Maid In New York, Inc.

524 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Maid In New York, Inc. and Local 32B-32J, Serv- ice Employers International Union, AFL-CIO. Case 2-CA-21817 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On October 27, 1987, Administrative Law Judge D. Barry Morris issued the attached decision. The General Counsel filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed. ' The General Counsel has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administra- tive 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 re- versing the findings In adopting the judge's dismissal, we note that the judge implicitly credited Considine rather than the employees concerning what they were told about the Respondent's hiring procedure We also note that both em- ployees' testimony indicates they were applying for work only at the Whitney Museum 2 The judge inaccurately characterized the complaint as alleging a re- fusal by the Respondent to hire the employees rather than a refusal to consider them for employment at the Whitney Museum . Based on the credited facts as found by the judge, however, we conclude that the complaint was properly dismissed because the alleged discnminatees, for lawful reasons, would not have been considered for hiring at the Whitney without having first demonstrated their ability at another location Alice Joyce Garfield, Esq., for the General Counsel. Thomas E. Durkin, Esq., of Newark, New Jersey, for the Respondent. E. David Hyland, of New York, New York, for the Charging Party. DECISION STATEMENT OF THE CASE D. BARRY MORRIS, Administrative Law Judge. This case was heard before me in New York City on 6, 7, and 8 April 1987. On a charge filed on 5 August 1986,' a ' All dates refer to 1986 unless otherwise specified complaint was issued on 19 September, alleging that Maid In New York, Inc. (Respondent) violated Section 8(a)(3) and (1) of the National Labor Relations Act, (the Act). The complaint alleged that Respondent refused to hire three individuals because they were members of Local 32B-32J, Service Employees International Union, AFL-CIO (the Union). Respondent filed an answer de- nying the commission of the alleged unfair labor prac- tices. The parties were given full opportunity to participate, produce evidence, examine and cross-examine witnesses, argue orally, and file briefs . Briefs were filed by the General Counsel and by the Respondent. On the entire record of the case, including my obser- vation of the demeanor of the witnesses , I make the fol- lowing FINDINGS OF FACT 1. JURISDICTION Respondent, a New York corporation with an office and place of business in New York City, is engaged in the business of providing cleaning services to commercial customers. Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. In addition, Respondent admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background Prior to July 1986 the maintenance contract for clean- ing services for the Whitney Museum, located in New York City, was held by Allied Maintenance Corporation. John Murray, operations officer of the Whitney Museum, testified that the museum decided to change contractors because Respondent was prepared to perform the serv- ices for a lower price. Murray also testified that the Allied crew was too small for the amount of work neces- sary and that certain jobs were not being done. Accord- ingly, the decision was made by the museum to award the contract to Respondent. Robert Dellacona, president of Respondent, testified that prior to the award of the contract he inspected the museum's premises and noticed that certain areas of the museum were not cleaned prop- erly. Respondent began working at the museum on 4 August. 2. Hyland's employment with Respondent E. David Hyland, who appeared to me to be a credi- ble witness, testified that in mid to late July he was ad- vised by Vernon Sampson, chairman of the Union's Dis- trict 5, that Allied was about to lose the contract with the Whitney Museum. Hyland decided to embark on a course of trying to obtain employment with Respondent. Accordingly, on Friday, 25 July, he telephoned Re- spondent to inquire about the possibility of applying for a job. Hyland testified that he was told he would "have 289 NLRB No. 66 MAID IN NEW YORK 525 to come down on . . . a Monday at 2:30. That was the time apparently when typically interviews were held." As instructed, Hyland appeared at Respondent's offices the following Monday, 28 July at 2:30 p.m. Hyland met with Dellacona and with Robert Considine, Dellacona's assistant, and was told to return the next day. On 29 July, as instructed, Hyland came back to Respondent's offices. He and three or four other employees were ad- dressed by Dellacona who "began to talk about the new job that had been acquired and how he was going to schedule work at the museum." Dellacona, however, did not mention the name of the museum. Hyland was as- signed a job, not at the museum, and was told by Della- cona "he was going to put me on a job to see if I could clean." On 30 July Hyland telephoned Dellacona and told him that he was unable to work that day. Hyland was then assigned to a different job, where he worked the follow- ing day. On 4 August Hyland appeared at Respondent's offices to pick up cleaning supplies . At that time Hyland told Dellacona that he had signed a pledge card for the Union. Dellacona replied, "We have nothing to do with that and that we are trying to resist the Union." Hyland then reported to the job he was assigned and at 8 p.m. that day he walked off the job. The following morning Hyland telephoned Dellacona to tell him that he was re- signing his position with Respondent. Dellacona asked, "What's all this I hear about you talking about the Union with employees." Hyland replied that he was a repre- sentative of the Union in its contract department and that he "wanted to fmd out how Maid in New York oper- ates." Hyland testified that after his initial telephone conver- sation with Respondent on 5 July he advised Sampson of the conversation and that he planned to go to Respond- ent's offices the following Monday for an interview and to fill out an application. After Hyland returned from his interview on 28 July, he had another conversation with Sampson. Hyland testified that Sampson told him that two employees had been taken to Respondent's offices by two of the Union's business agents. Subsequently, Kevin McCulloch, assistant to the president of the Union, instructed Hyland to prepare a mailgram to be sent to Respondent. On 31 July the Union sent a mail- gram to Respondent that stated, in part, "the Union wishes to file unconditional application for employment" on behalf of Diaz, Choute, and Penago. 3. Visits to Respondent's offices by Choute and Penago Dellacona testified that he considered the Whitney Museum as a good account to have obtained and that he wanted to impress the museum with the type of services his company was performing. Consequently, he decided that he would not assign any new employees to work at the museum. He testified that he would not place "new hires" at the Whitney because "it was too important to take the chance." He further testified that sometime during July several of the former employees of Allied came to Respondent's offices seeking employment. Edwin Feliciano, a union business agent, accompanied them and it was made clear that they wanted to work exclusively at the Whitney Museum. Dellacona testified that Considine told the individuals that Respondent was not hiring any new employees to work at the Whitney. Dellacona explained: Particularly in this case because at that particular time for my company to get an account like the Whitney Museum was a big deal. There were not many accounts with that monthly billing at that time on my roster. It was supremely important to me to impress them favorably. So under no condi- tion would I let someone I had absolutely no knowledge of come in and go to a place like that. Dellacona testified that after he received the mailgram dated 31 July from the Union he instructed Considine to advise the Union that the individuals were welcome to make an appointment for an interview at the standard time of Monday, 2:30 p.m. Considine testified that he telephoned Sampson that same day. Sampson told Consi- dine that he was representing the men who were em- ployed at the Whitney and that he wanted Considine "to also employ those people at the Whitney Museum." Con- sidine replied that Sampson "could have the men call to make an appointment, to come in and fill out applica- tions." Considine testified that a day or two after receipt of the mailgram, Feliciano came to Respondent's offices to- gether with one of the former employees of Allied, Sergio Penago. Feliciano requested to fill out an applica- tion for Penago's employment at the Whitney Museum. Considine replied that Respondent was not hiring anyone for the Whitney, and that "he could have the workers in- volved call to make an appointment to come in the fol- lowing Monday afternoon . . . to fill out an application, which was our standard procedure." Considine also testi- fied that Feliciano returned to Respondent's offices in September, together with another former Allied employ- ee, Adolph Choute. Feliciano told Considine, "We're here to apply for employment at the Whitney Museum." Considine replied, "I'm still not accepting applications for employment at the Whitney Museum . . . if you'd like you may have Mr. Choute call back and make an appointment for an interview on Monday afternoon." Choute and Penago also testified. They both appeared to be credible witnesses. Choute testified that sometime after 1 September he went with Feliciano to Respond- ent's offices. He testified that Feliciano did all the talking and told Respondent's representative that "Mr. Choute used to work at the Whitney Museum. You . . . took over that location, therefore you have to hire Mr. Choute at that location." Respondent's representative re- plied, "We don't have any opening right now." When Feliciano asked for an application to fill out for Choute, the representative replied, "We don't give any applica- tion without an appointment." Penago testified that he went with Feliciano to Respondent's offices during the last week of July. He stated that Feliciano told Respond- ent's representative that Penago worked at the Whitney Museum and that he was going to fill out an application "to work there again," to which the representative re- plied "there was no work." Penago further testified that 526 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD never filled out an employment application for Respond- ent. In addition, Penago stated that Feliciano told him that Respondent was supposed to hire him with the same salary and the same benefits that he enjoyed while work- ing for Allied and at the same location. Feliciano did not appear to have a good recollection of the events. Although he testified that he went to Re- spondent's offices with Choute on 31 July, his affidavit stated the date of the visit to be 17 July. I credit Choute's testimony that he was on vacation during August, and when he returned he went with Feliciano to Respondent's offices after 1 September. Feliciano also testified that he went to Respondent's offices with Penago on 1 August. He spoke to Considine each time and Considine said that no positions were available. Feli- ciano testified that Considine did not tell him about the Monday procedure for job interviews. When asked what Considine told him about new hires for the Whitney Museum, Feliciano conceded, "He told me that there [were not] any new hires, only that they were trying to place their own personnel at the present time ." Feliciano further stated that after 1 August he never called Re- spondent to fmd out if there were any openings nor did he follow up the matter in any way. B. Discussion and Conclusions Based on the above, I find that around the last week of July Penago went to Respondent's offices accompa- nied by Feliciano. Feliciano spoke to Considine and re- quested that Penago be employed to work at the Whit- ney Museum . Considine told Feliciano that Respondent was not hiring employees to work at the Whitney. This was consistent with Dellacona's credited testimony that because the Whitney account was so important he wanted to assign only those employees whose work he "had an opportunity to review," and that, accordingly, no "new hires" were being assigned to work at the museum. Considine informed Feliciano that Penago could call to make an appointment for a Monday after- noon interview. This was Respondent's standard proce- dure for interviewing applicants, which the record shows was followed in most instances. Indeed, when Hyland, the Union's own employee, appeared at Respondent's of- fices on Friday, 25 July, he was told to return the fol- lowing Monday afternoon for an interview . Penago never called to arrange a subsequent interview. On 31 July the Union sent Respondent a mailgram that stated, in part, "the Union wishes to file unconditional application for employment" on behalf of Diaz, Choute, and Penago. On receipt of the mailgram Considine called the Union's office and spoke to Sampson. I credit Consi- dine's testimony that Sampson stated during the conver- sation that he wanted Respondent to employ the individ- uals at the Whitney Museum. Considine replied that he was not hiring people to work at the Whitney and that Sampson could have the men call to make appointments and come in to Respondent's offices for interviews and to fill out applications. About a month later, sometime after 1 September, Feliciano returned to Respondent's of- fices with Choute. Feliciano again stated that he was there to apply for employment for Choute at the Whit- ney Museum . Considine replied that he was still not ac- cepting applications for employment at the Whitney and again suggested that the individual could call and make an appointment for an interview on Monday afternoon. With respect to Diaz, the complaint alleges that on or about 22 July he applied or employment with Respond- ent and was not hired. The record does not support a finding that Diaz applied for employment on 22 July or at any other time. The record shows that Diaz has been working for the Whitney Museum as a mechanic since sometime in July. The complaint also alleges that Choute unsuccessfully applied for employment on 22 and 31 July and that Penago similarly unsuccessfully applied for em- ployment on 22 July and on 1 August. The record does not support findings that either Choute or Penago ap- plied for employment on 22 July. The record does show, however, that Penago came to Respondent's offices during the last week of July and that Choute came to Respondent's offices sometime after 1 September. I find that Respondent did not refuse to hire Choute and Penago because they were union members. When they came to Respondent's offices, Feliciano asked on their behalf that they be employed at the Whitney Museum. Feliciano was told that no new hires were being assigned to the Whitney. However, if the two indi- viduals wished to apply for other cleaning jobs with Re- spondent, they were to call and make an appointment for a Monday afternoon interview . This was in accordance with Respondent's general procedure for conducting interviews. Choute and Penago did not comply with that procedure. On 31 July the Union sent a mailgram to Respondent stating that it wishes to file "unconditional application for employment" on behalf of the individuals. As of 31 July the record shows only Penago to have come to Re- spondent's offices and at that time Feliciano requested that Penago be employed to work at the Whitney. Al- though Hyland, who prepared the mailgram, testified that he was not aware of any prior conditions having been placed, it is possible to construe the mailgram as an attempt to eliminate the condition that Penago be consid- ered for employment only at the Whitney. However, during the conversation between Considine and Samp- son, which took place after Respondent had received the mailgram, Sampson reiterated the request that the indi- viduals be employed at the Whitney Museum. That the Union continued to adhere to its position that the indi- viduals be employed only at the Whitney is buttressed by the fact that a month later , when Choute appeared at Re- spondent's offices, Feliciano again requested that Choute be hired to work at the Whitney Museum. I find that Respondent refused to hire the individuals in question because they requested to work specifically at the Whitney Museum and Respondent was not hiring new employees for work at that location. In addition, the individuals never arranged for Monday interviews, which the record shows is Respondent's standard time for interviewing new applicants for employment. Ac- cordingly, the allegations are dismissed. MAID IN NEW YORK CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. 527 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The complaint is dismissed. 2 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