will substitute a new notice in conformity with the Order as modified. may use an affidavit to refresh a witness’ recollection, to rehabilitate a witness’ direct examination testimony on cross-examination, or to prove a witness’ prior state- ments when a witness’ testimony at hearing differs from that witness’ affidavit. See McDonald’s, 214 NLRB 879, 880–881 (1974). Here, all of the General Counsel’s challenged uses of affidavits fit within these categories and, thus, were permissible.3 The Respondent also contends that the General Coun- sel improperly used leading questions on direct examina- tion of one of his witnesses. Federal Rule of Evidence 611(c) provides, in pertinent part, that leading questions may be used when “necessary to develop the witness’ testimony.” Accord: Millard Refrigerated Services, 345 NLRB 1143, 1144 (2005). Here, the General Counsel asked his witness, Liam McGoohan, several nonleading questions in an unsuccessful attempt to elicit certain tes- timony. Thus, it was necessary for the General Counsel to use leading questions to develop McGoohan’s testi- mony. The judge did not err in overruling the Respon- dent’s objection. 2. Citing the judge’s first conclusion of law, the Re- spondent contends that the judge erred in finding a viola- tion not alleged in the complaint—specifically, that the Respondent violated Section 8(a)(1) by informing an employee that if he accepted a job it would be nonunion. We find no merit in the Respondent’s contention. The Respondent neglects to state the judge’s first con- clusion of law in full. The judge there concluded that the Respondent violated Section 8(a)(1) “[b]y informing an employee that if he accepted a job it would be non-union, thereby conditioning his employment on refraining from union activities” [emphasis added]. The complaint put the Respondent on relevant notice by alleging as viola- tive of Section 8(a)(1) that “in or about mid-January 2001, Respondent, by Gerritt Blauvelt . . . impliedly threatened employees that employment with Respondent was conditioned upon not engaging in union activities” [emphasis added]. In support of this allegation, em- ployee Perez testified that, approximately “three weeks . . . or maybe a little more” after his December inter- 3 Joseph Morra, property manager of the Respondent’s predecessor, TrizecHahn Corporation, was shown his affidavit when he was unable to recall particular statements made by Respondent Managers Heller and Gerrit Blauvelt. Perez was shown his affidavit to allow him to reiterate with certainty his testimony from direct examination after that testimony was called into question on cross-examination. Stephen Bonos’ affidavit was used to refresh his memory that it was Heller, not Blauvelt, who made a particular statement. Morra’s affidavit was used to refresh his recollection that Respondent’s executive vice president, Thomas Durels, had said that they would call Morra back and make an offer, which differed somewhat from Morra’s testimony regarding the conversation. Each of these uses of affidavits was proper under one or another of the principles set forth above. W & M PROPERTIES OF CONNECTICUT 163 view—i.e., “in or about mid-January”—Blauvelt told him that a job with the Respondent would be a nonunion job because the owners did not want the Union. In other words, Blauvelt impliedly threatened, as alleged, that employment with the Respondent was conditioned upon not engaging in union activities. The judge found that Blauvelt’s statement violated Section 8(a)(1), as alleged, and she simply fleshed out that finding in her Conclu- sions of Law by repeating the statement through which Blauvelt conveyed the implied threat. The judge did not find an unalleged unfair labor practice. The Respondent has not been deprived of due process. 3. The Respondent argues that the judge erred in find- ing that its refusal to hire Liam McGoohan, Stephen Bonos, Richard Stofko, and Henry Cassidy violated Sec- tion 8(a)(3) and (1). Specifically, the Respondent argues that the judge erred by failing to articulate any standard for deciding the 8(a)(3) allegations and by failing to ap- ply FES, 331 NLRB 9 (2000), to decide them. We agree with Respondent that the judge did not explicitly state a standard, but we disagree that the applicable standard is that set forth in FES, supra. In our recent decision in Planned Building Services, supra, 347 NLRB 670, we held that the applicable framework for deciding whether a successor employer has violated Section 8(a)(3) by refusing to hire employees of its predecessor to avoid a bargaining obligation is that set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Applying that standard here, as explained below, we affirm the judge’s 8(a)(3) findings. To establish a violation of Section 8(a)(3) under Wright Line where a refusal to hire is alleged in the suc- cessorship context, the General Counsel has the burden of showing that the employer failed to hire employees of its predecessor and was motivated by antiunion animus. Planned Building Services, supra, slip op. at 4.4 Once the General Counsel has made this showing, the burden shifts to the employer to demonstrate that it would not have hired the predecessor’s employees even in the ab- sence of its unlawful motive. Id., slip op. at 4–5. The employer may show, for example, that it did not hire particular employees because they were not qualified for the available jobs, and that it would not have hired them for that reason even in the absence of its antiunion ani- mus. Id., slip op. at 5. The General Counsel sustained his burden under the above-stated standard. The Respondent failed to hire 4 Consistent with his previously stated position, Member Schaumber believes that Wright Line requires a showing of a causal nexus between the union animus and the refusal to hire. See, e.g., North Fork Services Joint Venture, 346 NLRB No. 92, slip op. at 2 fn. 7 (2006). McGoohan, Bonos, Stofko, and Cassidy, all employees of its predecessor, TrizecHahn Corporation. Direct evi- dence establishes an antiunion motivation. Blauvelt told Perez that a job with the Respondent would not be a un- ion job and that the Respondent’s owners did not want a union.5 Also, when Morra told Blauvelt that TrizecHahn employees belonged to the Union, Blauvelt replied that it did not matter because they would have to be nonunion or they would not be hired. The Respondent claims that it did not hire the alleged discriminatees because they were unqualified, as chiefly demonstrated by the Respondent’s view that First Stam- ford Place was in unsatisfactory shape. Based on her detailed analysis of the record, the judge found that the Respondent’s stated reasons for failing to hire the em- ployees were pretextual. For the reasons stated by the judge, we agree. Accordingly, the Respondent failed to rebut the General Counsel’s prima facie case. Thus, we adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by failing to hire McGoohan, Bonos, Stofko, and Cassidy. 4. The Respondent excepts to the judge’s conclusion that it violated Section 8(a)(5) and (1) by refusing to rec- ognize and bargain with the Union and by unilaterally changing terms and conditions of employment without notice to and bargaining with the Union. The Respon- dent’s exception on this point, however, depends solely on the merits of its contention that the judge erred in finding a violation of Section 8(a)(3). As we have re- jected the Respondent’s 8(a)(3) defense, we also reject the Respondent’s 8(a)(5) exception based thereon.6 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, W & M Properties of Connecticut, Inc., Stamford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 5 Blauvelt offered Perez a job, but he turned down the offer because he wanted to stay with the Union. 6 The finding of an 8(a)(5) violation in this case rests on the doctrine set forth in Love’s Barbeque Restaurant No. 62, 245 NLRB 78 (1979), enfd. in relevant part sub nom. Kallman v. NLRB, 640 F.2d 1094 (9th Cir. 1981). Members Schaumber and Kirsanow note that the Respon- dent does not challenge the Love’s Barbeque doctrine, and therefore they do not pass on its validity. See Planned Building Services, supra, slip op. at 5 fn. 18. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 164 1. Cease and desist from (a) Conditioning employment of its employees on their refraining from activities in support of Local 30, Interna- tional Union of Operating Engineers, AFL–CIO (Local 30). (b) Interrogating employees concerning their member- ship in Local 30. (c) Refusing to hire employees of its predecessor be- cause of their membership in Local 30 and to avoid an obligation to bargain with Local 30. (d) Refusing to recognize and bargain with Local 30 as the exclusive collective-bargaining representative of its employees in the following appropriate unit: All full-time and regular part-time journeymen and ap- prentice stationary engineers, maintenance mechanics, and utility workers employed at First Stamford Place, but excluding office clerical employees, guards, profes- sional employees and supervisors as defined in the Act. (e) Unilaterally changing wages, hours, and other terms and conditions of employment of the employees in the above-described unit without first giving notice to and bargaining with Local 30. (f) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with Local 30 as the exclusive representative of its employees in the unit set forth above concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (b) At the request of Local 30, rescind any departures from terms and conditions of employment that existed prior to its commencing operations at First Stamford Place, restoring preexisting terms and conditions of em- ployment until it negotiates in good faith with Local 30 to agreement or impasse. (c) Make whole the unit employees, in the manner set forth in the remedy section of the judge’s decision, for losses caused by its failure to apply the terms and condi- tions of employment that existed prior to its commencing operations at First Stamford Place, subject to its demon- strating in a compliance hearing that, had it lawfully bar- gained with Local 30, it would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under its predecessor. (d) Within 14 days from the date of this Order, offer Stephen Bonos, Henry Cassidy, Richard Stofko, and Liam McGoohan employment in their former jobs or, if those jobs no longer exist, in substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place. (e) Make Stephen Bonos, Henry Cassidy, Richard Stofko, and Liam McGoohan whole, in the manner set forth in the remedy section of the judge’s decision, for any loss of earnings and other benefits they may have suffered by reason of the Respondent’s unlawful refusal to employ them. (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, so- cial security payment records, timecards, personnel re- cords and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this order. (g) Within 14 days after service by the Region, post at its facility at First Stamford Place in Stamford, Connecti- cut, copies of the attached notice marked “Appendix.”7 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent 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 Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since December 7, 2000. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsi- ble official on a form provided by the Region attesting to the steps that 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 7 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” W & M PROPERTIES OF CONNECTICUT 165 The National Labor Relations Board has found that we vio- lated 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 activities. WE WILL NOT inform employees that they must refrain from membership in Local 30, International Union of Operating Engineers, AFL–CIO, or any other union as a condition of employment with our Company. WE WILL NOT question you about your membership in Local 30 or any other union. WE WILL NOT refuse to hire employees because they are members of Local 30 or any other union. WE WILL NOT refuse to recognize and bargain with Lo- cal 30 as the exclusive collective-bargaining representa- tive of our employees in the following appropriate bar- gaining unit: All full-time and regular part-time journeymen and ap- prentice stationary engineers, maintenance mechanics and utility workers employed at First Stamford Place, but excluding office clerical employees, guards, profes- sional employees and supervisors as defined in the Act. WE WILL NOT unilaterally change wages, hours, and other terms and conditions of employment of our em- ployees in the above-described unit without first giving notice to and bargaining with Local 30. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights set forth above. WE WILL recognize and, on request, bargain with Local 30 and put in writing and sign any agreement reached on terms and conditions of employment for employees in the bargaining unit described above. WE WILL, at the request of Local 30, rescind changes in terms and conditions of employment we made without notice to or bargaining with Local 30. WE WILL make our employees whole for any losses caused by the changes in terms and conditions of em- ployment we made without notice to or bargaining with Local 30, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with Local 30, we would have, at some identifiable time, lawfully im- posed less favorable terms than those that had existed under our predecessor. WE WILL, within 14 days from the date of the Board’s Order, offer Stephen Bonos, Henry Cassidy, Richard Stofko, and Liam McGoohan employment in their former jobs or, if those jobs no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, dis- charging if necessary any employees hired in their place. WE WILL make Stephen Bonos, Henry Cassidy, Rich- ard Stofko, and Liam McGoohan whole for any loss of earnings and other benefits resulting from our unlawful refusal to employ them, less any net interim earnings, plus interest. W & M PROPERTIES OF CONNECTICUT, INC. Patrick E. Daly, Esq., for the General Counsel. Peter D. Stergios, Esq. and Patrick M. Collins, Esq. (Epstein Becker & Green, P.C.), of New York, New York, for the Respondent. DECISION STATEMENT OF THE CASE ELEANOR MACDONALD, Administrative Law Judge. This case was tried in New Haven, Connecticut, on November 26 through 29, 2001. The Complaint alleges that the Respondent is a successor employer and that Respondent, in violation of Section 8(a)(1), (3) and (5) of the Act, interrogated employees, threatened that employment was conditioned on refraining from union activities, refused to hire four employees of its predeces- sor and refused to bargain with Local 30. The Respondent denies that it has engaged in any violations of the Act. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent on February 27, 2002, I make the following1 FINDINGS OF FACT I. JURISDICTION The Respondent, a Connecticut corporation with an office and place of business in Stamford, Connecticut, is engaged in the business of owning, managing, and renting commercial properties. The Respondent annually derives gross revenues in excess of $100,000 and receives at its facilities goods valued in excess of $50,000 directly from points located outside the State of Connecticut. The Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that International Union of 1 The record is hereby corrected so that at page 200, line 17, it reads “And he said that well it won’t matter. . . .”; at page 210, line 19, the record should read “would not fit in the W & M mold”; at page 221, line 5, the record should read “let the other employees know they were not going to offer to hire”; at page 235, line 17, the record should read “work done by engineering and maintenance”; at page 257, line 16, the last word should read “cross-examination”; at page 454, line 14, the second word should be “past” rather than “passed”; at page 550, line 23 the correct phrase is “variable frequency drive”; at page 606, line 10, the last phrase should read “jumped-out VFD”. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 166 Operating Engineers, Local 30, AFL–CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Respondent W & M prides itself on being an owner and operator of Class A commercial properties. In March 2000 the Respondent began exploring the purchase of an office complex known as First Stamford Place which had been placed on the market by its owner the TrizecHahn Corporation. Respon- dent’s managers visited the site on various occasions, at first to determine whether First Stamford Place was a candidate for purchase by W & M, and after the sales agreement was signed on November 30, 2000, as part of a due diligence process. The actual closing took place on January 19, 2001. The W & M managers directly involved in the events material to the instant case were Thomas Durels, executive vice president of the Respondent, Richard Heller, a senior vice president and Gerrit Blauvelt, a director of property management. In addition to other properties in the mid western part of the United States, W & M owns multi-tenant office properties in Westchester County, New York and in Fairfield County, Con- necticut, ranging in size from 90,000 square feet to 250,000 square feet. First Stamford Place has an area of 810,000 square feet and is more than three times the size of the largest facility previously owned by W & M. The TrizecHahn property manager at First Stamford Place was Joseph Morra who had held that position since 1998. Also located at First Stamford Place were Morra’s superiors in the TrizecHahn organization, regional manager Bruce Crawford, and vice-president of operations Jerry Schom. Morra had been hired in 1984 by TrizecHahn as the chief engineer for First Stamford Place and had subsequently been promoted to succes- sively higher managerial positions.2 As the property manager, Morra supervised an administrative staff and a maintenance and engineering staff headed by chief engineer Stephen Bonos. Bonos had begun working for TrizecHahn as a utility man in 1989 and had been promoted to various positions culminating in his elevation to chief engineer in 1997. At the time of his promotion to chief engineer Bonos expressed a desire to remain in the bargaining unit and TrizecHahn agreed to this condition. Bonos directed the work of six men: assistant chief engineer Paul Schmitt, building engineers Henry Cassidy and Omar Perez, and maintenance mechanics Richard Stofko, Hector Benitez, and Liam McGoohan.3 Bonos and the other mainte- nance and engineering employees were represented by Local 30 in a unit described in the complaint as:4 All full-time and regular part-time journeymen and apprentice stationary engineers, maintenance mechanics and utility 2 When Morra was chief engineer he had been considered a part of management and had not been a member of the bargaining unit. 3 The record suggests that the unit usually included one more em- ployee but that this position was left vacant when Trizechahn put the property on the market. 4 The testimony of the employees shows that Local 30 had repre- sented the maintenance and engineering employees for many years and that under the collective bargaining agreement they were guaranteed certain wages and benefits including a pension and health insurance. workers employed at First Stamford Place, but excluding of- fice clerical employees, guards, professional employees and supervisors as defined in the Act. Shortly before the closing on January 19, 2001, the Respon- dent offered employment to only two of the maintenance and engineering staff, Hector Benitez, who accepted the offer, and Omar Perez, who did not. The Complaint alleges that the Respondent violated the Act by failing to offer employment to Bonos, Stofko, Cassidy, and McGoohan.5 First Stamford Place comprises three multi-tenant office buildings respectively numbered and referred to as building 100, 200, and 300.6 The property incorporates various roads and driveways which are not fully described in the record. The exterior construction of the three buildings is of a type known as glass curtain wall. An attractive feature of each building is an atrium which in the 100 and 300 buildings is seven stories high and in the 200 building is four stories high. When first constructed the atria had center fountains but at some point these had been shut down and plantings had been substituted for the water. TrizecHahn used subcontractors to perform various services at First Stamford Place. The premises were cleaned by a com- pany named Tempco although TrizecHahn employee Jorge Jiminez was based at First Stamford Place and was the cleaning supervisor. Security services and landscaping were also con- tracted out. B. Inspection Tours by W & M Executive Vice President Thomas Durels is chairman of the W & M acquisition committee. His responsibilities include directing properties in transition to final acquisition and per- forming the due diligence activities prior to acquisition. Durels defined due diligence as a process of obtaining information about the property, requesting documents from the seller, un- derstanding the physical condition of the property, confirming the initial understanding of what exactly was being purchased, and making financial projections of the costs of acquiring and operating the facility. Durels testified that in March 2000 when he first learned that First Stamford Place was on the market he identified the property as a potential acquisition and he evalu- ated whether it was a suitable candidate for purchase. Durels helped negotiate the business terms of the sales contract with Brian Lipson, a TrizecHahn executive. Durels stated that dur- ing his information-gathering period he dealt with TrizecHahn Managers Bruce Crawford, Joseph Schom, and Joseph Morra. Durels stated that once TrizecHahn and W & M “shook hands” on the sale of First Stamford Place about September 27, 2000 he carried out the due diligence activities while the contract of sale was being drafted. 5 The Complaint does not allege the failure to offer Schmitt a job as a violation. 6 There is also a hotel which can be reached through a parking ga- rage common to all the buildings. The hotel was not part of the sale to W & M and none of the unit employees had any responsibilities with respect to the hotel. W & M PROPERTIES OF CONNECTICUT 167 Joseph Morra testified that as property manager for First Stamford Place under TrizecHahn his duties were to oversee the day-to-day operation of the property including the services, tenant relations, leasing, and construction. Morra hired and promoted chief engineer Bonos. Morra stated that the mainte- nance and engineering unit employees did a great job and kept the tenants happy. Morra testified that at various times in 2000 he met W & M managers Blauvelt, Heller, Durels, and others. He informed them that the property was cleaned by a subcontractor named Tempco and he learned that W & M did its cleaning in-house using its own employees. On one occasion Director of Property Management Blauvelt came to the property with Alphonso Ugarte who was in charge of cleaning services for W & M. Blauvelt asked a number of questions about cleaning First Stamford Place and he asked whether there were any problems with employees. Morra said that he had no problems because the subcontractor dealt with the Union. Blauvelt replied that W & M had union protests going on at another property it owned. He said if anyone was going to work for W & M he would have to be nonunion. Morra replied “but these guys are union”, re- ferring to the cleaners, mechanics, and engineers. Blauvelt re- sponded that it did not matter because they’re going to have to be nonunion or they wouldn’t be hired. Morra said he did not think the men would work without a union. Then Blauvelt asked to see the TrizecHahn cleaning supervisor, Jorge Jiminez. After Jiminez met with Blauvelt he reported to Morra that Blauvelt said if he wanted to work for W & M he would have to change his hours and reduce his salary because he was mak- ing too much money. Morra reported this to his superior, vice president of operations Jerry Schom. Morra told Schom that W & M was making the TrizecHahn employees fear for their jobs and telling them that they could not have a union. Morra thought this would impair the efficiency of his operation be- cause it gave employees the impression that W & M viewed them not as humans but as pieces of garbage. Schom informed Morra that W & M had not signed any documents and should not be on the property. He instructed Morra that W & M could not tour the property and should leave. Morra passed this in- struction to Bonos and his assistant property manager. Blauvelt denied that he discussed the Union with Morra and he denied saying W & M would hire only nonunion personnel. Blauvelt said that Morra never told him that the men would not work without the Union. In October or November 2000, Durels telephoned Morra to ask about the contract with Local 30. Morra testified that he was not in the office and Durels left a message on his voice mail. However, Durels apparently did not break the telephone connection after he left his message and Morra’s voice mail kept recording a conversation taking place between Durels and others in his office. Morra testified that he heard Heller’s voice, among others. Morra said that the voice mail recording contained conversation to the effect that the engineers and maintenance mechanics at First Stamford Place were making more than they should have been and they were probably put- ting in tons of overtime. Another voice expressed concern that if all the men left at once they would not be able to operate the property. W & M Senior Vice president Heller testified that he was re- sponsible for the due-diligence physical inspections of First Stamford Place. Heller’s inspections were intended to identify potential expenses for a maintenance budget and major items to be repaired or replaced. Heller had also to review the staffing of the property and to put together a group to manage, to clean and to perform engineering services. As soon as Durels in- structed him to begin, Heller telephoned Property Manager Morra and arranged to tour First Stamford Place on September 29, 2000. Heller was taken around by Chief Engineer Bonos. From this day until the day of the closing Heller toured the property about 12 times with various engineering or security employees in attendance. Heller’s practice was to decide which areas he wanted to visit on each occasion and to ask to be taken there. He liked to begin with the rooftops and to walk down to the lower levels. Heller testified that when Bonos took him to the roof he noted that some insulation and rock had been removed expos- ing the membrane. When Heller asked why the roof was not put back into its original condition Bonos said that the roof had been repaired and he was not sure why it had been left that way. Bonos said that Heller should ask Morra about this. When Heller asked Morra about the roof the latter replied that the roof had been fixed and that it did not leak. Heller told Morra that he had found problems with the roof, the copings and the skylights but that Bonos was not able to answer his questions. Morra said that he would furnish the information and he eventually arranged for Heller to have access to the plan room where records were kept. Heller found out that the roof was 15 years old. W & M hired a consultant who gave an opin- ion that the roof had 3 years of service left to it. Heller did not know how long the warrantee period had been. Heller stated that all around the perimeter of the roof there was rope lighting to make the building visible from the highway. Heller re- marked that the electrical connections were not in covered boxes which Heller believed was a code requirement, but Bonos said it had always been like that. The installation had been performed by TrizecHahn employees, however the record does not disclose when this was done. Heller blamed Bonos for permitting this condition to exist. Heller noted that some skylights were steamed and in some places the glass was broken and he asked whether these prob- lems would be addressed. Bonos replied that his crew did not do those repairs and that Heller should speak to Morra about the issue. In one stairwell Heller noticed a large motor. In response to Heller’s question Bonos replied that the motor had been re- placed months ago. When Heller said this was an egress safety issue Bonos said it had never been in his way. Heller ques- tioned Morra who replied that the motor was there as a re- placement. In one of the mechanical rooms Heller saw a large fan unit with a caution tape in front of it. Bonos explained that this was a variable frequency drive fan (VFD) and that because it was broken there were parts on order. Heller testified that he was not upset to hear this. But Heller offered as a criticism of Bonos that the item had not been fixed as of the closing and that his own people then easily solved the problem in-house. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 168 Heller erred in his testimony. Respondent’s exhibit of repairs made after the closing shows that it paid a company named Sartron to make the repair pursuant to an invoice dated Febru- ary 8, 2001. Heller noted that trench drains and area drains in parking lots and garages were clogged with debris. Heller had been told that McGoohan cleaned drains but he did not know whether Perez or Benitez also cleared drains. As a matter of the efficient use of skills, Heller testified that it made sense to give this type of job to the mechanics rather than the building engineers whose skills should be used elsewhere. Morra told Heller that his people did this type of preventive maintenance but Heller did not think it was well done. Heller observed that doors on a loading dock did not operate properly. He asked Morra about this but it was never repaired. Heller testified that he saw two or three leaking bathroom fau- cets, he noted that caulking was required at some sinks and that in the bathroom stalls some coat hooks were missing and some partitions were loose. He did not ask who on the staff might be responsible for taking care of this. Heller saw that some fire exit doors did not close properly. Heller testified that electrical panels in two or three locked electrical rooms were missing covers.7 He stated that the wiring was exposed and presented a risk of injury because they were not tagged to warn of danger. Heller believed that anyone who had a key to such a room could touch an exposed wire. Heller acknowledged that he did not know who had keys to these locked rooms. Heller made a point in his testimony that the lights were out all over First Stamford Place. He said that some exit lights at stairwells were out. He testified that there were numerous ga- rage, bathroom, and exterior lights that were not working. However, Heller acknowledged that his notes do not reflect the fact that he noted any problems with lights nor that there were any lights out in the garage or elsewhere. Heller testified that he was upset that the circuits for some of the lobby lights had been shut because it was felt that the lights were not necessary. He himself thought there was not enough light in the lobbies. Finally, Heller testified that he found the common areas of the facility to be dirty. He saw cigarette butts in the garage. Heller could not say whose responsibility it was to clean the garage. Heller spoke to Morra about the lighting deficiencies and about the many other problems he noted. On another occasion Heller arranged for the swing stage to be lowered from the roof so that he and a consultant could ex- amine the exterior of the building. Heller found that the rubber gaskets that keep the glass curtain wall in place required up- keep, On this visit Heller noted that the light fixtures in the driveway needed paint. He also found that the security gates in the parking lot were open and that security doors in the garage were not locked. On this occasions, Heller did not ask whether the TrizecHahn employees were responsible for maintaining and inspecting the security gates and doors or whether this was the job of the outside security contractor. Heller inspected the tool rooms and supply rooms and found that some old HVAC 7 At first Heller said this was a condition “throughout the building” but when asked to be specific he said there were two or three such instances. filters were being kept and that old parts were lying around. He found that the common food service area was not well kept with lights out and some broken tiles. Heller found that some fire extinguishers were missing from cabinets where he ex- pected to see them. On the roof he found that steel supports for the satellite system required scraping and paint in order to pre- vent the development of rust. Heller testified that the roof copings needed to be caulked. Heller saw that the chilled water piping system had recently been painted and he asked Bonos whether it was planned to affix signage to indicate the purpose of each pipe. Bonos said it had not been done yet. Heller commented that this was never done. During one visit when it was raining Heller observed a bucket catching water in one of the lobbies.8 Morra informed Heller that this was a new leak. Heller testified that he believed that the rain was coming through the skylight. He did not know whose responsibility it was to fix this situation. Heller testified that Morra told him that there was a work or- der system and that preventive maintenance was done through a computerized system and manually kept cards. Heller asked for the work order records but he complained that they were never turned over. Heller testified that on several of his visits he went down to the engineering room and found “the engineering staff all sit- ting around the table and it wasn’t lunch, didn’t appear to be a break and I observed this many times, as if they were just wait- ing around to be called for a work order.” Heller commented generally that, “I took note of and felt that no one really cared about the property in its current state as I was touring it through the maintenance that should have been done by Mr. Morra and the engineering staff.” After Septem- ber and October, Heller stopped making written notes because, “I had already seen the condition of the property, I knew that there were many deficiencies, there was an overall theme to me that we needed to change the way the property was being run and address these mechanical issues.” Heller testified that by October 29 he came to the conclusion that First Stamford Place was in a state of disrepair due to failings by the engineering and maintenance staff. He stated that he did not investigate who on the engineering staff was responsible for the deficiencies he had noted and he did not know whether either of the two TrizecHahn employees offered jobs by W & M had any respon- sibility for the problem areas. Heller said that the deficiencies were due to the “management and employees that were at TrizecHahn who were responsible for operating the building.” Heller included Morra among those responsible. Heller had discussed some outside contractor issues with Morra and he knew that cleaning, security and landscaping were contracted out. Heller testified that he did not know whether the outside contractors reported to Morra or to Bonos. This testimony was in error: Heller’s notes of his interview of Bonos clearly shows that Bonos “does not overview” cleaning, security and land- scaping. He gave his opinion that even if Bonos had not been responsible for the work of the outside contractors Bonos should have consulted with his superiors about problems with these contractors. Heller acknowledged that he never asked 8 Heller believed that one of the atrium skylights was leaking. W & M PROPERTIES OF CONNECTICUT 169 Bonos whether he had brought outside contractor problems to Morra’s attention. Blauvelt testified that he walked through First Stamford Place with Bonos in September 2000. He stated that he found Bonos to be unfriendly and aloof. Blauvelt said Bonos was often in a rush and did not answer his questions freely. When Blauvelt asked about the landscaping and the security Bonos said it was not his responsibility. Durels testified that although First Stamford Place was known as a class A commercial property he thought it was class A-minus. Durels stated that a factor that entered into this con- clusion was that the average $26 per square foot rent obtained by TrizecHahn was lower than the $38.50 to $39 he thought it should have been. Other reasons for downgrading the property in Durels’ opinion were the shoddy appearance of the property: there were inconsistent finishes in the corridors, he had seen some broken ceiling tiles, he considered the housekeeping shoddy, and he thought the fitness center and cafeteria had a poor appearance. Durels said he concluded that the property was not well supervised by TrizecHahn and the managers on site. Durels testified that he laid the responsibility for this to the TrizecHahn regional manager, Bruce Crawford, Morra, and the mechanics. Chief engineer Bonos testified that his duties included giving work to the building engineers and maintenance employees, carrying out preventive maintenance and working with tenants. Bonos is the holder of a New York City refrigeration license (the HVAC license), a New York City incinerator license, a CFC license (to deal with refrigerants), and a HAZMAT license that permits him to deal with hazardous materials. In June 2000 Morra informed Bonos that TrizecHahn was selling First Stamford Place. Bonos conducted walk-throughs of the prop- erty with a number of potential buyers. On various occasions Bonos went around the property with Durels, Heller, and Blau- velt. Sometime around October 2000 Bonos knew that W & M was the likely purchaser. In response to their questions, Bonos informed the W & M managers that although he was not re- sponsible for landscaping or security functions, he would work with the landscaping and security contractors if they needed his help. If alarms came in Bonos responded with the security forces. Bonos denied that he ever told a W & M representative that he did not get involved with security issues. Bonos in- formed W & M that although he was not responsible for con- struction he would work on construction issues where they affected his duties. Bonos told W & M that the fitness and food service areas were run by contractors, but he added that if they needed help he would assist them. Bonos stated that he made it clear to the W & M managers that all the outside contractors employed at First Stamford Place were supervised by the prop- erty manager, Morra. C. W & M Interviews the TrizecHahn Employees Durels testified that one of the contracts sent to W & M by TrizecHahn during the due diligence period was the collective- bargaining agreement with Local 30 covering the maintenance and engineering employees. Until he received the contract Durels had been unaware that the employees were organized. Durels testified that upon analyzing the collective-bargaining agreement he found that the cost structure in the collective bargaining agreement was within the W & M estimate of oper- ating expenses. Durels testified that he wanted to retain as many existing TrizecHahn employees as possible in order to insure a smooth transition. Durels asked Crawford for permission to interview the Trizechahn employees but this was denied until the sales contract was signed. On December 1, 2000 Durels learned that W & M could begin interviewing the current employees at First Stamford Place and he directed Heller to conduct the inter- views. Heller met with all seven maintenance and engineering employees even though, according to Durels, Respondent never considered hiring assistant chief engineer Schmitt who had once worked for W & M and had been discharged.9 Morra testified that Heller had asked him for employee per- sonnel files. Morra thought it might be against the law to give personnel files to the W & M representatives and he consulted with the TrizecHahn human resources department. He was instructed not to turn over any personnel files. Morra recalled that when the interviews were being set up W & M asked that the managerial employees bring their resumes, but Morra was not asked for the resumes of the maintenance and engineering staff. Bonos was asked to bring his resume but because of his illness one day and a change in schedules he did not give a resume to W & M. Heller interviewed the maintenance and engineering em- ployees on December 7 and 8, 2000.10 Heller was not happy that the employees’ personnel files were never turned over to W & M by TrizecHahn. Heller also recalled that he had asked Morra that the maintenance and engineering employees bring their resumes but none of them did. Heller testified that the purpose of interviewing the unit employees was to determine which individuals would be suitable for hire. Heller empha- sized that he was looking for “long term” employees. Heller listed the following criteria in order as those he was seeking in prospective employees: Experience Educational background Training completed by the employee Licenses held Experience in other trades Eager and interested individuals No disciplinary issues or timeliness problems Durels also testified that in general the Respondent seeks to hire long-term employees and does not want people who will be around for only a short period of time. On December 7 Heller interviewed Liam McGoohan. Heller told McGoohan that W & M had a “hands on philosophy” and that as an employee of W & M he would see high executives frequently unlike with TrizecHahn where most of his contact was “with Morra who ran the property in his own fashion.” Heller testified that he took notes during the interview and he 9 Similarly, all the Trizechahn administrative employees were inter- viewed. 10 Heller began each interview with an introduction to the manage- ment philosophy of W & M and a description of his own background. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 170 wrote that McGoohan had begun working for Trizechahn in 1997 and that he was going through the 3-year Local 30 ap- prentice school. McGoohan had finished high school and had taken some community college classes. McGoohan had a CFC certification. Heller testified that McGoohan was looking for- ward to taking the New York City HVAC exam soon and that he wanted to move into an engineer position when he obtained the New York City license. Heller wrote in his notes that McGoohan’s father had been a Local 30 engineer for many years and the son wanted to follow in his father’s footsteps. Heller’s notes show that McGoohan told him he functioned as a utility person with an electrical and plumbing specialty. McGoohan told Heller that he changed light bulbs at the prop- erty and that he serviced the truck and the parking lot sweeper. He was willing to work and he wanted to stay at First Stamford Place. Heller testified that he was interested in McGoohan for future employment. He explained to McGoohan that he was not in a position to make any offers of employment and that the meeting was an interview for future reference. Heller testified that he later found out that McGoohan had not kept up the maintenance on the sweeper or the truck and that the garage and perimeter drains were clogged. Indeed, Heller added to his notes at some later time the phrases “lots of lights out” and “equipment is poorly kept up.”11 Liam McGoohan testified that he was interviewed by Heller. McGoohan told Heller that he had been hired as an apprentice for HVAC and that as his education progressed he was given more responsibility at work. McGoohan took care of work orders and the general repair of lighting and plumbing. McGoohan estimated that there were between 2000 and 4000 lights in First Stamford Place and on any one day 25 or 30 of them might need replacement. Burnt out bulbs were replaced as soon as they were identified except where their inaccessibil- ity made the use of a lift necessary.12 In such cases, replace- ment would take place during the slow hours of the day. McGoohan told Heller that he saw to the drains and lighting in the garage and roadways and he maintained the vehicles doing tuneups and changing the oil and the spark plugs. McGoohan told Heller that he did carpentry for tenants such a drilling holes in desks, cutting down furniture, and joining wires. He moved furniture, replaced water heaters, and dealt with problems in sink traps and faucets. When asked by Heller to tell about him- self McGoohan replied that he had completed the Local 30 apprentice program and that he had a CFC and BPA license. McGoohan said that his goal was to be an engineer and get his New York City refrigeration license. Heller asked McGoohan how long he had been a union member and Heller responded that he had joined the Union the day he started work and that his father had been a Local 30 member for over 35 years. At the end of the meeting Heller said that he was not in a position to make any job offers. Heller testified that he interviewed Harry Cassidy. Heller re- called that Cassidy told him that he had been a police officer and 11 Heller testified that he made notes of his interviews and then added to those notes from time to time as he obtained more information. 12 Other employees such as Benitez and Stofko also worked replac- ing bulbs. then worked for the fire department from which he was retired. Cassidy said that his duties involved working on equipment as an engineer and that he was the shop steward. Heller asked Cassidy how long he had been in the Union. Heller explained that he posed this question because he wanted to know when Cassidy had started with the Union and if he had gone through the ap- prenticeship program. Cassidy informed him that he had gradu- ated from the Local 30 program and that he had his license. Heller’s notes show that Cassidy joined Local 30 in 1986, that he retired from the Fire Department in 1988 and was “on 2nd ca- reer”. Heller’s notes show that Cassidy described his duties as maintaining the physical plant and testing the fire alarm system. Contrary to his notes, Heller testified that Cassidy’s duties were tenant heat calls, work on thermostats and things of that nature which Heller characterized as “easy responsibilities”. Heller testified that he thought Cassidy had already finished one career and was working at the building “just kind of coasting along” and didn’t seem like he wanted too much work, but he was a very nice individual. At the bottom of his notes, Heller wrote “moves slowly—not a go getter, waits for direction from his supervisor for tasks not on the daily agenda.” Heller did not say when he made this notation. Cassidy testified about his meeting with Heller. According to Cassidy, Heller began by saying that W & M was a big en- terprise with a hands-on policy and that he was a “tough guy” and demanded a lot from his employees. He emphasized to Cassidy that he could not make an offer of employment. Cassidy then gave Heller his job history, telling him that he had been a New York City police officer for 4 years and then a firefighter for 20 years. Before retiring from the New York City Fire Department Cassidy attended the Local 30 appren- ticeship program at night for 3 years. He took such courses as stationary engineering, pneumatic controls, electricity, refrig- eration, boilers, and several mechanical courses. Cassidy ob- tained the stationary engineer training certificate and he took and passed the New York City examination to become a li- censed refrigeration operator and he also obtained the CFC license. Cassidy testified that he told Heller that his duties included maintaining the heating, ventilation, and air- conditioning system as well as some plumbing and electrical work. He maintained and tested the building fire safety system. He tested the fire pump systems and took readings weekly. Alternating on a weekly basis Cassidy started up the building systems early in the morning or stayed late to close them down at the end of business hours in the evenings. This involved checking the computerized building management program, making sure that the fans were operating, checking the me- chanical rooms, and temperature in all three buildings, and checking the cooling towers and chillers. Cassidy recalled that Heller took notes as they spoke. Heller asked Cassidy whether he worked overtime and Cassidy responded that he worked some overtime, usually to provide after-hours air conditioning or heating pursuant to a particular tenant request. Heller asked what Cassidy did as a shop steward. Cassidy replied that he helped new men sign up with the Union and he helped employ- ees fill out forms for medical benefits. Cassidy told Heller that he did not do a lot as shop steward because there were no prob- lems and the men all worked well together. Cassidy added that W & M PROPERTIES OF CONNECTICUT 171 all the maintenance and engineering employees were very in- terested in maintaining their jobs and working at First Stamford Place. Heller asked Cassidy when he planned to retire and Cassidy replied that he had no plans to retire.13 Heller testified that he interviewed Omar Perez. He stated that Perez was bilingual and that this was helpful because he could use him to communicate to the Spanish speaking cleaning staff. Heller recalled that he asked Perez when he joined the Union because he wanted to know how far back the training program went and what training Perez had undergone. Perez told Heller that he had completed the Local 30 apprenticeship program and had a CFC license. Perez said he could do paint- ing and carpentry and that he was a welder, a skill Heller thought was important. Heller’s notes show that Perez had been hired in 1993 and that he had joined the Union in that year. According to Heller’s notes, Perez’ duties at First Stam- ford Place were to maintain the physical plant, to respond to thermostat and heat calls, and to operate equipment and sys- tems. Heller wrote that Perez had a high school diploma and two years of college but “no AA”. The notes show that Perez had a CFC license and a City of Yonkers refrigeration license but “has not taken the NYC refrigeration license.” They con- clude that “can do general handyman work—plumbing and electrical. Wants to be part of a team and would like to stay.” Omar Perez testified that when he met with Heller the latter told him that it was not an interview, just a chance to get ac- quainted. Perez stated that he had not been asked to bring a resume to the meeting. Heller asked him how long he had been a member of the Union and then whether he went through the union apprenticeship program. Heller then asked Perez whether if he were laid off the Union would get him another job. Perez replied that if there were jobs available the Union would send him for an interview but that this did not guarantee him a job. Heller asked if Perez would consider working for W & M and Perez said he would consider it. Perez added that all the employees were capable and it would be good if W & M hired all of them but Heller could not make any promises. Perez testified that he had begun working for TrizecHahn in 1998 as a building engineer. He spent about 90 or 95 percent of his time maintaining the HVAC system. He also performed some plumbing, some carpentry and some electrical work pur- suant to tenant calls to the building office. Perez has a NEUPI license which is a second class stationary engineer’s license and he is CFC certified. Heller testified that he interviewed Hector Benitez. Heller recalled that Benitez said he was an apprentice maintenance mechanic. Heller testified that he asked whether Benitez was involved in union training and that Benitez said he was. Heller’s notes show that Benitez joined Local 30 in 1999. Benitez said he had formerly been on the security staff. Heller was very impressed because Benitez had on-the-job training working during the day as an engineer and nights on the secu- rity staff. Heller stated that Benitez was anxious to learn other types of skills. Heller’s notes show that Benitez has a high school diploma and drives the shuttle van in the morning. The 13 In fact, Cassidy has not retired even though he is no longer work- ing at First Stamford Place. notes state that Benitez performs general maintenance, plumb- ing, and electrical and that he learned on the job. Benitez wanted to continue learning HVAC.14 Blauvelt was also pre- sent at the interview with Benitez. Blauvelt testified that Benitez was eventually offered a job with W & M because he was interested and wanted to work for the Company. Benitez told Blauvelt that being a building mechanic was not his chosen career. Benitez wanted to join the Bridgeport, Connecticut police force and the job with W & M “would not possibly be an extreme long-term proposition for him, but he did want to learn as much as he could.” Blauvelt explained that he thought Benitez would be trustworthy because he wanted to be a police officer. According to Blauvelt, Benitez was hired to a low- level position where he could easily be replaced. Blauvelt said Benitez was “a green mechanic” whose scope of work was “pretty much narrowed to changing light bulbs.” Heller testified that he and Blauvelt interviewed Richard Stofko. Heller stated that Stofko had worked at First Stamford Place since 1993 and that he fulfilled work orders, not having progressed beyond the job of maintenance mechanic. Heller was critical of Stofko because he was happy just doing work orders and had not worked up to become an engineer. As an aside, Heller added that a problem with the maintenance and engineering staff was the fact that none of them told him that they performed inspections on the property. However, this statement was in error. Heller himself testified that during his interview of Paul Schmitt the latter told him that when he was not out doing inspections on the property he would wait for Bonos to assign him a task. Heller’s notes show that Stofko joined Local 30 in 1993 and that he had completed high school and military service. In addition to doing work orders, Heller noted that Stofko did painting and electrical work. Blauvelt also faulted Stofko for lack of ambition. Blauvelt said that Stofko did not wish to expand his knowledge and experience in his field. Heller testified that he and Blauvelt interviewed Bonos. Bonos told them that he had been at First Stamford Place for 15 years working his way up in the maintenance and engineering unit. Heller testified that he had a preconceived idea of Bonos’ qualifications because Bonos had taken him around the build- ing and Bonos had not answered all of his questions and had not tried to please Heller as a possible future employer. During the interview Heller told Bonos that if he worked for W & M he would be responsible for the entire property. Heller said there were many items he had asked about during the walk through that Bonos had deferred to Morra. Heller and Blauvelt said that they would require the chief engineer to take responsibility for areas such as roof repairs, scaffolds, roadways, and signage. Bonos told the two W & M managers that under Morra it was his responsibility to resolve mechanical issues and maintain the equipment, to give the men work orders in response to tenant requests and to fulfill preventive maintenance requirements. Bonos was one of the designated fire safety directors and Heller asked why one fire safety control panel had a “trouble” indica- tor. Bonos replied that the panel was off line in connection 14 Benitez did not have any stationary engineering licenses or certifi- cates. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 172 with a tenant move. Heller mentioned that at W & M the re- sponsibility for maintaining these panels rested on the chief engineer but Bonos said that First Stamford Place used a con- tractor for this task. Heller’s notes of his interview with Bonos show that he joined Local 30 in 1986 and that he had completed high school and some community college. The notes show that Bonos had a CFC license, a New York City refrigeration li- cense, and an incinerator certificate and had completed an ap- prentice training program. Heller wrote that Bonos was on duty from 7 a.m. to 6 p.m. daily. In response to Heller’s questions Bonos stated that he was not responsible for snow removal, garbage removal, the security cameras, and the parking gates. In addition, Heller’s notes listed the following areas for which Bonos was not assigned “overview” responsibility by TrizecHahn: Security—by First security Cleaning—by Tempo including the garage Construction—by Phyllis DelVeccio Landscaping Fitness Center Food Service Bonos testified about his interview with Heller and Blauvelt. They started out by saying that they would tell him about the Company but that they were not there to offer him a job. Heller asked whether Bonos had good relations with the Union. Bonos replied that he did and that he had been a shop steward. Bonos told Heller and Blauvelt about his work experience and about his progression from an apprenticeship training program to chief engineer. Bonos testified that he found Heller intimi- dating in the way he asked questions. Bonos did not get a good feeling about his prospects for a job from Heller. Blauvelt testified that he was there when Heller interviewed Bonos. He said Bonos chewed gum and fidgeted and made no effort to get along and be hired.15 At the end of the interview Blauvelt said that under W & M the chief building engineer would be responsible for landscaping, garages, cleaning, and common area condition. Morra was interviewed by Heller and Blauvelt on December 8, 2000.16 Morra testified that his interview took place after the interviews of the other employees. He recalled that the W & M executives told him that they wanted the chief engineer to over- see landscaping, security, and cleaning. Morra said that First Stamford Place was too large a property for the chief engineer to take on those additional responsibilities and that Bonos’ talents were better used to deal with the mechanical aspects of the property. Morra recalled that Heller and Blauvelt told him that Bonos would not fit the W & M philosophy. Morra re- called saying that it would be a big mistake not to hire Bonos. During this meeting Heller told Morra that he fit the W & M “philosophy” or “mold.” Blauvelt recalled that at the end of the interview he told Morra that if he were hired by W & M the 15 Bonos impressed me as an intelligent, careful, and precise person. He had a quiet and unagressive demeanor. 16 Morra’s recollection of the date was refreshed by his affidavit given on March 12, 2001 which placed the interview on December 6. However, he also testified that it was on December 8 and Heller had notes which placed the interview on December 8. building engineers would have a different scope of responsibil- ity from the narrow realm in which they were currently trained. Durels testified that after Heller interviewed Morra in early December he considered Morra a candidate for hire as property manager. In fact, Durels testified, until December 20 he him- self had intended to interview Morra for the position. Durels described his hiring decisions in detail. On December 19, ac- cording to Durels, Heller reported his findings about the engi- neering and maintenance staff. Heller told Durels that there was too much staff and there was little productivity. He said that the general appearance of the property was not that great. The staff was lame and they lacked drive. They did not take the initiative to correct problems when the problems were not within their own job descriptions. Heller believed that Bonos was not a strong supervisor and that he did not have certain information about the property and did not care that he lacked the information. Durels also testified that he had a gut instinct that Bonos was not a strong individual and he held against Bonos the fact that he had made Schmitt his assistant chief engineer. Heller told Durels that of the engineering staff there were maybe two or three employees to whom offers should be made. These were Benitez and Perez and possibly Liam McGoohan.17 Durels telephoned Morra and told him that he was being considered by W & M for the position of building manager and that they wanted his input in their decisions on staffing. Durels informed Morra of Heller’s evaluations and told Morra which employees were going to receive job offers. Morra replied that Durels was making a mistake and that they should hire the entire staff. When Durels told Morra that Bonos was not the strongest individual Morra said he “did not really” disagree. Morra said that he would call Schom to see whether W & M had permission to make job offers to TrizecHahn employees at that time. The next day, according to Durels, Morra reported to Durels that W & M was not allowed to extend any job offers because of a concern that those em- ployees who were not hired might resort to vandalism.18 Durels and Morra disagreed about the desirability of not informing the employees about their future employment and whether TrizecHahn was making the right decision. When Durels asked Morra what he would do in Durels’ place Morra said he would not accept a job with W & M and ended the conversation. Durels called Morra back and left a message saying that this was a stressful time and that he still wanted to talk to Morra about future employment, but Morra did not return the call. Morra testified that around December 20 Durels and Heller telephoned him and conducted a conversation by speakerphone. Durels told Morra that he wanted Heller to come to the property and inform Perez and Benitez that they would be offered jobs with W & M. Morra told Durels that he was hiring the least experienced and least senior employees on the property. Morra said that he would have to get permission for W & M to make the job offers. When Morra spoke to his superior, Jerry Schom, 17 Durels testified that at some point Heller decided that the garage sweeper and trucks had not been well maintained by McGoohan and W & M decided not to hire him. 18 Durels testified that there was no sabotage before the closing of the property in January. W & M PROPERTIES OF CONNECTICUT 173 the latter said that he would not yet permit the employees to be informed that they were not all being hired. Schom said that real estate deals can fall through at the last minute and that in the meantime he had a building to run. Schom and Morra were concerned that some employees would not be enthusiastic about doing their jobs if they knew they would not be going to work for W & M. They were concerned with keeping the ten- ants happy. When Morra reported to Durels that TrizecHahn did not want W & M to tell the employees whether they would have jobs or not Durels was quite upset and he asked Morra whether he would do things differently if he were a W & M manager. Morra said he would handle the situation in just the same way. At some point Durels became more irate and Morra hung up the phone. Morra testified that up to that day he had been expecting a job offer from W & M but that when he hung up on Durels he knew it was the end of that possibility. Heller testified that later in the week during which he con- ducted the interviews with the TrizecHahn employees he in- structed Blauvelt to place newspaper advertisements for a full complement of six engineers and one building manager. At that time, he wanted to hire Perez, Benitez, and McGoohan so he would need to hire three engineers at a minimum. At some point later Heller investigated McGoohan’s work and he decided that McGoohan had not been maintaining the garage vehicles prop- erly and that the garage drains had not been cleaned and he in- formed Durels that they had only two strong candidates for hire. On December 19, 2000 Heller was present when Durels tele- phoned Morra to get his reaction to their decision to hire only Perez and Benitez. Durels asked Morra whether Perez and Benitez would work hard and Morra replied that they would. Morra also said that W & M should consider hiring the entire staff. Heller did not recall the rest of the conversation. As of the date of this conversation Morra was still being considered for the job of building manager according to Heller. D. W & M Offers Jobs to Perez and Benitez and Hires Outside Employees Heller testified that he had a negative view of the TrizecHahn staff based on what he had seen of the property but that he got a positive view from his interviews of Perez and Benitez. He was impressed by their qualifications, desire to work and desire to be motivated. The primary reason for offering them positions with W & M was that they wanted to learn and wanted to improve themselves. These two employees were the ones who struck him as being sincere, intelligent and wanting to move forward. Heller believed that Perez and Benitez had a positive work ethic. How- ever, he acknowledged that he had never seen them working. Indeed, when he saw the engineering and maintenance staff sit- ting around the engineering office doing nothing the group could have included Perez and Benitez. On January 16, 2001 W & M offered a job to Benitez and he accepted. Perez testified that about 3 weeks after his interview with Heller and before the closing of the sale he met with Blauvelt. Blauvelt offered him a job working for W & M as a building engineer at his current rate of pay. Blauvelt said W & M was a good company. After 1 year Perez would receive benefits such as a 2-week vacation, he would get a bonus at Christmas and W & M sends it employees to school. Although Blauvelt men- tioned something about an Oxford medical plan he did not re- view any details about it with Perez. Perez stated that Blauvelt told him that it would not be a union job. Perez asked whether W & M would ever get the Union and Blauvelt replied “no”, that the owners did not want a Union. Perez told Blauvelt that he would consider his offer. After discussing the matter with his wife, Perez telephoned Blauvelt and left a message thanking him for the offer but saying that he was declining because he wanted to stay with the Union. Perez testified that he had 8 years in the union pension and annuity plan and that he did not want to lose his medical benefits. His decision was based on his desire to stay in the Union and on the fact that Blauvelt had told him it would not be a union job because the owners did not want it. Perez had told his coworkers about the job offer from W & M. All of them, including Bonos and Morra, congratu- lated him. Perez did not tell them that Blauvelt said the owners did not want a union. After Perez had testified in the instant hearing Blauvelt was called by the Respondent to testify that he had made a job offer to Perez and he recalled that Perez had been quiet and showed no enthusiasm, saying that he would speak to his family. Blau- velt stated that in this meeting nothing was mentioned about any union. Durels testified that after Heller reported to him on Decem- ber 19, 2000 about his evaluations of the TrizecHahn staff, Durels instructed him to begin placing advertisements in order to hire engineering and maintenance staff. Durels testified that after Heller reported to him about the employee interviews and after he called Morra the Respondent placed ads for mainte- nance and engineering employees. However, the record shows that on December 12, 2000 W & M faxed a request to place a classified advertisement in “The Stamford Advocate” for the position of building engineer with experience in heat pumps, towers, chillers, controls and commercial HVAC systems. Durels testified that by December 7 or 8 he had made a deci- sion to transfer W & M employee Randy Morse to First Stam- ford Place as the new chief engineer. This discrepancy in Re- spondent’s case has not been clarified. It is clear that Durels’ recollection cannot be correct about this sequence of events. The discrepancy raises unanswered questions about when the Respondent actually decided whom it would hire from the ex- isting staff. The parties stipulated that Morse began work at First Stam- ford Place on January 19, 2001. The parties stipulated that on January 2, 2001 Enrique Irizarry began work at a W & M prop- erty in Norwalk and on January 19 he was transferred to First Stamford Place as assistant chief engineer. The parties stipu- lated that on January 22, 2001 Charles Hardy began work as a maintenance mechanic and Michael McDowell began work as an engineer. The parties stipulated that on February 12, 2001 Adalberto Sotillo began work as a maintenance mechanic. Sotillo’s resume shows that he was interviewed on January 25. His experience is listed as automobile mechanic and construc- tion worker installing tiles, pouring cement, painting and in- stalling drywall. Blauvelt testified that Sotillo’s mother works in the New York office of Respondent. At first Blauvelt stated that Sotillo was an auto mechanic with HVAC knowledge but DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 174 later he corrected this statement and said that Sotillo had no HVAC experience. Blauvelt testified that he interviewed and hired McDowell, Harvey, and Irizarry. Blauvelt said that he felt comfortable about offering jobs to those three men because “they were a perfect fit, they had the background . . . the personality. Very courteous, very polite.” III. DISCUSSION AND CONCLUSIONS I credit Perez that Blauvelt told him the job with W & M would not be a union job. I credit Perez that when he asked Blauvelt whether W & M would ever get the Union, Blauvelt said that the owners did not want a union. Perez impressed me as an intelligent, careful, and responsive witness and he had no basis for prejudice against the Respondent. Heller had noted in his interview of Perez that he would like to stay at First Stam- ford Place. It is thus entirely credible that after hearing from Blauvelt during the job offer meeting that the owners did not want a union, Perez should change his mind following a discus- sion with his wife. I credit Morra that Blauvelt told him that if anyone was going to work for W & M it would have to be non- union. I credit Morra that when he responded that the TrizecHahn employees belonged to the Union. Blauvelt said it did not matter because they would have to be nonunion or they wouldn’t be hired. Morra had a vivid recollection of this inci- dent, his demeanor while testifying about it was convincing and his description of it impressed me as being truthful. I do not credit Blauvelt’s denial that this conversation took place. Based on Blauvelt’s statements to Perez and Morra I conclude that the Respondent did not want to deal with the Union and did not want to hire employees who would be part of a bargaining unit represented by the Union at First Stamford Place. By informing Perez that the owners did not want a union and that if he accepted a job it would be nonunion the Respondent conditioned his employment on refraining from union activities and Respondent thus violated Section 8(a)(1) of the Act. It is undisputed that Heller asked the employees whether they were Local 30 members and for how long they had belonged to the Union. Heller admitted that he asked Perez how long he had been a member of the Union. Heller did not testify that Perez had spoken of belonging to the Union before he asked his ques- tion. Heller’s notes show that Perez joined the Union in 1993. Similarly, McGoohan testified that Heller asked him how long he had been a member of the Union. The Board has long held that employer questions during a job interview which relate to union membership or sympathies are inherently coercive, without ac- companying threats, even if the applicant is ultimately hired. Bighorn Beverage, 236 NLRB 736, 751 (1978), enfd. 614 F.2d 1238 (9th Cir. 1980); Challenge-Cook Brothers, 288 NLRB 387, 397 (1988); Electro-Tec, Inc., 310 NLRB 131, 134 (1993). Heller conducted these interviews in order to evaluate TrizecHahn employees for future employment. In addition to highly relevant information relating to experience and education Heller sought information about the employees’ union member- ship. This question reasonably gave the impression that W & M would also consider membership in Local 30 in deciding whether to hire the men. By asking Perez and McGoohan how long they had been members of the Union the Respondent violated Section 8(a)(1) of the Act. The Respondent asserts that it based its failure to offer jobs to most of the engineering and maintenance employees on the unsatisfactory physical condition of First Stamford Place. Thus, Respondent’s witnesses marshaled many details to show that the engineering and maintenance employees were not do- ing their jobs. However, I find many of these allegations un- convincing. Heller testified that many lights were out and he blamed McGoohan for failing to replace light bulbs. However, Blauvelt testified that Benitez had a scope of work that mainly involved changing light bulbs yet the Respondent offered a job to and hired Benitez. Heller saw 3 leaking faucets and he blamed Bonos for this condition. Yet Heller’s notes show that Benitez, whom Respondent hired, performed general mainte- nance and plumbing at the property. Heller testified that he investigated whether McGoohan was truthful when he claimed to have serviced the garage trucks and cleared debris. Heller said that because McGoohan had not done those jobs well he did not offer him a job. But Heller did not investigate whether Perez or Benitez had done their jobs well and W & M offered jobs to both of these men. Heller was dissatisfied with the con- dition of the roof and skylights and he blamed Bonos although Bonos told him that these items were not the responsibility of his crews and although it was Morra who directed the outside contractors. In fact, when Heller asked Morra about the roof the latter said he would answer all his questions. Heller criti- cized Bonos for security failings such as open security gates in the parking lot and unlocked doors in the garage. But Heller’s notes show that he knew the security function was contracted out. Heller and Durels were highly critical of the condition of the cafeteria, the exercise facilities, and the décor of the hall- ways and other public areas. Heller and Durels blamed Bonos and his crew for these failings. But Heller’s notes show that he knew that Bonos did not “overview” the fitness center or the food service center. And the W & M executives cannot seri- ously have believed that the chief engineer had any responsibil- ity for making interior design decisions. Both Heller and Durels expressed dissatisfaction with the work done by the cleaning contractor and they blamed Bonos for this failing al- though Bonos told them that he had no responsibility for clean- ing. Heller criticized Bonos, saying that even if Bonos had not been responsible for the work of the outside contractors he should have raised issues about their work with Morra. How- ever, Heller admitted that he never asked whether Bonos had indeed done just that. Heller stated that whenever he went to the engineering office he saw employees sitting around and he decided that they did not work hard enough. But Heller admit- ted that he had never noted which individuals were sitting around and the group may have included Perez and Benitez to whom the Respondent offered jobs. Heller also acknowledged that he never asked whether the men were conducting a meet- ing or were on an authorized break. I conclude that the criticisms discussed above are not based on the facts as known by Heller and Durels but that they were advanced as a pretext for not offering jobs to employees repre- sented by the Union. W & M PROPERTIES OF CONNECTICUT 175 Heller summed up his findings by saying, “I took note of and felt that no one really cared about the property . . . through the maintenance that should have been done by Mr. Morra and the engineering staff.” Durels summed up his conclusions by say- ing the property was not well supervised by TrizecHahn and the managers on site including Crawford, Morra and the mechan- ics. The record is clear that Morra, as property manager of First Stamford Place, was responsible for the work of the engi- neering staff and that all of the outside contractors reported to him. Yet, despite the fact that Durels and Heller purportedly were dissatisfied with the condition and management of the property and despite the fact that they both voiced a plethora of criticisms at the instant hearing, they were willing to hire Morra. Indeed, up to December 20, 2000, just a few weeks before the closing of the sale, Heller and Durels considered Morra a candidate to keep his job under the new W & M own- ership even though Heller said he had decided by the end of October that he had a dim view of the way First Stamford Place was maintained. Although during their last exchange Morra told Durels that he would not accept a job with W & M, Durels called back and left a message telling Morra that he still wanted to discuss Morra’s future employment. The precipitating event that ended Morra’s chance for a final interview and job offer from W & M was his action in hanging up on Durels and not returning Durels’ call after Durels clashed with him over the treatment of the unit employees. There is only one conclusion to be drawn from the paradox that while the Respondent blamed the engineering employees for all the perceived prob- lems, even the ones over which they had no direct responsibil- ity, Respondent absolved the property manager who exercised day-to-day control over the engineering department’s mission. The inescapable conclusion is that Heller and Durels wanted to hire Morra because they actually believed that he was a good manager and the problems they saw at the property were not so grave that a change in direction from the top could not correct them. If the litany of problems Heller and Durels recited on the instant record had been as extensive and serious as they would have me believe then they could not have failed to blame Morra and they could not have failed to mark him as the first to leave when they took over. If Durels and Heller had truly been con- vinced that First Stamford Place was badly served by its engi- neering and maintenance employees they would have blamed Morra, the on-site property manager who was Bonos’ direct supervisor. I conclude that Heller and Durels were not credible in describing the extent of the problems at the property and laying them at the door of the engineering department. I con- clude that the detailed attribution of all problems to the engi- neering and mechanical employees was a pretext employed by the Respondent so that it could avoid hiring employees repre- sented by the Union. It is not otherwise possible to reconcile Respondent’s willingness to talk to Morra about staying on after the sale with the Respondent’s unwillingness to keep the employees hired, promoted and directed by Morra.19 Because I find that Durels and Heller exaggerated their tes- timony and inaccurately portrayed their findings I also find that 19 Morra had praised these employees to W & M and had urged Re- spondent to keep all of them. their testimony is less credible than that of the individual unit employees who testified before me. The unit employees were not as well spoken as Durels and Heller and they were less sophisticated about the implications of the questions posed to them. The employees may not have framed their answers with precisely the words that would be most advantageous to them. But I formed the impression that they were telling the truth. Heller and Durels emphasized that they were looking for long-term employees who took the initiative, who had learned more than one skill, who had achieved certain levels of educa- tion and licensure and who had generally demonstrated that they wanted to expand their horizons educationally and in the workplace. Durels said it was his hope to retain as many of the TrizecHahn employees as possible in order to ensure a smooth transition when W & M took over. Heller cited his admiration for Benitez who, while working as a security guard, had gained enough skills to qualify as an apprentice maintenance me- chanic. Heller praised Perez and offered him a job because he had painting, carpentry, and welding skills in addition to sta- tionary engineering and mechanical experience. I find that the Respondent did not apply the standards it an- nounced in selecting among the unit employees for hire. The Respondent offered a job to and hired Benitez. Benitez had none of the certificates or licenses held by any of the other employees, he had fewer skills than any of his fellow workers and he had expressed his intention to become a member of the Bridgeport police force because being a building mechanic was not his chosen career. Thus, Benitez failed the tests of potential long tenure, education, experience, and licensure enunciated by the Respondent. The Respondent did not offer a job to Bonos. Bonos had worked his way up at First Stamford Place from apprentice to chief engineer, obtaining the HVAC license, a HAZMAT li- cense, the CFC license and an incinerator certificate. Bonos had taken some college courses. Morra, Bonos’ direct supervi- sor whom Durels and Heller considered a candidate for reten- tion by W & M, had praised Bonos and urged that he be kept on the job. As discussed above, I have discredited the long list of complaints against Bonos by Respondent and I have found that they were pretexts. Bonos thus fit the profile of the ideal em- ployee set forth by the Respondent. He had shown initiative in working his way up the chain of command by obtaining profes- sional and academic training, he was running a department deemed a success by his immediate supervisor, and he wanted to work at First Stamford Place. Bonos was a hard worker as shown by Heller’s notes that he was on duty from 7 a.m. to 6 p.m. I find that the other reasons cited by the Respondent for failing to offer him a job, that he was not “strong”, that he chewed gum and that he did not try to get along are vague and unconvincing.20 Bonos testified that he did not get a good feel- ing about his job prospects in the interview with Heller and that Heller asked questions in a manner he found intimidating. Bonos was right. The Respondent did not want Bonos. I find that the Respondent did not offer a job to Bonos because he was a member of Local 30. 20 Bonos was being hired to give expert direction to a number of en- gineering and mechanical employees not to lead a platoon into war. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 176 The Respondent did not offer a job to Cassidy. Yet Cassidy met the Respondent’s criteria: He wanted to keep working at First Stamford Place, he had shown initiative in obtaining his apprentice training during his off duty hours while working as a New York City firefighter, Cassidy held the HVAC and CFC licenses, and Heller’s notes show that Cassidy’s main duties were to maintain the physical plant and test the fire alarm sys- tem. Heller testified that he valued employees with different types of skills. Cassidy had worked in law enforcement and then performed the difficult and specialized duties of a New York City firefighter. Surely these qualities fit the description of the ideal employee established by Durels and Heller. I do not credit Heller’s testimony that Cassidy was “coasting” and did not want too much work. Heller did not give any convinc- ing details to support these conclusions and I find that this tes- timony was a pretext as was his testimony, contradicted by his own notes, that Cassidy mainly responded to tenant heat calls. Further, Blauvelt said Benitez was a good candidate because, as a future police officer, he would be trustworthy. Cassidy is a former police officer, thus meeting the Respondent’s stated criterium for trustworthiness. The Respondent’s Brief faults Cassidy for saying that he could not recall that a fire system in one of the buildings was not working. But the Brief cites no testimony that this was in fact the case. I find that the Respon- dent did not offer a job to Cassidy because he was a member of Local 30 and served as the shop steward. The Respondent did not offer a job to McGoohan. McGoo- han participated in an apprenticeship program, he had taken some college courses, he had his CFC certification, and he was studying to take the HVAC exam soon. McGoohan was ambi- tious and he wanted to follow in his father’s footsteps as a long- term building engineer. In fact, Heller wrote in his notes that McGoohan’s father had been a Local 30 engineer for many years. As discussed above, Heller blamed McGoohan for light bulbs being out even though Benitez also changed light bulbs. Heller investigated McGoohan’s work on the trucks and drains even though he did not investigate the work of Perez or Benitez to whom W & M made job offers. Heller admitted that he did not know whether Perez or Benitez were also assigned to clean the drains. McGoohan fit the description provided by the W & M managers of an ideal employees: he wanted to advance edu- cationally and in his trade and he wanted to continue working at First Stamford Place. I do not credit the Respondent’s stated reasons for deciding not to hire McGoohan because I find that they are pretexts. I find that the Respondent did not offer a job to McGoohan because he was a member of Local 30. The Respondent did not offer a job to Stofko. Stofko ful- filled work orders as a maintenance mechanic and Heller’s notes show that he also had painting and electrical skills. Stofko fit the W & M criteria for having experience in the field, for wishing to work at First Stamford Place and for having more than one skill that could be useful to the Respondent. It is true that Stofko did not seem to be ambitious to gain engineer- ing licenses or education. However, that failure did not prevent the Respondent from hiring Sotillo who had none of the experi- ence or skills possessed by Stofko, whose resume is silent as to his educational achievements and as to whom there is not a word of any future ambitions. On the day that he was hired by W & M Sotillo had not worked 1 hour as a maintenance me- chanic. I can find no basis in the record to prefer Sotillo, an inexperienced and totally green employee, to Stofko who had been performing his job since 1993 and who was recommended by Morra. I find that the Respondent did not offer a job to Stofko because he was a member of Local 30. A new employer which purchases the assets of an ongoing business is not obligated to hire any of the predecessor’s em- ployees. However, the new employer may not discriminate on the basis of union membership when it makes its hiring deci- sions. I have found above that the Respondent did not want to hire union members and did not want to deal with the Union, and I have found that the Respondent’s stated reasons for fail- ing to hire the employees were pretexts. The Respondent did not apply its own criteria for hiring, clearly demonstrating that the employees would have been offered jobs but for their mem- bership in Local 30. I find that the Respondent’s failure to hire Bonos, McGoohan, Cassidy, and Stofko was a violation of Section 8(a)(3) of the Act. The General Counsel’s argument that the Respondent has an obligation to recognize and bargain with Local 30 is founded on NLRB v. Burns, 406 U.S. 272 (1972), and Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). As the Court explained in Fall River Dyeing, these two cases hold that a “new employer has an obligation to bargain with [the employ- ees’] union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor.” 482 U.S. at 41. There can be no serious dispute in the instant case that there is a substantial continuity between W & M and TrizecHahn in running the business at First Stamford Place. On the day that W & M purchased the three buildings the tenants remained on the property and the new owner employed engineering and mechanical employees to maintain, repair and operate the exist- ing physical plant at First Stamford Place. W & M “acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor’s business operations.” Golden State Bottling Co. v. NLRB, 414 U.S. 168, 184 (1973). Here, the Respondent offered jobs to only two of the seven employees in the engineering and mechanical unit and only one employee was hired. However, I have found above that W & M failed to offer positions to an additional four of these em- ployees in order to avoid dealing with the Union. If W & M had offered jobs to Bonos, Cassidy, Stofko, and McGoohan it would have hired a majority of the employees in the bargaining unit employed by its predecessor. Further, Perez testified that his only reason for declining Respondent’s job offer was Blau- velt’s statement that it would not be a union job and that the owners did not want the Union. It is well established that an employer who fails to hire the predecessor’s employees in order to avoid dealing with the employees’ representative will nevertheless be deemed a suc- cessor under Burns. As the Board held in Sierra Realty Corp., 317 NLRB 832, 835 (1995), when “an employer is found to have engaged in a discriminatory refusal to hire its predeces- sor’s employees, the Board infers that all the former employees would have been retained, absent the unlawful discrimination.” W & M PROPERTIES OF CONNECTICUT 177 Further, “the Board presumes that the union’s majority status would have continued.” In this case I have found that the Re- spondent failed to offer jobs to Bonos, Cassidy, Stofko, and McGoohan because they were members of Local 30. Because the Respondent failed to offer them jobs for discriminatory reasons it must be presumed that they would have been hired and that Local 30’s majority status would have continued. There is no basis in the record for finding that the appropriate unit of building service employees employed by the Respon- dents is different from the unit under the predecessor employer. I find that the Respondent W & M is a successor employer to TrizecHahn and that it was obliged to recognize Local 30 as the collective-bargaining representative of the employees in the appropriate unit. The Respondent admits that it has not recog- nized and bargained with Local 30 as the representative of its employees. I find that this constitutes a violation of Section 8(a)(5) of the Act. It is undisputed that W & M set the wages, hours, and work- ing conditions of the unit employees without negotiating with Local 30. A successor employer is ordinarily free to set the initial terms on which it will hire the predecessor’s employees, but this rule does not apply when the successor has unlawfully failed to hire those employees because of their union affiliation. In this case, Respondent was not entitled to set the initial terms of employment without consulting Local 30. Thus I find that Respondent further violated Section 8(a)(5) of the Act by uni- laterally changing terms and conditions of employment without notice to and bargaining with Local 30. Galloway School Lines, Inc., 321 NLRB 1422, 1425 (1996). CONCLUSIONS OF LAW 1. By informing an employee that if he accepted a job it would be nonunion, thereby conditioning his employment on refraining from union activities, the Respondent violated Sec- tion 8(a)(1) of the Act. 2. By interrogating employees concerning their union mem- bership the Respondent violated Section 8(a)(1) of the Act. 3. By refusing to hire employees of the predecessor em- ployer because they were members of Local 30 and to avoid an obligation to bargain with Local 30 the Respondent violated Section 8(a)(3) and (1) of the Act. 4. By refusing, as the successor employer, to recognize and bargain with Local 30 as the collective-bargaining representa- tive of its employees and by unilaterally changing terms and conditions of employment without notice to and bargaining with Local 30 the Respondent violated Section 8(a)(5) and (1) of the Act. 5. The appropriate unit for bargaining is: All full-time and regular part-time journeymen and apprentice stationary engineers, maintenance mechanics and utility workers employed at First Stamford Place, but excluding of- fice clerical employees, guards, professional employees and supervisors as defined in the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. The Respondent having discriminatorily failed to offer em- ployment to Stephen Bonos, Henry Cassidy, Richard Stofko, and Liam McGoohan, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, computed on a quarterly basis from January 19, 2001 to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). On request, the Respondent shall bargain with the Union concerning wages, health and pension benefits and other terms and conditions of employment. In order to remedy the Respon- dent’s unlawful unilateral changes the Respondent shall, on request of the Union, rescind any changes in employees’ terms and conditions of employment unilaterally effectuated and make the employees whole by remitting all wages and benefits that would have been paid absent the Respondent’s unlawful conduct, until the Respondent negotiates in good faith with the Union to agreement or to impasse. Employees shall be made whole in the manner prescribed in Ogle Protection Service, 183 NLRB 683 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as prescribed in New Horizons for the Retarded, supra. The Respondent shall also make whole its unit employees by making all delinquent employee benefit fund contributions, including any additional amounts due the funds, in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). In addition, the Respondent shall reimburse unit em- ployees for any expenses ensuing from its failure to make the required contributions, as set forth in Kraft Plumbing & Heat- ing, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981), such amount to be computed in the manner set forth in Ogle Protections Service, supra, with interest as prescribed in New Horizons for the Retarded, supra. [Recommended Order omitted from publication.]