Triple A Maintenance Corp.

44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Triple A Maintenance Corp. and Local 32B-32J, Service Employees International Union, AFL- CIO and Local 732, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract. Cases 29-CA-11100 and 29-CA-11487 26 February 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 23 December 1985 Administrative Law Judge Joel P. Biblowitz issued the attached deci- sion. The General Counsel, the Charging' Party, and the Respondent filed exceptions and supporting briefs. The Respondent filed an answering brief to the General Counsel's exceptions, the Charging Party filed an answering brief to the Respondent's exceptions, and the General Counsel filed a re- sponse to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and i The General Counsel and the Charging Party have excepted to some of the judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings We correct the judge's inadvertent error in stating that Local 32B-32J, Service Employees International Union (Local 32B) began organizing the employees at the Police Operations Bureau (POB) in mid-1984, it is clear from the record that such organizing actually began in mid-1983 We also correct the judge's inadvertent error in referring to Joseph Metcalf, the Respondent's director of operations, as the Respondent's area supervisor. The General Counsel excepts, inter alia, to the judge's failure to find that the Respondent acquired the cleaning contracts for John F Kennedy Airport Buildings 141, 80, and 20 as part of the same bid package with the International Arrivals Building (TAB) in 1982 and with the IAB and POB in 1984 We find, based on record evidence, that buildings 141, 80, and 20 were acquired by the Respondent as part of the IAB bid package in 1982 and as part of the IAB and POB bid package in 1984. We further find that the employees at buildings 141, 80, and 20 were represented by Local 32B, and that the Respondent recognized Local 32B at these build- ings These findings, however, do not affect the results of our decision regarding the Respondent's failure to hire the predecessor employer's em- ployees at the POB and to recognize Local 32B at that location. Finally, we do not rely on the judge's statement that the Respondent defended its transfer of IAB employees to the POB on the grounds that there was a large number of experienced employees at the IAB. The record indicates that the Respondent defended its actions at Ill Living- ston Street on such grounds, but that it did not defend its actions at the POB on such grounds conclusions2 and to adopt the recommended Order as modified.3 We agree with the judge, for the reasons stated by him, that the Respondent violated , Section 8(a)(5) and (1) of the Act by instituting unilateral changes affecting the terms and conditions of em- ployment of employees at its Flatbush Avenue lo- cation without bargaining with Local 32B-32J, Service Employees International Union (Local 32B). Contrary to the judge, however, we find that the Respondent further violated Section 8(a)(5) and (1) of the Act by withdrawing recognition of Local 32B at Flatbush Avenue for the reasons set forth below. Clifton Boone, an employee at the Respondent's Flatbush Avenue facility, testified that about 2 or 3 October 1984 the Respondent's area supervisor, Michael Metcalf, and Operations Manager Bernie Ross met with the employees at the facility. Ross told the employees that "as of today" the Respond- ent was no longer recognizing Local 32B and that 2 In adopting the judge's conclusion that the Respondent did not vio- late Sec 8(a)(3) and (1) of the Act by failing and refusing to hire the predecessor emploYers' employees at the POB and 111 Livingston Street, we particularly rely on the lack of evidence that the Respondent's hiring practice was discriminatorily motivated The complaint also alleged that the Respondent violated Sec. 8(a)(5) and (1) of the Act by its refusal to comply with established past practice and its contractual obligations as set forth in art. I of the Independent Contractor's Agreement (ICA), which provided for a citywide bargain- ing unit, when it failed to recognize Local 32B at its newly acquired sites at the POB and 111 Livingston Street and failed to hire the predecessor's employees at those sites The judge did not address this allegation in his decision Regarding the Respondent's alleged refusal to comply with ICA art. I, we note that the ICA had expired on 31 December 1983, i e., before the alleged dates that the Respondent acquired the contracts at the two new sites. Since a recognition clause is not a mandatory subject of bargaining, NLRB Y. Borg-Warner Corp., 356 US 342 (1958), we find that the Respondent did not violate Sec. 8(a)(5) by not adhering to ICA art. I when it acquired the contracts at the two new sites Chemical Workers v Pittsburgh Glass, 404 US 157 (1971) We also note that the practice of having an employer recognize Local 32B at any newly ac- quired site was not always followed For example, when the Respondent acquired the contract for the IAB in 1982, Local 32B declined to repre- sent the IAB employees because they were already represented by the Teamsters, with whom Local 32B had a no-raid pact. The no-raid pact was not referred to in the ICA, and there is no evidence that the Re- spondent had been aware of its existence. Furthermore, after obtaining the IAB contract, the Respondent was awarded the bid on Brooklyn Union Gas Service Stations The Teamsters immediately organized the employees there, and the Respondent entered into a contract with the Teamsters for that job There is no evidence that Local 32B objected to the Respondent's recognition of the Teamsters Thus, we find that the Respondent's failure to follow the alleged past practice in the instant case does not warrant a finding that it violated Sec. 8(a)(5) and (1) 3 The Charging Party excepts to the judge's failure to order that the Respondent make its employees whole for any losses suffered as a result of the cessation of payment for unused sick leave days at the end of each year We find merit in this exception and shall modify the judge's recom- mended Order accordingly. The General Counsel excepts to the judge's failure to order that the notice to employees be printed in Spanish and English The General Counsel requested at the hearing that the notice be printed in both lan- guages The General Counsel has, however, failed to show that there are a substantial number of Spanish-speaking employees Thus, we leave to the compliance stage of this proceeding the determination of whether the notice should also be printed in Spanish 283 NLRB No. 9 TRIPLE A MAINTENANCE CORP. 45 they were "no longer going by the'same rules" as- they had under Local 32B. Ross then proceeded to list various changes in the employees' benefits, in- cluding reductions in sick days, holidays, and vaca- tion time. Later that day, Metcalf told Boone that some of the changes would apply only to new em- ployees hired after 2 October 1984. The following day Metcalf distributed a document listing the changes in benefits, including, inter alia, that the Respondent would no longer contribute to the Local 32B welfare fund, that there would be a re- duction in benefits for new hires, and that employ- ees would no longer be paid for unused sick days at the end, of the year. Boone testified that shortly thereafter his pay- check stubs indicated that Local 32B dues were not being deducted from his pay, so he and his fellow employees paid their dues directly to Local 32B. Boone's employment with the Respondent termi- nated on 18 November 1984, but he learned from the employees still at Flatbush Avenue that at some later time the Respondent resumed deducting Local 32B dues. Ronald Atkinson, the Respondent's , president, testified that about '1 October 1984 Metcalf in- formed him that he had told the Flatbush Avenue employees that the Respondent no longer recog- nized Local 32B. Atkinson replied that he had never authorized Metcalf or anyone else to say that, that it was not true, and that they had always recognized Local 32B at that location and would continue to do so. Atkinson then prepared the doc- ument, referred to above, which was distributed to the Flatbush employees by Metcalf the day follow- ing their meeting with Metcalf and Ross. Atkinson testified that the Respondent has con- tinued to recognize Local 32B at the Flatbush Avenue location; has continued to contribute to the Local 32B pension fund for all the, employees; and has continued to deduct Local 32B dues from its Flatbush Avenue employees, although there was a brief delay in these deductions in late September or early October 1984 due to a turnover of clerical and managerial employees. According to Atkinson, the dues deduction problem was corrected shortly thereafter, however, and any delinquencies were remitted to Local 32B. The judge dismissed the allegation that the Re- spondent violated Section 8(a)(5) and (1) by with- drawing recognition of Local 32B. He found that Atkinson, on learning that Ross and Metcalf had told the employees that the Respondent was with- drawing recognition, had the remarks corrected and that the Respondent has since continued to recognize Local 32B at locations where it is the collective-bargaining representative of the Re- spondent's employees. Contrary to the judge, we find that the Respond- ent withdrew recognition from Local 32B at its Flatbush Avenue location and thus violated Sec- tion 8(a)(5) and (1). Atkinson's alleged repudiation of the statement that the Respondent was with- drawing recognition was not effective under Passa- vant Memorial Area Hospital, 237 NLRB 138 (1978). Passavant holds that in order for a repudi- ation to be effective it must meet the following standards: [It] must be "timely," "unambiguous," "specif- ic in nature to the coercive conduct," and "free from other proscribed illegal conduct." . .. Furthermore, there must be adequate pub- lication of the repudiation to the employees in- volved and there must be no proscribed con- duct on the employer's 'part after publication. ... And, finally . . . such repudiation . ' . . should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. Passavant, 237 NLRB at 138-139, quoting from Scott & Fetzer Co., 228 NLRB 1016, 1024 (1977) (and cases there cited). In the instant case, there was no "adequate publi- cation of the repudiation to the employees in- volved." Although Atkinson,told Metcalf, a super- visor, that the Respondent was not withdrawing recognition from Local 32B, there is no evidence that the employees were ever so informed. The document prepared by Atkinson which was distrib- uted to the employees failed to state that the Re- spondent was continuing to recognize Local 32B. Moreover, there was further proscribed conduct by the Respondent, i.e., various unlawful unilateral changes in terms and conditions' of employment. Furthermore, such unilateral changes, as well as the cessation of dues checkoff, reinforced the state- ment that recognition had been withdrawn. Finally, there was no contact between the Respondent and Local 32B' until 26 December 1984, when the Re- spondent wrote a letter to Local 32B suggesting that they meet. Under these circumstances, we find that the Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from Local 32B at its Flatbush Avenue location from about 1 October to 26 December 1984. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Triple A Maintenance Corp., Brooklyn, 46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD New York, its officers, agents, successors, and -as- signs, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(a) and re- letter the subsequent paragraphs. "(a) Withdrawing recognition from Local 32B as the collective-bargaining representative of its em- ployees at its Flatbush Avenue location." 2. Substitute the following for paragraph 2(c). "(c) Make its employees whole for any losses suffered due to the reduction in vacation and sick leave days and to the discontinuance of payment for unused sick leave days at the end of the year in the manner set forth in the remedy section of the judge's decision." 3. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT withdraw recognition from Local 32B-32J, Service Employees International Union, AFL-CIO as the collective-bargaining representa- tive of our employees at our Flatbush Avenue lo- cation. WE WILL NOT unilaterally change the terms and conditions of employment of our employees who are represented by Local 32B without prior consul- tation and negotiations with Local 32B, the collec- tive-bargaining representative of those employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL rescind the unilateral changes made about 1 October 1984 and restore the terms and conditions - of employment of our employees who are represented by Local 32B as they existed prior to 1 October 1984, and WE WILL make whole these employees for any losses they, suffered due to our unilateral changes regarding their health and insur- ance coverage, paid leave for birthdays and health center visits, vacation and sick days, payment for unused sick leave, and starting salary. TRIPLE A MAINTENANCE CORP. Stanley Israel, Esq. (Kliegman, Goldstein, Israel & Cooper), for the Respondent. Leroy Walker, for Local 32B-32J, the Charging Party. Herbert K Lippman, Esq., for Local 732, Party to the Contract. DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ, Administrative Law Judge. This case was tried before me in Brooklyn, New York, on 17, 18, 19, and 25 July 1985. The complaint in Case 29-CA- 11100 issued on 22 October 1984,1 and was based on an unfair labor practice charge filed by Local 32B-32J, Service Employees International Union, AFL-CIO (Local 32B) on 15 March; this complaint alleges that Triple A Maintenance Corp. (Respondent) violated Sec- tion 8(a)(1), (2), (3), and (5) of the Act when it engaged in the following conduct at two distinct locations-the Police Operations Bureau at J.F.K. International Airport (the POB) and 111 Livingston Street, Brooklyn, New York: refused to hire the employees of predecessor em- ployers, and recognized and entered into -and maintained collective-bargaining agreements with Local 732, Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Local 732), rather than Local 32B, the recognized or certified representa- tive of the employees at these locations. The complaint in Case 29-CA-11487, which issued on 30 November, was based on, an unfair labor charge filed by Local 32B on 15 October; this complaint alleges that Respondent violated Section 8(a)(1) and (5) of the Act by demanding the exclusion of the above two locations as a condition of consummating a collective-bargaining agreement with Local 32B covering other of its locations with employees represented by Local 32B, by unilaterally changing exist- ing wage rates, health and life insurance benefits, pension benefits, holidays, vacations, and sick day benefits with- out prior notice to Local 32B, and by withdrawing its recognition of Local 32B as the collective-bargaining representative of its other employees. On 16 January 1985 an, order consolidating cases, issued, consolidating the above two complaints. On the entire record, includ- ing my observation of the demeanor of the witnesses, and after consideration of the briefs filed by counsel for Respondent and Local 32B, I make the following FINDINGS OF FACT 1. JURISDICTION AND LABOR ORGANIZATION STATUS There being no dispute, I find that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and Local 32B and Local 732 are each labor organizations within the mean- ing of Section 2(5) of the Act. Kathleen Troy, Esq., for the General Counsel. ' Unless indicated otherwise, all dates referred to are for the year 1984 TRIPLE A MAINTENANCE CORP. 47 II. THE FACTS A. Introduction Respondent is engaged as -a, building maintenance con- tractor in the New York City area, more particularly in Brooklyn and Queens. In that, regard, Respondent con- tracts with the owner or manager of commercial or resi- dential buildings and, in exchange for a fee paid to it, supplies employees and supplies to clean, maintain, and/or repair the buildings. These contracts often con- tain 30-day cancellation clauses which contribute to the competitive and transient nature of the industry. The Service Employers Association (SEA), an associa- tion of maintenance contractors , negotiates collective- bargaining agreements with Local 32B on behalf of its members; on completion of these negotiations, the inde- pendent maintenance contractors are informed by letter of the contents of this agreement and are given the choice of signing such an agreement with "exactly the same" economic terms as the SEA agreement (this is called the Independent Contractor's Agreement (the ICA) or negotiating a separate agreement . For a number of years, Respondent has executed the ICA, the last one being for the period 1 January 1981 through 31 Decem- ber 1983. Some of the relevant provisions of this agree- ment are: - Article I, Paragraph 2: This agreement shall apply to all service employees employed in any facility, including residential buildings , in the City of New York. Article XIII, Paragraph 1(c): With respect to all jobs contracted for by the employer where mem- bers of the union were employed when the contract was acquired, it is agreed , that the employer shall retain at least the same number of employees, the same employees, under the same work schedule, and assignments including starting time of each em- ployee. Article XIV, Paragraph 50: 3. The Employer shall make no agreements with any other union unless the Union and the Association agree otherwise in writing; such written agreements between the Union and the Association and the Employers pres- ently in effect shall continue for the duration of this Agreement. In addition, article II, paragraph 2, states: The Employer shall immediately notify the Union in writing on forms to be supplied by the Union as soon as a cancellation of an account becomes effec- tive where Union members are employed. The Em- ployer shall immediately notify the Union when he acquires a new job. The Employer shall be liable for any lost wages and/or damages sustained by em- ployees as a result of the Employer's willful failure to comply with the job cancellation notice and/or new job notification provisions of this Agreement. Local 32B's theory of recognition, based on the terms of the SEA and ICA agreements, together with many years of practice,, can. best be described as: "Once you sign a contract with us, we have all your employees, wherever they may be, unless we decide not to take them." Donald Mumm, Vice President of ]Local 32B, tes- tified that when a signatory employer takes over the maintenance operation at a building where the employees of the predecessor employer were members of Local 32B, the successor employer must recognize Local 32B at that location, and they must retain the exact same people that were on the job. Not just the same number. The same people that were there, the same hours, the same wages, the same benefits, everything. Absolute status quo when they take over a job where our members are employed. The same is true when a Local 32B signatory employ- er takes , over an operation where the predecessor's em- ployees were not members of Local 32B. As Mumm tes- tified: "Where the employees are non-union the contrac- tor takes over the job under the agreement , within 30 days he has to put those people in the union and they are covered under our standard contract." These rules apply as long as the work locations are within the'city of New York (which includes all the boroughs) through Nassau and Suffolk Counties . Mumm testified that the reason for these rules is to stabilize an otherwise turbulent industry; i.e., employers bidding on jobs know , in advance, the wages that they will pay their employees if their bid is successful, and this is the same wage that the present contractor is paying the employees. He also testified that about 1978, at a time when Ronald ' Atkinson, presently the president ' of Respondent, was employed elsewhere, he told Atkinson that the Local 32B contract requires that an employer acquiring, a maintenance: contract at a location where the maintenance employees are Local 32B members "must employ those people, retain their se- niority, their hours and their benefits." The only excep- tion to Local 32B's rules of jurisdiction is when the in- cumbent union at the acquired site is an AFL-CIO' affli- ated union or one which hasa no-raiding pact with Local 32B; in that situation Local 32B will `not accept ju- risdiction over those employees. As will be seen , infra, this exception to the Local 32B- jurisdiction rules was the genesis of the problem here. B. JFK Airport Sometime shortly prior to January 1982 the Port Au- thority of New York and New Jersey (the, PA), the op- erator of JFK Airport, requested bids for maintenance work at the International Arrivals Building (lAB), the principal passenger facility at the airport , together with three small buildings. Maintenance work at the POB, ap- proximately a mile away and -substantially smaller, was not included in this bid. Respondent was the low bidder and obtained the contract for the IAB commencing about' February ,1982. The predecessor employer at the IAB was Triangle Maintenance , which had a collective- bargaining agreement with Local 732 covering its em- ployees at that location. On learning that they were the successful bidder, Atkinson and his predecessor called 48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mumm and informed him that they were awarded the contract and they were prepared to recognize Local 32B for that location.,However, about that time, Gus Bevona, Local 32B president, received a call from the Teamsters president informing him that Local '732 had a contract at the IAB. Because Local '32B-had a no-raid pact with the Teamsters, Mumm advised Respondent- that "we could not have jurisdiction on that job" because'of the no-raid- ing pact between Local 32B and the Teamsters. Re- spondent never grieved this action. On 1 December 1982 Respondent and Local 732 entered into a collective-bar- gaining agreement covering'this location. Approximately 100 employees are employed by Respondent at this loca- tion. All Service Cleaning (All Service) was the mainte- nance contractor at the POB from 1 February 1983 through 31 January 1984; Respondent was unsuccessful in bidding on this contract. In mid-1984, Local 32B began organizing the All Service employees at this loca- tion, and, as a result of a Board-conducted election, was certified on 25 October 1983 as the representative of its employees in the following unit: Included: All full time and regular part time build- ing service employees, employed' by the employer at its location at JFK International Airport. Excluded: All other employees, clerical employees,_ guards and supervisors as defined in the, Act. Representatives of Local 32B and All Service met for one bargaining session in November 1983; after receiving the Local 32B demands, Joseph Schlogel, one of the All Service partners, said that he could not afford the in- creases demanded by Local 32B, and he would speak to the ,PA to request increased renumeration so that he could afford the proposed increases. He never contacted Local 32B again and there were no further collective- bargaining sessions ,between them. Late in 1983 All Serv- ice was being penalized by the PA for poor work; the, PA threatened to cancel the contract in October 1983, but did not. Schlogel testified that the contract was can- celed because of the poor work of his employees, but the PA worded the cancellation -letter (effective 31 January) in a more diplomatic way. Atkinson testified that sometime in late 1983 the PA put out a bid package for the IAB and the POB togeth- er, unlike the previous separate bids for these locations. About November 1983 Respondent was informed that it was the low bidder and was awarded the PA contract for maintenance work at the IAB and PO'B ' effective 1 February 1984. Atkinson testified that "the building became a situation that was part of our original Interna- tional Arrivals Building- package' ; because of that, Re- spondent observed the seniority and bumping provisions of its agreement with Local 732. at the IAB and allowed Local 732 members employed at the' IAB to bid for the POB jobs. As a result, all five positions at the POB'were initially filled by Local 732 members who had previously been employed at the IAB. Respondent defends, this action on the grounds it had a pool of a large number of experienced employees nearby at the IAB, and that it was unaware of Local 32B's 'status at the 'POB at the time. As will be discussed, infra, one source of difficulty between Respondent and Local 32B was allegedly inac- curate information given by Local 32B representatives to Respondent in answer to queries regarding the staffing of facilities Respondent was considering bidding for. Atkin- son testified that -it was not necessary for him to get such information from Local 32B regarding the POB as he was not aware of its presence at the site and it was not necessary as the PA bid packages contain the square footage of the building, the number of stations, and the hours required. Respondent's lack of knowledge of Local 32B' s status at the POB is disputed by the testimony of Anthony Poccio, business agent for Local 32B. -He testified that in December 1983 he had a telephone conversation with Atkinson, although he could not be sure whether he called Atkinson or Atkinson called him. In this conversa- tion Atkinson told him that he had a good chance of being awarded the POB contract and he wanted to know "the staffing of the men there" and the rates of pay. Poccio told him that because Local 32B and SEA were then negotiating for a new agreement he could not tell him what the new rate would be, but the employees were then earning $5.60 an hour. Poccio testified that this was the average rate then being earned by the All Service employees at the POB; because All Service had not entered into a collective-bargaining agreement with Local 32B, this was not a contractual rate, nor was All Service paying the fringe benefits required by -the con- tract.2 On cross-examination, for the first time, Poccio testified that in this conversation he also informed Atkin- son that Local 32B was certified- at the POB. Shortly after this testimony, he testified: A. Maybe the certification wasn't mentioned, but we had won the, election at the POB. Q. You are sure you mentioned that? A. I am pretty sure of that, yes. Q. Your mind is clear on that? A. Yes. Poccio was then shown his affidavit given to the Board, which makes no mention of informing Atkinson of the election or certification. He then testified: Q. The question is, did you tell Mr. Atkinson you won the election? A. I can't answer that. To the best of my knowl- edge, no. I can't really answer that. I don't know. Q. Is your answer right now you simply don't recall whether you discussed election or certifica- tion with Mr. Atkinson? A. Yes. Atkinson testified he never had any such conversation with Poccio or anybody else at Local 32B regarding the POB bid. 2 The All Service payroll register for its last week at the POB is in evidence. This register does not separate regular hours from overtime hours, or indicate whether overtime is paid at a higher rate. In addition, for that period, it appears that the average hourly wage for these em- ployees was approximately $5 50 an hour TRIPLE A MAINTENANCE CORP. 49 C. 111 Livingston Street New York Telephone Company (the Telephone Com- pany) owns a high rise building at 111 Livingston Street in Brooklyn, New York (Livingston Street). It occupies the lower 11 floors and leases space in the top half of the building. The Telephone Company contracts with a maintenance company to clean and maintain the space it occupies, together with the common areas, principally the lobby and' the plaza. Beginning about 1981 the Tele- phone Company contracted with Organized Maintenance Inc. (Organized Maintenance) to provide the cleaning and maintenance of the floors it occupied and the common areas. Presumably, at that time the employees of Organized Maintenance, at least at that location, were not represented by any labor organization. About mid- 1983, Local 32B organized the employees of Organized Maintenance employed at Livingston Street. Pursuant to a Board election, on 19 September 1983 Local 32B was certified as the representative of the full-time and regular part-time porters employed by Organized Maintenance at this location. On 7 December 1983 one inconclusive ne- gotiating session between the parties took place; no fur- ther sessions were held. Leroy Walker, Local 32B's chairman for its Brooklyn district, testified that the reason no further negotiating sessions took place is that about a week after the sole session he received a tele- phone call from one of the Organized Maintenance em- ployees at the site who told him that there ,was a rumor that Organized Maintenance might lose the contract at the site and be replaced by Respondent. Walker made no attempt to contact Organized Maintenance or the Tele- phone Company to verify this rumor. He testified that shortly after learning this he called Respondent and asked to speak to Atkinson; on learning that Atkinson was not in, he left a message for Atkinson to call him. A few days later, having received no call from Respondent, he called again and was connected with Joseph Metcalf, Respondent's area supervisor (who did not testify). He asked Metcalf if Respondent was going to get the con- tract for the maintenance work at Livingston Street; Metcalf said that he did not know. Walker said that he was certified at that building and "we were expecting him to pick up the employees in that building." Metcalf told him that he did not know but he would look into it and, get back to Walker; he never did. The next Walker heard of the situation was about 9 January when one of the Organized Maintenance employees at Livingston Street came to his office and informed him that he was no longer employed there because "he was not picked up .... He was not hired." Respondent began maintaining Livingston Street about 8 January. Mumrn testified that about 10 or 11 January he called Atkinson and told him that Walker and Poccio had in- formed him that Respondent had taken over the POB and Livingston Street operations and had failed to employ the employees of the predecessor employers. He told Atkinson that he expected him to adhere to the con- tract and put those people back to work. Atkinson said that he did not know that Local 32B members were working on the job. Mumm replied that he did know about it because' Walker had told Metcalf that Local 32B's members were employed at these sites. Atkinson then mentioned the IAB difficulty he had with Local 32B and said that he was caught in the middle of it and it was costly to him. Mumm said that he was sorry that it had happened that way, but there was nothing Local 32B could do about it because it was a Teamsters job. Walker testified that on 31 January he received a call from Atkinson and in that call he asked Atkinson wheth- er he was going to employ the Organized Maintenance employees at Livingston Street. Atkinson said that he had replaced them with his employees, and three-quar- ters of them were Local 732 members and the others had signed cards for Local 732. Walker said that he had "an overall agreement" with Respondent and Atkinson said that he had an overall agreement with Local 732. Atkinson testified that the Telephone Company is Re- spondent's largest customer and that Respondent had originally bid on the Livingston Street contract, but was the second highest bidder to Organized Maintenance. He testified further that in the last week of December 1983 he received a telephone call from George Muhs, repre- sentative of the Telephone Company in charge of con- tracting (who did not testify), asking if he would be will- ing to take over cleaning Livingston Street; when Atkin- son asked at what price, he said at the previous bid.' At- kinson said that he would have to check with his office, but he would call him back. Atkinson met with some of Respondent's office employees and discussed the original bid; he called Muhs and told him that he would take, the job on those terms. Atkinson testified: There was -still some days lag because then he had to go back to-he meaning George Muhs had to 'go back to his people and see if it could be con- firmed. At this point the holidays were around us. We're at the beginning 'of the year. If he's, telling me that if I was to take over it was going to happen on or about January 8th. Within-I almost say it's a day, within a day or two I found out from George Muhs it's been confirmed. You have the job. You are to start January 8th. I had' approximately one week to get on the job. Atkinson then asked Muhs if the employees presently working in the building should be considered For em- ployment. Muhs' response (according to Atkinson's testi- mony) was: "Ron, I'd like you to come over and look at the building." He testified that he inspected the building about 4 or 5 January although, of the three affidavits he gave to the Board ' regarding this matter, none mentions such a personal inspection. He inspected all the floors occupied by the Telephone Company to determine what would be needed 'to bring it to an acceptable standard and how many employees would be needed on a regular basis to maintain the area. Atkinson testified: I had an extremely dirty building. Not only was I going to have to go on with a complete comple- ment of staffing, but I was also going to have to go on the job site with cleaning crews that were in- volved in special cleaning duties to bring the build- ing up to par. 50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD This survey of the building convinced him that the maintenance employees employed by- Organized Mainte- nance were not properly performing their job; that is the- reason he did not hire them; and it had nothing to do with the fact that they were members of Local 32B.3 Atkinson testified: So at that point I needed to move very quickly in terms of where I am going to get the personnel to clean this building. . . . I was dealing with the pri- mary client of the company without 'question in terms of the percentage of business we do with them than with anyone else. As a result of that I have the largest crew of per- sonnel that Triple A has anywhere is at the Interna- tional Arrivals Building. If in fact a contractor is going to pull people from other locations to help service a new startup of an' account you have to do so that it doesn't affect your overall operation, By example if I have a two man 'building in location I can't pull both of those people out of there. The continuity of cleaning will fall apart if I try to take two'out of one building and put in two new. So the place where I could go that would least affect my overall operation was the largest pool I had, the International Arrivals Building. I called the Triple, A manager, at the LA.B building and I- told him that as rapidly as possibly-he should contact the entire ^ work force within the I.A.B. and ask does anyone . . . live in the Brooklyn area, anywhere around the Brooklyn Downtown area, and if so would they be willing to relocate to that building. He said he would do so. _ Within a day, if my memory .serves me, I'm get- ting a call from a man by the name of Hank Habel, who was the then Business Agent for Local 732 I.B.T. which represented all of the people at the International Arrivals Building. His conversation was that I understand that you're asking for people to- work in Brooklyn. I said yes. Where? 111 Liv- ingston - Street. I want you to understand if they go into that building those people are mine. I said, "Look, I just need people. I've got to get as many people as I can." He said, ",Well nobody is forced to go over there." I said, "No, nobody is forced." So,it was on a voluntary, basis we pulled as many people as we could from the International Arrivals Building and put them in place, in that building. Those .were the operational modes that came up to- starting the building on January 8th. On 9 ,January, Respondent and,Local 732 entered into a two-page "addendum" to the master collective-bargain- ing agreement between the parties, which is dated 1' May 1982 through 30 April 1985, covering Respondent's em- ployees who are "engaged in custodial, and cleaning op- erations." This addendum. agreement, was "for employees s Atkinson testified that prior to 8, January "a few" of these employees filed applications to work for Respondent,', but most applied to work at other sites after Respondent commenced its' operation at Livingston Street located at the New York Telephone Company facility at 111 , Livingston Street, Brooklyn, New York." Respond- ent and Local 732 are also parties to another agreement, effective 1 December 1982 through 31 'January 1986, covering building maintenance cleaners engaged in-clean- ing operations at John F. Kennedy International Airport, Jamaica, New York, and all airports in the New York- New Jersey metropolitan area. Anthony Saracen, district manager for the Telephone Company in its Building Management Division, testified that Organized Maintenance had been the maintenance contractor at Livingston Street since about 1981, having been the low bidder for the contract. In 1983, he and his colleagues at the Telephone Company had a number of conferences regarding the cleaning of the building by Organized Maintenance. There were a number of areas where they felt the contractor was deficient: the main hall and elevator were not swept or vacuumed in a timely manner; the washroom was occasionally dirty with paper towels missing; the spray buffing of the cafe-, teria was, not performed at a proper level; and, on occa- sion, light bulbs were not changed. On 21 November 1983 the Telephone Company gave Organized-Mainte- nance a final warning that if its work,did not improve its contract would be terminated; there was no noticeable improvement after this warning was given. On 7 Decem- ber 1983 the Telephone Company wrote to Organized Maintenance giving it- 30 days' notice of the termination of its agreement. ' "Immediately after" receiving the return receipt of this letter Muhs called Respondent and proposed that it take the contract at the prior bid price, which Respondent accepted. The Telephone Company did this rather than requesting bids for the job because it had less than 30, days' to locate a new contractor, and is- suing new specifications and requesting , bids on them would have required too much time. Saraceno also testi- fied that he did not request that Respondent not hire any of the Organized Maintenance employees, nor did he inform Respondent of the reasons the Telephone Compa- ny terminated 'Organized` Maintenance, although "I am sure they found out." Joan Anderson, secretary-treasurer for Organized Maintenance, testified that the complaints regarding its work at Livingston Street were minor; lighting fixtures and paper towels were not changed fast enough. When she visited the 'premises she felt that it was being proper- ly maintained. D. Refusal to Bargain and Unilateral Changes As stated, supra, prior to 1984 Respondent had always executed the' ICA agreement, which was patterned after the SEA agreement. About January, in the course of complaining to Atkinson about his failure to reemploy the Local 32B members at the POB and Livingston Street, Mumm' told Atkinson that Local - 32B was in the process of negotiating a new agreement; but because Re- spondent's actions were "contrary to the practice of the industry and to the practice of Triple A in the past" the language in a new contract with Respondent would be "so crystal clear that there would ... be no way that he could claim- to 'misinterpret it again." Mumm testified: TRIPLE A MAINTENANCE CORP. I think he told me at that time that they would be willing to sign the same contract that everybody else signed and I told him you really have the same contract now that everybody else has, but you are not interpreting the way everybody else interprets it. Since that is the case, then we are going to have to make it crystal clear in your case. The General Counsel alleges three distinct 8(a)(5) vio- lations regarding the negotiations that followed: (a) During negotiations between about March and July, Respondent insisted on excluding the POB and Livingston Street units from the unit descriptions as a condition of consummating an agreement with Local 32B. (b) About 3 October, Respondent made certain unilat- eral changes in its employees' benefits without prior notice to or consultation with Local 32B. (c) About 3 October, Respondent withdrew its recog- nition of Local 32B in a citywide unit, as described supra. The evidence regarding these allegations comes princi- pally from the testimony of Ira Sturm, Esq., attorney for Local 32B. Atkinson also testified on the subject. Sturm testified that at the negotiating sessions he was, basically, the spokesman for Local 32B. The first meet- ing took place about 8 March; present were he, Mumm, Thomas Latimer, contract director for Local 32B, Atkin- son, and Stanley Israel, Esq., attorney for Respondent. Mumm began by saying that Local 32B had requested negotiations with Respondent to replace the expired con- tract. Atkinson asked why they were changing the former practice of simply sending him for signature the pattern agreement previously reached with the SEA and the other independents . Mumm said that Local 32B pre- viously had problems with Respondent's interpretation of provisions in the expired contract and they wanted to clarify these provisions ' ,by bargaining separately with Respondent, which they had the right to do. Israel said that Respondent was willing to execute the standard in- dependent agreement provided article XIII, paragraph 1(c), was eliminated and it did not' apply to Long Island, Livingston Street, the POB, or any location Respondent acquired after the contract was executed. Sturm said that Respondent could' not pick and choose what it liked and disliked in the standard independent agreement; he was there to negotiate an agreement "on the unit as it existed, which included 111 Livingston Street and the POB." Israel said that "under no circumstances would he nego- tiate to include 111 Livingston Street and the POB be- cause he had a contractual relationship with another union, 732" and was caught in a', dilemma. Sturm said that the unit he was negotiating for included Livingston Street and the POB; 'Israel said that they should continue bargaining and the unit would be decided by the Board pursuant to the unit clarification petition that he had filed. Local 32B gave Respondent an 18-page "Proposal . .. for Revision and Amendment" of the independent agreement. At this meeting, Atkinson also complained that when he called Local 32B for staffing information of locations on which he was going to bid, (where Local 32B represented the incumbent contractor) he' was often 51 given erroneous information which, he felt, was done purposely. Latimer denied this, saying that Local 32B gave him the most accurate information it had. At this meeting and at later meetings of the parties, Israel sug- gested that the best way of settling the dispute involving the POB and Livingston Street was for the two Unions to meet and solve the problem (because only the Unions or the Board could solve the problem) and that Re- spondent would agree to whatever determination was made. Local 32B's response was, "[Y]ou created the problem, you resolve it." The next meeting took place on 22 March with the same individuals, except Mumm, present. Atkinson again complained about receiving incorrect staffing informa- tion from Local 32B for jobs on which he was preparing to bid. Sturm then went over each of the items in Local 32B's proposal. Israel asked whether each of the items was in the SEA agreement and, when Sturm said that it was not, Israel said they would not accept it. Israel reit- erated that the unit in the agreement should not include Livingston Street and the POB. Sturm insisted that Liv- ingston Street and the POB were part of the negotia- tions. Israel objected to article XIII of the expired agree- ment alleging that it should only encompass those loca- tions that Respondent acknowledged were Local 32B lo- cations. Sturm answered that such a clause was neces- sary in the New York building maintenance industry. No agreement was reached at this meeting. The next meeting was held about 3 May with the same participants. Atkinson, again, briefly complained about the information he received from Local 32B regarding jobs on which he was about to bid. Israel repeated that any contract should not include Livingston Street or the POB because he had an overall agreement with Local 732 covering these locations and others. Israel stated that the two Unions should decide the jurisdiction problem. Sturm asked for a copy of the agreement with Local 732 and was told that he would be supplied with one; he never was. Sturm then brought up one of Local 32B's proposals that there be no layoffs, reductions in force, or change of schedules or duties without Local 32B's prior approval; he felt this was necessary because of Respond- ent's actions earlier that year. Sturm testified: I took a position that if that were the case and he is in essence, he meaning Triple A. If Triple A is denying the existence of the reality of the cleaning service industry in New York where there is you know gains and loses [sic) on a daily basis, [ would demand that there be absolutely no layoffs of any employees during the life of the contract, that there be absolutely no reduction in forces on any site that was acknowledged to be 32B during the life of the contract without prior written consent of the Union. Respondent did not agree with this. At that point Israel said : "I guess we are at an impasse." Sturm testi- fied: I looked at him and I said well I guess we are at an impasse . . . basically I considered us at being at 52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD a position where I was not being able to negotiate with the then recognized unit ... and I realized that I couldn't make any progress because . . . all the negotiations were being conditioned on Triple A's interpretation of what the unit was. At that meeting, Sturm gave Israel a copy of the recent- ly, negotiated SEA agreement. The meeting concluded without agreement on any of the issues. The next meeting took place about 17 July with the same participants plus an associate in Sturm's law firm. At either this meeting or, initially, at the 3 May meeting, Sturm recited Local 32B's demands, which were reduced to the following: the economics of the SEA agreement ("which really 'was never a problem"); no layoffs, dis- charges, or reductions in force without the prior consent of Local 32B, in the citywide unit (as discussed supra); a $10-a-week per employee contribution by Respondent for an annuity fund, in addition to the standard pension then in existence; no change in an employee's duties or work schedule without the prior consent of Local 32B; Respondent's assumption of the cost of an attorney to represent its employees in connection with any problem arising out of their employment; and 2 hours' leave four times a year for all employees to attend union meetings. Israel said that if these demands were included in the SEA agreement he would accept them; if not, he would not. No agreement was reached on any of these issues. During early to mid-July, Local 32B struck and pick- eted Respondent without warning at three high rise com- mercial buildings in Manhattan; within hours, of these strikes, Respondent lost all of these contracts, which had good profit margins and were the "mainstay of the con- tractor's business in the New York City area," according to Atkinson's'testimon-y. At the time,of the hearing, Re- spondent was the maintenance contractor at only one commercial building in Manhattan. The next meeting took place about 19 July. Sturm tes- tified that present, in addition to the usual participants, was Joe Sorotkin, who, Sturm was informed, was an owner of, Respondent. Sorotkin asked Mumm what he wanted and Mumm said that he wanted a counterpropos- al. At that point Mumm and Atkinson spoke privately in Mumm's office for about a half hour. When Mumm emerged from the room he told Sturm that an agreement had been reached and Respondent would sign the stand- ard independent agreement with two additions: it would agree that there would be no peremptory discharges and no reductions, in force during the term of, the contract. Additionally, Respondent agreed to withdraw its unit clarification petition and both sides would withdraw all unfair labor practice charges. The final (and crucial) aspect of this.agreement was that the POB and Living- ston Street would be within Local 32B's jurisdiction as long as Local 732 agreed to relinquish jurisdiction. Mumm told Sturm to prepare such a stipulation for the parties' signatures. About the following day Sturm was informed that this proposed agreement had collapsed. Atkinson testified that Israel was not present at this meeting. Sorotkin asked how the strike could be settled; Mumm pointed to Atkinson and said that he knew what had to be done. At that point, everybody but Atkinson and Mumm left the room. Mumm told Atkinson that the issues that could settle the matter were Local 32B's juris- diction at the POB and Livingston Street and the two proposals demanded by Local 32B providing for no lay- offs without the consent of Local 32B and ,no discharges prior to an arbitrator's decision permitting it. As to the former, Atkinson told Mumm that he was not sure what, if anything, he could do about it, but he would speak to someone in Local 732 to see if this jurisdiction issue could be settled. As to the latter,-he would speak to Re- spondent's owners and legal counsel about it. At that point they left the room and the meeting ended. They met the next day and Atkinson told Mumm that Local 732 refused to relinquish jurisdiction over either the POB or Livingston Street. Atkinson said: "It's not mine to give." They then rejoined the others and Mumm said that all of Local 32B's demands were back on the table. Mumm asked Israel if there was anything to talk about, he said no, and the meeting ended. There were no fur- ther meetings between the parties. On Monday afternoon, 24 September, Atkinson called Sturm and asked to set up another meeting as Respond- ent had some proposals to make. Sturm said that it was a bad week for him because, being an Orthodox Jew, he would not be working late Wednesday, Thursday, or Friday of that week as it was Rosh Hashanah, but that he would be willing to meet anytime the following week and he would call Mumm to arrange such a meeting. When he did so, Mumm told Sturm that he would be at- tending a convention the following week, but he would be available the next following week, the week of 8 Oc- tober. Sturm then called Atkinson and reiterated that he was not available that week because of the Jewish holi- day and Mumm was not available the following week due, to a convention, but they could meet on 8 October. Sturm testified that Atkinson's response was: "[T]hat was not in my, instructions. My instructions were to make it before that." By letter to Atkinson, with a copy to Israel, dated 24 September, Sturm wrote: I would just like to confirm with you our conver- sation of this morning. I returned your call and you advised me that you would like to set up a negotia- tion session. 1 advised you that this week was diffi- cult due to the fact that the Jewish Holiday falls on Thursday and Friday. Although I agreed to meet early next week, I called Mr. Mumm and he indi- cated that he would be out of town next week, but that we would be willing to meet on October 8th or during that week. After you called Stan Israel to find out about his availability, you advised me that your proposals would be delivered to me and that the matter could not, wait until the week of the 8th. I asked if we could set up a meeting anyway and you , indicated that such were not in accord with your instructions. I would like to formally advise you that the Union is prepared to meet and negotiate at mutually agreeable dates and times., Our offer remains open, subject to limitations that we all have as to ,getting our schedules to coincide. Should you wish to meet, please give me a call. TRIPLE A MAINTENANCE CORP. By letter to Sturm dated 1-October (which indicates that it was hand delivered), Israel wrote: As you are aware, we have been trying to set up a further negotiating' session with you since Friday, September 21. We have been unable to do so be- cause of your unavailability due to the Jewish holi- days and Mr. Mumm's complete unavailability during the week of October 1. Mr. Atkinson and I, however, will be able to meet with you some time during the week of Octo- her 8. At this point I would suggest either October 10 or 11 at approximately 5:30 P.M. In the interim, however, I feel that it is incum- bent upon me to present to you the Company's re- vised proposals for a new collective bargaining agreement. The prior offer of the Company, which consists of its willingness to enter into the Inde- pendent Contractors Agreement (excluding, of course, those jurisdictional clauses which we have previously objected to) continues in effect with the following modifications: (1) Effective October 1, 1984, the Company will no longer make contributions to the Local 32B-J Health Fund but rather will maintain a Blue Cross, Blue Shield (employee only) coverage, together with $2,500 group life insurance per employee. Ex- isting employees will be covered under, the Compa- ny's direct coverage immediately, whereas employ- ees hired on and after October 2, 1984, will have to be with the Company for 180 days of continuous employment in order to'be eligible for coverage.' (2) Effective October 2, 1984, the employee's birthday will be eliminated as a paid holiday. (3) Effective October 2, 1984, the two Health Center visits will be eliminated. (4) All employees hired on and after October 2, 1984, will receive the following paid vacation al- lowances: 1 year of service-1 week 3 years of service=2 weeks 8 years of service-3 weeks 15 years of service-4 weeks (5) Employees hired on and after October 2, 1984, will receive five (5) paid sick days per year. There shall be no payment for any unused sick leave, regardless of the date of hire of the employ- ee. In view of the prolonged nature of our bargain- ing impasse and the, job actions/strikes at 11 Broad- way, 29 Broadway and 170 Broadway, resulting in the loss of these facilities, the above-described changes in the Company's proposal will be imple- mented effective as of the dates shown above, unless agreement with respect to each of the items and the contract as a whole,, is reached at our pro- posed meeting during the week of October 8th. Your immediate response will be appreciated. This was followed by another letter from Israel to Sturm dated' 2 October, which states: 53 We inadvertently omitted in our October 1 letter to you one further revision of the Company's pro- posal: The Company proposes that the hiring rate for employees hired on and after October 2, 1984, in Manhattan be $6.00 per hour. The foregoing should be considered as Modifica- tion #6 of the prior proposal. Sturm was not in his office on Monday, 1 October. He was in his office for a short time on the following morn- ing and on Wednesday, and after reading Israel's 1 Octo- ber letter he called Israel and told him that the dates he suggested for negotiations, 10 and 11 October, were a Jewish holiday, Succoth, and he would not be working on those days. Israel told him that he would be receiving another letter from him (i.e., the 2 October letter, supra) supplementing the 1 October letter. Sturm testified that he did not see any urgency to scheduling a bargaining session because "it was a moot point at that time" for two reasons: Israel's letter of 1 October was inconsistent and could be read to mean that these modifications would be put into effect on 1 and 2 October. In addition, concurrently with receiving these letters Walker told him that a Local 32]B member who was employed by Respondent at 395 Flatbush Avenue, Brooklyn, New York (Flatbush Avenue), had informed him that Respondent had made changes in their condi- tions of employment and distributed a notice to the em- ployees to that effect. Clifton Boone, who had been employed by Respond- ent as a porter at Flatbush Avenue, in a unit represented by Local 32B, testified that about 2 or 3 October Metcalf (a supervisor whose area encompasses Flatbush Avenue) called the Flatbush Avenue location and told the crew not to leave until he spoke to them. About 3 p.m., Met- calf and Bernie Ross, Respondent's operations manager, arrived. Ross did all the talking (although he did not tes- tify). He said that "as of today" Respondent was no longer recognizing Local 32B; they did not want to fire anybody but "we are no longer going by the same rules" as they had under Local 32B. He informed them of the following changes: 5 days' sick leave and 5 holidays in- stead of the 10 they had been receiving; 1 week's vaca- tion after 5 years of employment, compared to the 3- week vacation they had been receiving after 5 years of employment; and- Blue Cross would cover only the em- ployee, not his family as well, which they had been re- ceiving. Ross and Metcalf then left Flatbush Avenue. Shortly thereafter, Metcalf called and told Boone that he, Atkinson, and Ross met and they decided that the present employees would maintain their present sick days, holidays, and vacation time, but these items would not be provided to employees hired in the future. Met- calf told him that the following, day he would bring the crew copies of the new rules and Blue Cross and life in- surance forms. On the next day, Metcalf distributed the following form together with a Blue Cross application (under "Type of Contract" "Individual," the word "only" was handwritten) and a group life insurance 'en- rollment card to each employee at Flatbush Avenue: 54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD If you stay please be advised that: A) Triple A will no longer contribute moneys to the 32B-32J Welfare Fund. A.1) Instead you will have a Blue Cross/Blue Shield Insurance plan covering yourself only and a company paid life insurance policy of $2500. B) Your current holidays stay the same. C) Triple A will no longer pay for a, Birthday day off. D) Triple A will no longer pay for clinic days off. E) Your current vacation schedule based on your seniority will continue to be observed as usual. E.1) All employees hired after 10/2/84 will have the following VACATION ENTITLEMENT: After 1 year-5 days; 3 years-10 days; and 8 years-15 days G) Your pension will continue to be paid by Triple A. G.1) Employees hired after 10/2/84 will be pro- vided no pension by Triple. H) Existing employees will continue to receive the Sick Day benefit of up to 10 days per calender year. However you will not be paid for unused sick days at the end of the year. H.1) New hires will only receive 5 sick days per year and are also excluded from sick day rebate for unused sickdays at the end of the year.4 Boone testified that shortly thereafter his paycheck stubs indicated that dues were not being deducted from his pay, so he and his fellow employees paid their dues directly to Local 32B to protect their benefits. His em- ployment with Respondent terminated 6 weeks later, but he learned from the employees at that location that some later time Respondent resumed the checkoff of Local 32B dues. Atkinson testified, that shortly prior to 1 October Re- spondent was anticipating another strike of its operations by Local 32B; in that regard, Atkinson held a meeting with his supervisors (including Ross and Metcalf) and in- structed them to tell the employees what their benefits would be in case they remained at work during such a strike. About 1 October, Metcalf told him that he had met with the Flatbush Avenue employees and told them that Respondent no longer recognized Local 32B. Atkin- son told Metcalf that he had never authorized him or anyone else to say that, and that it was not so; they had always recognized Local 32B at that location and would continue to do so. Atkinson then prepared the above document, which was given to supervisors to inform em- ployees of their benefits; it was not meant for distribution to employees. Atkinson testified: It was intended as a guide to supervisors as to a re- lationship that might develop with 32B-J. [If there were a strike] . . . if union members decided to stay to work versus going out on strike this is what the situation would be in the event that they stayed. 4 Sturm testified that none of the proposed changes in this letter or the 1 October letter had been discussed between the parties at any of the ear- lier bargaining sessions. These changes were implemented between 10 and 14 October. Atkinson testified that Respondent still recog- nizes Local 32B as the collective-bargaining representa- tive of the employees at Flatbush Avenue, still contrib- utes to the Local 32B pension fund for all its employees at that location and the others where Local 32B repre- sents its employees, and continues to checkoff union dues for its employees at that location, although there was a brief delay in these checkoff remittances in late Septem- ber or early October due to a turnover of clerical and managerial employees. This problem was corrected shortly thereafter and any delinquencies were remitted to Local 32B. M. DISCUSSION AND ANALYSIS The initial and paramount issue to be discussed is the legality of Respondent's recognition of (and subsequent execution of a collective-bargaining agreement with) Local 732, rather than Local 32B, for its employees at the POB and Livingston Street, and its failure to rehire the predecessor's employees at these locations. The Gen- eral Counsel alleges that Respondent refused to rehire these employees because they were members of, and rep- resented by, Local 32B, as well as to avoid, its "collec- tive-bargaining obligations" with Local 32B, in violation of Section 8(a)(l), (2), (3), and (5) of the Act. Respond- ent, on the other hand, defends that it had no knowledge that Local 32B was certified at these locations when it became the maintenance contractor at these locations, and the actions it took were good-faith business decisions unrelated to the employees' union affiliation. The principal cases in this area are NLRB v. Burns Se- curity Services, 406 U.S. 272 (1972), and Howard Johnson Co. v. Hotel & Restaurant Employees 417 U.S. 249 (1974). In Burns, the Court stated that "where the bargaining unit remains unchanged and a majority of the employees hired by'the new employer are represented by a recently certified' bargaining agent," the new employer may be ordered to bargain with the incumbent union; however, in the absence of consent to be bound, the successor em- ployer is not obligated to assume the predecessor's col- lective-bargaining agreement with the union. In -this deci- sion, at footnote 5, the Court states: The Board has never held that the National Labor Relations Act itself requires that an employer who submits the winning bid for a service contract or who purchases the assets of a business be obligated to hire all of the employees of the predecessor though it is possible that such an obligation might be assumed by the employer.... However, an em- ployer who declines to hire employees solely be- cause they are members of a union commits a § 8(a)(3) unfair labor practice. Howard Johnson involved an action by a union under Section 301 of the LMRA to compel an employer who purchased the assets of a motel and restaurant to arbi- trate under the arbitration provision of its collective-bar- gaining agreement with the predecessor employer the extent of its obligations to the predecessor's employees, none of whom it employed. The Court ruled that such TRIPLE A MAINTENANCE CORP. an action was "completely at odds with the basic princi- ples this Court elaborated in Burns," as quoted supra. The Court stated (417 U.S. at 262): "Clearly, Burns es- tablishes that Howard Johnson had the right not to hire any of the former Grissom employees, if it so desired." In a footnote, similar to that in Burns, the Court stated (id. at-' 262 fit. 8): Of course, it is an unfair labor practice for an em- ployer to discriminate in hiring or retention of em- ployees on the basis of union membership or activi- ty under § 8(a)(3) of the National Labor Relations Act . . . . Thus, a new owner could not refuse to hire the employees of his predecessor solely because they were union members or to avoid having to recognize the union. As Respondent did not employ a majority of the pred- ecessor's employees at the POB or Livingston Street, a successor obligation cannot be found in that manner. If, however, the evidence establishes that Respondent did not hire the predecessor's employees at these locations because of their union membership, this would directly establish an 8(a)(3) violation, which would result in" an 8(a)(5) refusal-to-bargain violation as well. Love's Barbe- que Restaurant No., 62, 245 NLRB 78 (1979). This issue therefore boils down to whether the record evidence es- tablishes that Respondent refused -to hire the former em- ployees at the two locations because they were Local 32B members and to avoid having to recognize and bar- gain with Local 32B at these locations. I find that it does not. There are numerous cases which have found that an employer's refusal to hire the predecessor's employees violated Section 8(a)(3) of the Act and, at the same time, created a successorship relationship; e.g., Houston, Distri- bution Services, 227 NLRB 960 (1977); Potter's Chalet Drug, 233 NLRB' 15 (1977); Love's Barbeque, supra; and CJ.B. Industries, 250 NLRB 1433'(1980). However, in each of these cases there was substantial evidence that the employer's hiring practice was purposely formulated to avoid hiring the predecessor's or union employees. I find such,evidence lacking in the instant matter. Initially, it should be stated that I did not find Atkin- son to be a totally credible witness. His testimony re- garding the notice he received prior to obtaining the contract at Livingston Street is contradicted by the testi- mony of Saraceno, a disinterested and more credible wit- ness. In addition, 'as stated in the Charging Party's brief, an extensive amount of time was consumed at the negoti- ating sessions by Atkinson's complaints about his inabil- ity to obtain accurate information from Local 32B re- garding staffing at locations Respondent was attempting to obtain. This creates a strong doubt about his testimo- ny that a few months earlier he did not attempt to obtain this information from Local 32B about the POB and Liv- ingston Street. However, that does not establish the nec- essary elements of a violation. The element for finding such a violation is animus, ' and I find it lacking here. Discussing the POB initially, and without deciding whether Respondent's recognition of Local 732 was valid under the Board's accretion doctrine, I find the evi- 55 dence fails to demonstrate animus toward Local 32B. Re- spondent had a unit of 100 employees at the JAB, a I mile distance from the POB, which was a unit of 5 em- ployees. This IAB unit had been represented for a year or two by Local 732 after Local 32B refused Respond- ent's request to take these employees due to its no-raid- ing pact with the Teamsters. Atkinson's testimony re- garding accreting this POB unit to the IAB unit is not unreasonable: he had a ready and convenient pool of ex- perienced employees to employ in his new operation. Re- spondent's argument regarding Livingston Street is not as persuasive; yet, the necessary animus is still lacking. Although Atkinson's three affidavits given to the Board fail to mention any personal inspection of Livingston Street prior to 8 January, considering his experience in the industry it is fair to conclude that he was aware that Organized Maintenance was being canceled as the con- tractor because the Telephone Company was not satis- fied with its operation at Livingston Street. Saracen's frank testimony that although he did not tell Respondent the reason for the cancellation, "I am sure they found out," supports" this finding. Finally, as the Telephone Company was Respondent's largest customer it is under- standable that Respondent would want to employ at this facility employees whom it knew to be capable. For these reasons, I shall dismiss the allegations that Re- spondent violated Section 8(a)(1), (2), (3), and (5) of the Act in this manner. There remains for consideration the allegations that Respondent violated Section 8(a)(5) of the Act by with- drawing recognition of Local 32B, by demanding, the ex- clusion of the POB and Livingston Street. as a condition of consummating an agreement with Local 32B, and by instituting unilateral changes in its' employees' terms and conditions of employment. The initial allegation is clear- ly without merit; the uncontradicted testimony is that after Atkinson learned of what Ross and Metcalf had in- formed the Flatbush Avenue employees, he had the re- marks corrected; the evidence also establishes that from that time until the present time Respondent has contin- ued to recognize Local 32B at those locations where it is the collective-bargaining representative of its employees. I also find that Respondent did not unlawfully condi- tion the consummation of an agreement with Local 32B on their agreement to exclude- the POB and Livingston Street from the unit. The testimony regarding the parties' negotiations establishes that they were both playing "hardball"; due to the events of January and February, Local '32B was insisting on extremely 'stringent terms in its negotiations with Respondent, terms that were more stringent than those contained in its SEA, or ICA. agree- ment. Respondent, on the other hand, was proposing (and insisting) that any new agreement exclude the POB and Livingston Street on the ground that: it had valid collective bargaining agreements with Local 732 cover- ing these locations. Most importantly regarding this alle- gation, however, during these negotiations Israel pro- posed, on a number, of occasions, that the parties con- summate an agreement and let the Board (in the unit clarification ,petition) or the Unions resolve the unit issue. Local 32B refused such an offer for the reason: "[Y]ou 56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD created the problem, you resolve it." I therefore find that Respondent was not adamant in its position; rather, it was attempting to find a solution to the predicament that it, and Local 32B, had gotten it into. This allegation is therefore dismissed. Finally, it is alleged that Respondent violated Section 8(a)(5) in October by making unilateral changes in cer- tain terms and conditions of employment of its employ- ees, Respondent defends that these changes were made after an impasse had developed , and I agree. In an often- cited case, Taft Broadcasting Co., 163 NLRB 475, 478 (1967), enfd. 395 F.2d 622 (1968), the Board stated: An employer violates his duty to bargain if, when negotiations are sought or are in progress , he unilat- erally institutes changes in existing terms and condi- tions of employment. On the other hand, after bar- gaining to an impasse, that is, after good-faith nego- tiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals. Whether a bargaining impasse exists is a matter of judgment. The bargaining history , the good faith of the parties in negotiations, the length of the negotia- tions, the importance of the issue or issues as to which there is disagreement, [and] the contempora- neous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining exist- ed. An impasse is present when it is clear "that further good-faith bargaining . . . would have been futile." Alsey Refractories Co., 215 NLRB 785, 787 (1974). There were five negotiating sessions between early March and mid-July; apparently no agreement was reached at the first four meetings. Respondent was insist- ing that it could not "give" Local 32B the POB and Liv- ingston Street while Local 32B was insisting on obtain- ing these locations and other terms not present in the SEA or ICA agreement. When Local 732 refused to re- linquish jurisdiction over the POB and Livingston Street the tentative agreement of 19 July was destroyed, and, in my opinion, so was any possibility that the parties would subsequently reach an agreement. I make this finding even though Respondent later attempted to schedule fur- ther negotiations with Local 32B. The nature of Re- spondent's letters of 1 and 2 October, together with At- kinson's earlier call to Sturm, creates some question in my mind of the good-faith nature of these communica- tions. Respondent's long-term relationship with Local 32B, together with the fact that; prior to Atkinson's 24 September call to Sturm, Respondent had not contacted Local 32B for in excess of 2 months, creates a strong sus- picion that either Atkinson or Israel was aware of Sturm's religious affiliation and chose the dates involved because of the Jewish holidays during those weeks. Re- gardless, I need not make such a finding, as the fact that the parties have attempted to schedule further negotiat- ing sessions does not preclude the finding of an impasse. There was no evidence of any movement in the parties during the first five meetings and crucial issues remained to be resolved. Additionally, no evidence was adduced to establish that either party's position had changed since then. Lou Stecher's Super Markets, 275 NLRB 475 (1985). Once it has been established that an impasse exists, "an employer can only make unilateral changes in working conditions consistent with its rejected offer to a union." Caravelle Boat Co., 227 NLRB 1355 (1977). Counsel for Respondent, in its brief, states: While the implemented changes were not made in the course of face to face negotiations (since 32B re- fused to engage in face to face negotiations) 32B nevertheless received advance, specific and clear written and detailed notice of the proposals. Triple A could not have done anymore. I disagree . The Board in Taft, supra, found no violation as the postimpasse unilateral changes "were reasonably comprehended within the Re- spondent's proposals which preceded impasse.',' In the instant situation Respondent first proposed the changes on 1 and 2 October; other than the 24 Sep- tember call from Atkinson to Sturm, there was no contact between Respondent and Local 32B for the prior 10 weeks. There is certainly no evidence of bad faith on the part of Local 32B in scheduling a meeting and, if Respondent had been patient, a meeting would have been arranged within 2 weeks. I therefore reject Respondent's argument and find that the unilateral changes were not previously part of its negotiations with Local 32B, and therefore violate Section 8(a)(5) of the Act. CONCLUSIONS OF LAW 1. Respondent Triple A Maintenance Corp. is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Local 32B and Local 732 are labor organizations within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) and (5) of the Act by unilaterally changing the following terms and conditions of employment of its employees without prior adequate notice to, and negotiations with, Local 32B. (a) Discontinuing contributions to the Local 32B health fund and substituting employees-only coverage of Blue Cross and Blue Shield, together with a $2500 life insurance policy, for all existing employees and for new employees after 180 days of employment with Respond- ent. (b) Eliminating the employee's birthday -and two health center visits yearly as paid leave. (c) Reducing vacation allowance and paid sick leave days for all employees hired after 2 October 1984. (d) Reducing the hiring rate to $6 an hour for all em- ployees hired after 2 October 1984. 4. Respondent did not further violate the Act as al- leged in the consolidated complaint. TRIPLE A MAINTENANCE CORP. THE REMEDY Having found that Respondent unlawfully made the above unilateral changes in the terms and conditions of employment of certain of its employees, I shall recom- mend that it cease and desist therefrom, restore the terms and conditions of employment as they existed prior to the unilateral changes in October, and make its employ- ees whole for any losses they suffered due to these changes in their terms and conditions of employment. The reimbursement shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed5 ORDER The Respondent, Triple A Maintenance Corp., Brook- lyn, New York, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Unilaterally changing the terms and conditions of employment of its employees without prior consultation and negotiation with the collective-bargaining represent- ative of its employees. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make its employees whole for any losses they suf- fered due to the discontinuance of contributions to the Local 32B health fund in the manner set forth above under the remedy section of this decision. (b) Make its employees whole for the loss of their birthday and two health center visits yearly as paid leave in the manner set forth above under the remedy section of this decision. 5 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses. 57 (c) Make its employees whole for any losses suffered due to the reduction in vacation and sick leave days due its employees in the manner set forth above under the remedy section of this decision. (d) Make its employees whole for any losses they suf- fered due to the reduction in the hiring rate to $6 an hour in the manner set forth above under the remedy section of this decision. (e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (f) Notify Local 32B, in writing, that it is rescinding these changes and restoring its employees' terms and conditions of employment to what they were prior to 1 October 1984. (g) Post at each of its offices and facilities copies of the attached notice marked "Appendix."s Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posited. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Mail a copy of the notice, by certified mail, return receipt requested, to every employee employed by the Respondent on or after 30 September 1984 at a location where the employees are represented for purposes of col- lective bargaining by Local 32B. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the consolidated complaint herein be dismissed insofar as it alleges viola- tions of the Act not specifically found. 6 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."