American Industrial Cleaning Co , Inc

AMERICAN CLEANING CO 399 American Industrial Cleaning Co , Inc and Local 32B-32J, Service Employees International Union, AFL-CIO Case 29-CA-12690 October 21 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On April 28 1988, Administrative Law Judge Robert T Snyder issued the attached decision The Respondent 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,2 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent American Industrial Cleaning Co Inc Great Neck New York its officers, agents successors, and assigns shall take the action set forth in the Order I In its brief the Respondent which was not represented at the hearing by an attorney but by its president Myron Stempa contends that this proceeding should be reopened and referred to a different judge for a hearing de novo because the judge failed to protect the rights of a pro se respondent We have carefully reviewed the record in light of the Re spondent s contention and find that as Stempa was accorded a full and fair opportunity to present the Respondents case and cross-examine wit nesses its contention is without meet See To State Transport Corp 245 NLRB 1030 fn 1 (1979) 2 The Respondent has excepted to some of the judge s credibility find ings 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 Elias Feuer Esq for the General Counsel Myron Stempa President for the Respondent DECISION STATEMENT OF THE CASE ROBERT T SNYDER Administrative Law Judge This case was heard by me on 17 August and 8 September 1987 at Brooklyn New York The complaint which issued on 3 December 1986 alleges that the Respondent as a successor employer to another employer in the per formance of cleaning and maintenance services at an office building in Hempstead New York refused to hire its predecessors work force because of their affiliation with the Charging Union and thereafter refused to bar gain collectively with the Union as the exclusive repre sentative of its service employees in the appropriate unit in violation of Section 8(a)(3) and (1) and Section 8(a)(5) and (1) respectively of the Act Respondent American Industrial Cleaning Co Inc (Respondent or American) filed an answer in which it denied having committed the unfair labor practices alleged All parties were given full opportunity to participate to introduce relevant evidence to examine and cross ex amine witnesses to argue orally and to file briefs Both counsel for the General Counsel and Respondent repre sented by its president Myron Stempa waived the filing of briefs and summed up at the conclusion of the hear ing All arguments made by the parties have been care fully considered On the entire record including my observation of the demeanor of the witnesses I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION STATUS At all times material Respondent a New York corpo ration has maintained its principal place of business at 10 Chelsea Place village of Great Neck town of North Hempstead county of Nassau and State of New York and a place of business at 425 Broad Hollow Road vii lage of Melville town of Huntington county of Suffolk and State of New York and various other places of busi ness in the State of New York including a worksite lo cated at 175 Fulton Avenue in the town of Hempstead county of Nassau and State of New York (Respondent s Hempstead facility) where it has been continuously en gaged in providing cleaning and maintenance services and related services The worksite at 175 Fulton Avenue Hempstead New York is an office building owned by the First Republic Corporation of America (First Repub lic) a New York corporation engaged in the ownership management operation and rental of office buildings with an office and principal place of business located at 302 Fifth Avenue City and State of New York and an office located at Respondents Hempstead facility During 1986 Respondent in the course and conduct of its business operations provided services valued in excess of $1 million to various enterprises located within the State of New York including First Republic which en terpnses are directly engaged in interstate commerce meeting one of the Board s standards of the assertion of jurisdiction exclusive of indirect outflow or indirect inflow Based on the foregoing which Respondent ad mitted in its answer I find that Respondent is and has been at all times material an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act Respondent admits and I also find that the Union is and has been at all times material a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES For some years the Union has represented the service employees employed in performing cleaning services at the office building located at 175 Fulton Avenue Hemp stead New York in collective bargaining with the clean 291 NLRB No 68 400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing service companies that have over the years had contracts with the building owner to clean and maintain the building and its offices For a period of time until 14 October 19861 Tempco Service Industries Inc (Tempco) held the service and maintenance contract from First Republic to perform these services and it had a collective bargaining relationship with the Union which represented its employees in a bargaining unit consisting of all full time and regular part time service employees employed at the Hempstead facility exclusive of all office clerical employees guards and all supervi sors as defined in Section 2(11) of the Act The most recent collective bargaining agreement concerning the unit was effective from 1 March 1984 to 31 December 1986 By letter dated 10 September 1986 Louis H Nimkoff assistant vice president of First Republic informed Tempco that pursuant to a provision of their contract dated 31 October 1984 30 days from receipt of the notice First Republic was terminating their contract and included 11 October as that date Myron Stempa Respondents president testified that after years of soliciting the service and maintenance work at the 175 Fulton Avenue building and after being solicited to bid and bidding on the service contract for that facility in the spring or summer he was informed in August that his company had been awarded the contract At the time Nimkoff expressed a little concern to Stempa and an associate about the possibility of having a prob lem with the Union Stempa said he saw no reason for such concern Nimkoff also informed Lorenzia Weaver its building superintendent at 175 Fulton Avenue that the new cleaner was cheaper than the people they were dealing with According to Weaver the service employ ees of Tempco had the responsibility of vacuuming the floors cleaning and dusting the offices removing trash mopping the public corridors and cleaning the bath rooms at the Hempstead building He evaluated their work as good with few complaints from building tenants Tempco employed eight service employees at the Hempstead building at the time its contract with First Republic terminated They were Peggie Woody Lillian Houston Dorothy Burke Chester Campbell Mattie Jackson Esperanza Gonzalez Nelly Herrera and Ruel Brooks Six of them testified about events that transpired shortly after Tempco s contract ended All but one had worked at the building many years for successive em ployers Peggie Woody the union shop steward had worked at the building for 7 years and was earning $5 63 an hour when her work for Tempco ended on Friday 10 Octo ber Chester Campbell the foreman told her on that day that when she finished her shift from 5 to 10 p m to bring her barrel apparently including cleaning tools to the basement Monday 13 October was Columbus Day a holiday Woody and some of the other employees re ported to the building late in the afternoon on Tuesday 14 October to see if they still had jobs and could contin ue working for the new service contractor Besides All dates hereinafter cited shall be in the year 1986 unless otherwise noted Woody who arnved at 4 30 p in Houston Burke Jack son Gonzalez and Herrera also reported to the jobsite between roughly 4 30 and 5 15 p m Woody and Houston who arrived about the same time went to the basement where they saw a man who did not identify himself but who later confirmed their physical identification of him He was Harry Robbins who had been assigned by Myron Stempa to oversee the commencement of Americans cleaning of the building and its offices under its service contract the evening of 14 October Woody testified that she asked Robbins if he was taking applications for employees Robbins said no they were bringing in their own workers Woody asked him why Robbins replied because the building owner did not want union workers there anymore because they were too expensive Woody said Suppose we take a cut in pay Robbins said he still did not want them We are having our own workers in Robbins added because we were once in the union he did not want union work ers in there because we would be too much problem Robbins said to give him our phone number and if there was a position open he would hire us The assembled employees then gave him their names addresses and phone numbers Woody was never thereafter contacted by American Before leaving Woody inquired of an em ployee who was cleaning the floor where she previously worked a Joe Jackson when he had been hired He said that day 14 October Lillian Houston testified that she had worked at the 175 Fulton Avenue Hempstead office building for 14 years Her work hours had been from 5 p in to 11 30 p in When she arrived with Woody she saw a strange man in the lobby talking on the telephone This was Harry Robbins When he got off the phone she said hello are you the new man taking the building He said yes he was They all then went downstairs and stood near the building superintendents office in the basement When the employees asked for their positions Robbins told them I got my own people I can t use you because you re in the union and the man this man don t want no union in the building He was talking about the owner of the building Robbins then asked for their names and telephone numbers and said he would call Houston was not thereafter contacted by American Mattie Jackson testified that she had worked at the Hempstead building for 21 years and had finished up for Tempco on the Friday in October When a new cleaning company took over the cleaning of the building the rou tine was for the company that was finishing up its con tract to direct its employees to take their cleaning equip ment containers vacuum cleaner mop brooms and rags to the first floor when they finished up on the last day When the new company came in the following day the same employees reported for work and were issued new cleaning tools and equipment For 20 consecutive years Jackson had worked there under successive union con tracts Jackson returned to the building Tuesday 14 October a few minutes after 5 p in As was usual in such in stances she reported to the basement where the new AMERICAN CLEANING CO 401 company would issue new equipment and the employees would talk to the new person in charge When she ar rived she especially recalled seeing Burke Houston and Woody gathered near and talking with a man who has been identified on the record as Robbins He asked her if she worked here When she said yes he asked her for her name and phone number which she gave Subsequently she received a typed letter dated 3 De cember on Respondent letterhead stating If you are in terested in employment kindly contact our office to make an appointment for an interview and signed by Myron Stempa Jackson called the telephone number listed on the letterhead identified herself and was put through to a man She gave her name said she had re ceived a letter from him and asked if he had work The man told her At the moment I do not have work If I get anything in 111 let you know 111 write you a letter She thanked him The record contains no evidence of any further communication from Respondent with Jack son Another employee Esperanza Gonzalez also testified She had worked at the Hempstead office building for a year and a half After finishing work on 11 October she also next reported to the building on 14 October She went there after 5 p in with Nelly Herrera When they arrived they asked someone associated with the building owner for the keys apparently to the offices they cleaned They were told no go downstairs to the base ment because there s no more job no more work They went to the basement and saw a tall black man Robbins talking with the other cleaning women she had worked with She learned from him there was no more job and a new company coming in had people He asked her for her phone number and address and said they would call and contact her She supplied this information She later received a letter from the company When she called the number listed she was told they had a job for her at night in Farmingdale Gonzalez said it was too far from her home in Hempstead She also explained that she did not drive a automobile and had no means of transportation That was the end of the conversation Gonzalez explained on the witness stand that she lived one block from her prior job at 175 Fulton Avenue Hempstead and she needed a job near her home because she had children No other job offers were made to her by American Dorothy Burke had worked at 175 Fulton Avenue Hempstead for 20 years Her last day of work at the building was 10 October She returned on 14 October at 5 p in and went to the basement where she saw a heavy black man Robbins standing with Woody and Houston nearby When she arrived Robbins asked her if she was one of the cleaning people She said yes He then told her Well you no longer have a job in this building When Burke asked why he said Because this is a nonunion cleaning company and due to you are in the union you will not have a job here Burke said Why you all didn t tell us this before now Robbins re plied Its not my place to tell you Tempco should have told you They knew 30 days ago that they had lost the contract He then asked her for her name and tele phone number and told her if we have an opening we will call and let you know because we have plenty of jobs out here on the Island Burke also independently recalled Robbins telling her if you weren t in the union you would have the first choice to have a job here in this building cleaning Before Burke left the basement Jackson and then Gonzalez and Herrera also arrived Including herself Woody and Houston six employees had reported to the building that late afternoon Burke later received a letter from the company When she responded by phone she was told by a man to whom she was referred that at the moment We do not have anything but as soon as we get something we will let you know She has not heard from him since Nelly Herrera another service employee let go by Tempco on 10 October testified that she returned to the 175 Fulton Avenue building with Gonzalez about 5 p in After being informed that the new man from the new company was in the basement and they should not take the keys they went to the basement and saw the new man speaking to their fellow workers As they ap proached one of her co workers told him they both had worked there referring to Gonzalez and Herrera Herre ra testified that as the man continued speaking she under stood him to say that they didn t have a union and probably they couldn t pay us the same that we were making with Tempco 2 She was then asked for her name address and telephone number and she gave him this information She later received a letter in December from Respond ent to contact them if interested in employment Herrera went to American s Great Neck office in a friend s car and met Stempa and another man later identified as Fred Hellman Respondent s manager The other man of fered her a job in Roslyn Herrera said it was too far from where she lived Herrera lived in a building close to the Hempstead office building The man said they probably would get her closer She also signed a paper stating that the Company offered her a job That same evening at 10 p in she received a call from the same man offering her a job cleaning a bank in Hicksville Monday through Saturday Herrera asked how much she would get paid She was told $4 an hour Herrera asked again following the questioning of the American repre sentative on 14 October if there was a union there and was told no Herrera recalled her pay at Tempco under the Union s contract had been $5 57 an hour for a 30 hour week Monday through Friday Herrera told the man she was looking for a better offer because she was then working in a place where she was making more In her present job Herrera was also covered by a union contract Lorenzia Weaver superintendent of the 175 Fulton Avenue building for First Republic was examined by the General Counsel among other things about his recollec tion of events at the building around 5 p in on 14 Octo ber At that time he was walking into the basement office accompanied by the assistant superintendent He saw Harry from American Industrial and employees 2 Herrera Spanish speaking was now testifying with the aid of an in terpreter Her earlier testimony in English relating Robbins remarks in this regard before she was so assisted were substantially similar 402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD from Tempco standing in the corridor He had met Harry Robbins earlier when the First Republic office manager had introduced him and told Weaver and his as sistant that Robbins would be the night supervisor for American Industrial Weaver recognized Woody Houston Jackson and Burke along with two others whose names he did not know Through a closed glass office window Weaver observed Harry and the employees standing there for about 15 minutes Weaver reported he did not hear ev erything that they said He was aware that the employ ees had come to the basement one by one to find out what was going on During his cross examination by Stempa Weaver testified he heard Peggie Woody ask Harry were they going to be kept on and he told them no because he had is own people That was as much as he heard He did not hear any discussion that the em ployees could not or would not be hired because they had a union affiliation Neither did Weaver hear Harry say that if they were interested in work they could con tact their office By certified letter dated 17 November addressed to Respondent which Respondent stipulated it received the Union advised that it represented the building service employees at 175 Fulton Street (sic) who were terminat ed by Respondent on 15 October made an unconditional application for employment on behalf of the employees and requested a conference for the purpose of negotiat ing wages terms and conditions of employment On 19 November the Union sent a mailgram to Respondent re peating its claim of representing the service employees at 175 Fulton Street Hempstead New York and again re questing a conference at which it could submit the type of agreement the Union was desirous of having to cover the employees Although the Union in each correspondence listed the name and telephone number of its representative for Stempa to contact Stempa testified he did not respond to either Not having any affiliation with the Union not wanting to have an affiliation with them he felt no need to respond to them at that particular time although had he received the letter before American began service he would have responded As for the actions of Harry Rob bins Stempa swore he never discussed Union with him Robbins was not empowered to even go into such mat ters and to his knowledge had no contact with Nimkoff prior to or after American began the contract Finally Stempa asserted it was not within Robbins power to hire or to fire people and certainly he was not authorized to terminate any body from Tempco because they did not work for the Company Stempa explained that Robbins was at the 175 Fulton Avenue building because American was beginning the cleaning service there The company had secured its em ployees for the building through its usual means by ad vertising Some people who were working for American at the time and who needed more work were sent to that job American had lined up a complete crew for the job It was Robbins function to be responsible for the job to have all the equipment that was necessary to apportion out the work to the employees who were there to deter mine any special needs of the client from the owner s office manager and to oversee the cleaning of the build ing Robbins was to remain at the site every night for 2 or 3 weeks He also had other buildings where American had cleaning contracts on Long Island in the vicinity of Hempstead that he had to check on The nature of Rob bins job was to supervise the program of cleaning to set up a building that the Company gets a contract to clean by overseeing the quality of the work that its up to standards and that everybody comes in If there is any absenteeism Robbins gets that work covered by some body that is on the job or by getting someone from an other job to cover the particular location that was not being cleaned Stempa noted that he was phasing Robbins out that he was not happy with his performance and at the time that the 175 Fulton Avenue job started he had taken away almost all of Robbins other work and because the building was a rather large one had assigned Robbins to spend most of his time there to see that the building was cleaned properly Robbins was terminated 1 month to 6 weeks later because of the poor quality of his work Robbins was paid a weekly salary which Stempa characterized as a pretty high salary for what he was doing Robbins had the working relationship with the entire crew in the supervising of the way they cleaned He also broke in new employees Anne Day a forelady was also in the buildings crew and she shared that work with Robbins Robbins while employed among other key middle management and supervisory employees of American like them received certain medical benefits among other benefits not available to the other mostly part time non supervisory employees American employs approximately 150 employees to do cleanup work None of them are union employees and American does not have any collective bargaining agree ment with any labor organizations According to Stempa now undergoing cross examina tion and contrary to his earlier testimony about sending employees from other jobs Anne Day was instrumental in getting most of the employees for the 175 Fulton Avenue building job Among other new employees who started with American at the site was a Robert Day who was hired on 26 October almost 2 weeks after the job started He was a relative of Anne Day Stempa also testified that in a position paper which he forwarded to the Board on 30 October he may have indicated that the supervisor Robbins had hired some of these employ ees Stempa also acknowledged that more than three em ployees could have been replaced on the 175 Fulton Avenue cleaning job since it started not including Robert Day if he was a replacement The Respondents only witness other than Stempa was Harry Robbins who had been out of the jurisdiction on the original date of hearing but subsequently testified on an adjourned date During the initial hearing day at the point that the General Counsel rested his case Stempa representing the Respondent stated that al though he had read the summary of standard procedures in formal hearings held before the Board in unfair labor practice proceedings which accompanied the complaint AMERICAN CLEANING CO 403 served on Respondent he had not realized that the hear ing would involve the presentation of testimony by the General Counsel witnesses who appeared He thus felt it essential to have Robbins as a witness It is significant to note that in a letter Stempa on behalf of American sent to the Regional Office of the Board dated 3 December the same date the complaint issued but 2 days before its service on Respondent he sought to confirm statements he had made in an earlier telephone conversation with the Board agent One of these statements was the following On the evening of October 14th 1986 between the hour of 5 00-6 30 p m approximately Harry Robins was in our offices at the above location actually involved in discussion with sev eral of our employees The above location was Amen can s principal place of business at 10 Chelsea Place Great Neck New York printed on its letterhead At tached were two handwritten letters signed and dated by Jose Pantoja assistant operations manager and Steve Czap account executive respectively in which each of them confirmed that Robbins was at the Great Neck office on 14 October when the General Counsel wit nesses placed him talking with them at the Hempstead office building Pantoja wrote that between the hours of 4 and 7 p in he had conversations with Harry Robbins and others in his office at the Company s office in Great Neck Czap wrote that between the hours of 5 15 and 6 30 p in Harry Robbins was in his presence in Amen can s office at 10 Chelsea Place Great Neck Now on the adjourned date Harry Robbins testified that on the first day that Respondent started up cleaning services at 175 Fulton Avenue in Hempstead he arrived there I guess about 5 30 6 As he was waiting for the American truck to come in with supplies the former em ployees there approached him for work He told them that our own staff that they was [sic] hired from the office and that was it Robbins denied at any time having any discussion with these former employees re garding a union situation in the building He was not under the impression that the owner of the building did not want union employees in the building In his 5 years with the Company he had never known the Company to refuse employment for people that were members of a union American hired the employees for the 175 Fulton Avenue job through the office He recalled one change in employees since the job started That was the hiring of a family member of Day to take her place when she became supervisor of the building Robbins claimed that the employees were lying when they testified he refused them employment because they were union members or because the owner of the building did not want to have union people working in the building On cross examination Robbins said that the discussion with the women seeking work had taken 10 to 15 min utes yet he could not recall anything else he had said other than asking them for their telephone numbers and addresses so he could place them someplace else as soon as he got an opening Robbins was also sure that the group he spoke with included men as well as women A significant credibility issue must be resolved involv ing the diametrically opposed key versions of the con versation held between the Tempco employees and Harry Robbins presented by the employees on the one hand and Robbins on the other The testimony offered by the building superintendent Weaver must also be considered All six of the employees who gathered on 14 October in the basement of the 175 Fulton Avenue building to learn about their prospects for continued employment by the new cleaning contractor testified about their appear ance there and their participation in the conversation with Respondents representative They said that they did not all arrive at the same time Woody and Houston arrived first They each testified credibly that after Rob bins informed them that the Company was bringing in their own workers he informed them that the building owner did not want union employees or a union in the building Woody more articulate of the two explained that Robbins explanation regarding why they were not being hired was in response to a specific question she had asked regarding why the Company was bringing in its own workers She also added that as part of his expla nation Robbins referred to the additional expense of union workers Houston s testimony was consistent with Woody s but not as detailed Burke who next arrived on the scene apparently a few minutes later presented a version that was entirely consistent with Woody s and Houston s She placed more emphasis on Robbins reliance on the fact that be cause the new company was nonunion and they the as sembled employees were in the Union they would have no job In essence this was the same thing that Woody and Houston testified they had been told Burke s testa mony also shows that Robbins in providing his explana tion was replying specifically to her inquiry made after his earlier explanation provided to Woody and Houston Neither Jackson nor Gonzalez testified to any state ment made by Robbins in their presence in which union considerations were a factor in denying them employ ment at the building In Jackson s case it is apparent that at the time she appeared Woody Houston and Burke had already been engaged in conversation and she did not ask any questions that might have led Robbins to ex plain again why she was not being hired Because she was not present when Robbins answered the inquiries of the other three there is no conflict with their testimony about to the part their union membership or the Union s past bargaining relationship at the building played in the employees being rejected for employment by Respond ent Gonzalez arrived with Herrera the last two of the six to appear at the building on 14 October Gonzalez testa feed she found out that there was no work for them from the other employees there Herrera testified she heard Robbins say the Company did not have a union and probably could not pay the same as they were making with Tempco This is a variation on the testimony of Woody Houston and Burke but neither does it conflict with their attribution to him of the statement hinging his refusal to hire them on their union affiliation Although more indirect it introduces union considerations and mo tivation into a discussion in which they sought continu ation of their jobs at the site and the new company re 404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD jected their applications It also took place after Robbins had provided the first two employees to arrive with an explanation related more to the building owner s antiun ion feelings which by the time Burke had made her in query had changed to a reliance on Respondents own nonunion situation Thus Robbins comments now to Herrera were more in line with the explanation provided the employee who had immediately preceded her in ar riving at the building Robbins comments at this time appear also to be more in the nature of an amplification and justification for his earlier rejection of them as em ployees It is noteworthy that Woody also attributed to Robbins a reference to the additional expense the hiring of union workers would entail another way of saying as Herrera heard him that the Company could not afford to pay them the wages or benefits they had received with Tempco The fact that Gonzalez did not testify to Robbins co ercive explanation does not in my judgment make less credible the testimony of the four employees who heard such views expressed She did not attribute any direct statements to Robbins dealing with the subject of the loss of their jobs at the building but only with those in which he requested information from her for a possible future job elsewhere In receiving an explanation as to her status from the others already there she may not have heard the comments Herrera testified she heard him make Being Spanish speaking and having testified with out the aid of an interpreter as Herrera later did she may have failed to articulate portions of a conversation speaking in a language in which she was not fully able to communicate In any event Gonzalez testimony does not conflict with that of the four who testified to hearing Robbins expressions of antiunion views I also find that Weaver the building superintendent as he himself explained did not overhear the later portions of the employees discussion with Robbins in which he provided them with the explanation concerning why the Company had obtained its own people and would not continue them in servicing the building Neither did he hear Robbins solicit information in order to provide the employees with other work comments which Robbins acknowledges he made Weaver did provide corrobora tion of the fact that six employees came to the basement at staggered times to find out about their job and that Harry Robbins spoke to them Although he did not recall the names of two of them in light of the testimony of the General Counsel s witnesses it is clear that Rob bins must be discredited on his assertion that there were men as well as women employees who approached him in the basement that day In weighing the corroborative testimony of the women employees against Robbins flat denial that he rejected their applications on union grounds I credit the employ ees and find Robbins account lacking in authenticity and genuineness Robbins fails to account for any questioning by the employees of his initial statement that the Compa ny had hired its own staff or even any further discussion of the matter It seems unlikely that none of the six women would have forgone this occasion to press him on why they were not being hired after reporting specifi cally to commence work or that Robbins would have failed to provide further justification for his refusal to hire them It is also likely that Robbins would have been privy to Stempa s thinking on filling Respondent s work needs under its service agreement as well as First Repub he s expression of concern about union problems He had worked for the Company for about 5 1/2 years and was responsible for starting up and running the service oper ation at the building No doubt the Company s low bid was predicated on maintaining an operation free from union obligations and Robbins was aware of his role in avoiding additional costs that would jeopardize a profita ble relationship with the building owner Finally I deem it significant that the Respondent al tered its main defense after the employees testified from an initial denial that Harry Robbins was at the 175 Fulton Avenue building when the workers claimed they confronted him supported by the written word of two of his cohorts to finally admitting his presence but now denying that he had uttered any of the discriminatory re marks Such a profound turnabout in its strategy im peaches Respondents motive and the credibility of its defense particularly that of its principal officer Myron Stempa who personally adopted the discredited position of subordinates that Robbins was at Respondents main Great Neck office when the conduct attributed to him took place at the Hempstead office building It reveals a disregard for the truth and a calculated willingness to mislead in order to avoid the legal consequences of its misconduct Analysis and Conclusions Aside from the issue of credibility whether Robbins uttered the statements attributed to him which I have concluded he did Respondent also raises the issue whether Harry Robbins was an agent acting on its behalf and a supervisor within the meaning of Section 2(11) of the Act whose conduct may have bound Re spondent under the doctrine of respondeat superior A fair evaluation of the evidence convinces me that Robbins was a supervisor under the Act He was em powered by Stempa to direct the employees in the per formance of their duties having the discretion to reas sign them within the building and from other jobs of Re spondent and to train new employees He also had dis cretion to do whatever proved necessary to satisfy any special needs of the building owner in the employees carrying out of their cleaning tasks taking Robbins functioning beyond the routine direction of the employ ees work In reassigning employees from other jobs Robbins direction also went beyond the routine Rob bins had the title of supervisor and received benefits and salary commensurate with his responsibilities and func tions as a key operative in Respondents employ His work normally took him to a number of Respondent worksites where the Company was performing cleaning services for different clients In that role it appears that Robbins was required to exercise independent judgment as to employment and utilization of personnel in ample menting Americans policy objectives of achieving and maintaining high standards of quality in its cleaning oper ations Even Stempa acknowledged that Robbins may AMERICAN CLEANING CO 405 have hired a number of the employees assigned to the Hempstead office building The evidence I have credited also demonstrates that Robbins exercised authority to reject employment applicants who sought work at its jobsites Aside from my conclusion concerning Robbins statu tory supervisory role I also conclude that in represent ing Respondent in meeting the Tempco employees and responding to their inquiries Robbins was acting as American s agent The Tempco employees on arrival were directed to the buildings basement to see the new contractors representative In questioning him about the continued availability of their jobs and receiving his re sponses the employees perceived Robbins as acting for and representing company management when he spoke I therefore conclude that the Respondent was responsible for Robbins conduct in rejecting them as employees be cause of their union affiliation See B P Custom Building Products 251 NLRB 1337 1338 (1980) I also conclude that the General Counsel has estab fished a prima facie case of discriminatory refusal to hire the eight named employees who comprised the Tempco workcrew at 175 Fulton Avenue through the termination of Tempco s service contract on or about 11 October According to the credited testimony of four of the Tempco employees Respondents agent and supervisor hinged the Company s refusal to hire the Tempco service employees on their union affiliation and union represen tation in the bargaining unit at the Hempstead facility Myron Stempa Respondents president was aware at least since about the time his company was awarded the service contract that Tempco the predecessor cleaning contractor had a bargaining relationship with the Union and was paying union contractual wages and benefits Respondent was a nonunion contractor that had no bar gaining relationship with any unions on behalf of its em ployees American s low successful bid on the contract for the Hempstead facility was calculated without regard to union wages or fringe benefits for the service employ ees In proceeding to obtain staff for the Hempstead facile ty Respondent went to its usual sources including ad vertising Contrary to Stempa s initial claim most if not all of the employees who went to work for American at the Hempstead facility were newly hired Under cross examination Stempa first grudgingly admitted they were not all former employees then that Robbins may have hired some and finally that Anne Day who later became forelady at the site was instrumental in bunging in most of the people As the need for replacement em ployees subsequently arose Respondent fulfilled its em ployment needs from the same sources including Day The reason Stempa did not continue on the Tempco workcrew as cleaning predecessors at the building had done on past occasions became abundantly clear in Rob bins remarks to the assembled Tempco employees as American was just getting underway pursuant to its serv ice agreement with First Republic As its representative made clear in other words the Tempco employees were tainted and not suitable for hiring because they were members of and represented by the Union and if they were to be hired Respondent would be saddled with a union relationship and union terms and conditions of em ployment Places could be found for them individually in other American service operations but their hiring at the Hempstead facility would lead to only one result union obligations and higher employee costs A refusal to employ expressed in such terms supports the conclu sion that American refused to hire the alleged discrimin atees because of their support of the Union in violation of Section 8(a)(3) and (1) of the Act See American Press 280 NLRB 937 (1986) Ryder System 280 NLRB 1024 (1986) Respondent is hardly in a position to overcome the General Counsels prima facie case because it failed to produce any evidence apart from the protected activities of the employees on which it relied to justify its failure to hire the alleged discriminatees See NLRB v Transpor tation Management Corp 462 U S 393 (1983) When in mid November the Union on their behalf inter alia made unconditional application for their employment Stempa admitted he failed and refused to reply not wanting to have an affiliation with the Union Further more although Stempa made a general accusation that Tempco s services had been poor there is no credible evidence to support that charge First Republics own building superintendent supported the contrary judgment that Tempco s services had been of a high order and that quality was not a hallmark of Americans operation From all that appears First Republics solicitation of bids for a new cleaner and selection of American had been motivated by a desire to limit costs and not because of any lack of quality of Tempco s services under its contract In its answer American did not dispute the appropn ateness of the bargaining unit limited to the full time and regular part time service employees of Respondent em ployed at its Hempstead facility Indeed that had been the unit with respect to which Tempco and its predeces sor contractors had bargained over the years with First Republic By letter and mailgram the Union in mid November claimed to represent the service employees at the Hemp stead facility and demanded bargaining over their wages terms and conditions of employment As noted although acknowledging their receipt Stempa chose not to reply wishing to avoid any dealings with the Union and rely ing on American s hire of a full complement of nonunion employees to staff the Hempstead facility In order for the Union to be able to succeed on the refusal to bargain allegation there must be a preliminary finding that American constitutes a successor employer to Tempco As the Board has noted a purchaser of a business may have certain legal obligations imposed on it Where there is substantial continuity in the identity of the employing enterprise one such obligation will be that of the employer to recognize and bargain with a union that represents the former owner s employees However if in the course of the transfer there have been substantial and material changes in the employing enter prise the new employer will not be found to have suc ceeded to the bargaining obligation of the former em ployer Mondovi Foods Corp 235 NLRB 1080 1082 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1978) See NLRB v Burns Security Service 406 U S 272 (1972) The traditional criteria the Board examines to deter mine whether there has been substantial continuity in the identity of the employing enterprise include whether there has been substantial continuity in (1) business oper ations (2) plant (3) work force (4) jobs and working conditions (5) supervisors (6) machinery equipment and methods of production and (7) product or service Grico Corp 265 NLRB 1344 (1982) In Mondovi Foods Corp supra the Board explained that a prime factor in determining whether the new em ployer has succeeded to the former employers bargain ing obligation is whether the purchaser has hired a suffi cient number of former employees of the seller to consti tute a majority of the employee complement of the ap propriate unit See NLRB v Burns supra Howard John son Co v Hotel Employees 417 U S 249 (1974) Spruce Up Corp 209 NLRB 194 (1974) Once it has been found that the purchaser has hired such a majority the Board considers such circumstances as whether or not there has been a long hiatus in resuming operation a change in product line or market or a change of location or scale of operations Mondovi Foods supra at 1082 In cases in which but for unlawful considerations the continuity of the predecessors employee complement would have been maintained the Board has commented It is well established that where the other requisite ele ments for finding successorship are present a new owners failure to hire its predecessors employees will not defeat a claim of successorship if such failure is shown to have been motivated by the former employees union affiliation American Press supra In the same case the Board went on to conclude that when a successor employer has discriminated in hiring it can be inferred that substantially all of the former employees would have been retained absent the unlawful discrimination See also Ryder System cited supra Applying these principles to the instant facts it is clear that American is the successor employer to Tempco But for Respondent s unlawful conduct probably all and cer tainly a majority of the work force would have been composed of employees of the predecessor employer Furthermore American commenced its operations imme diately without any hiatus the same service continued to be performed at the same location for the same customer using the the same jobs similar equipment methods and operations Accordingly I conclude that Re pondent as a successor employer violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union In accordance with my findings above I make the fol lowing facility exclusive of all office clerical employees guards and all supervisors as defined in Section 2(11) of the Act constitute a unit appropriate for the purposes of collec tive bargaining within the meaning of Section 9(b) of the Act 4 At all times material the Union has been the exclu live representative of all the employees in the above unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 5 Respondent American Industrial Cleaning Co is a successor employer to Tempco Service Industries Inc and by disavowing its bargaining obligation to the Union and departing from preexisting rates of pay and benefits without prior notification to and bargaining with the Union the Respondent violated Section 8(a)(5) and (1) of the Act 6 By telling employees that they would not be hired because of their union affiliation the Respondent has violated Section 8(a)(1) of the Act 7 By failing to hire the employees named in paragraph 2(a) of the Order because of their union affiliation the Respondent in each instance engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act by interfering with the exercise of their rights guar anteed in Section 7 of the Act and by discriminating in regard to their hire or tenure of employment thereby discouraging membership in a labor organization 8 These unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) (3) and (5) of the Act I shall recommend that the Respond ent be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the poli cies of the Act The Respondent shall be required to offer employees Ruel Brooks Dorothy Burke Chester Campbell Esperanza Gonzalez Nelly Herrera Lillian Houston Mattie Jackson and Peggie Woody employ ment in their former jobs or if those jobs no longer exist to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed discharging if necessary employees hired from other sources on and after 14 October 1986 to make room for them and make them whole for any loss of earnings that they may have suffered due to the discrimi nation against them from 14 October 1986 until proper offer of reinstatement 3 less net intenm(earnings as pre scribed in F W Woolworth Co 90 NLRB 289 (1950) with interest thereon as computed in New Horizons for the Retarded 283 NLRB 1173 (1987) 4 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 All full time and regular part time service employ ees of American Industrial Cleaning Co as successor to Tempco Service Irdustries employed at its Hempstead 9 Respondent s job offers to some of the discrimmatees whatever their other deficiencies were clearly inadequate as a matter of law to toll the running of backpay See Redlands Construction Co 265 NLRB 586 (1982) Campbell Harris Electric 263 NLRB 1143 (1982) enfd 719 F 2d 292 (8th Cir 1983) Electric Machinery Co 243 NLRB 239 (1979) 4 Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment of 25 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Corp 231 NLRB 651 (1977) AMERICAN CLEANING CO 407 Further I shall recommend that the Respondent be or dered to recognize and bargain with Local 32B-32J Service Employees International Union AFL-CIO in the appropriate collective bargaining unit and if agree ment is reached to reduce the agreement to a written contract In addition I shall recommend the Respondent be ordered to cancel on request by the Union changes in rates of pay and benefits unilaterally effectuated and to make the employees whole by remitting all wages and benefits5 that would have been paid absent such changes from 14 October 1986 until the Respondent negotiates in good faith with the Union to agreement or to impasse 6 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed7 ORDER The Respondent American Industrial Cleaning Co Inc Great Neck New York its officers agents succes sors and assigns shall I Cease and desist from (a) Refusing to recognize and bargain collectively with Local 32B-32J Service Employees International Union AFL-CIO as the exclusive collective bargaining repre sentative of its employees in the following appropriate unit All full time and regular part time service employ ees of American Industrial Cleaning Co Inc as successor to Tempco Service Industries Inc em ployed at its Hempstead facility exclusive of all office clerical employees guards and all supervisors as defined in Section 2(11) of the Act (b) Making changes unilaterally in the rates of pay and benefits of the employees in the above unit without notice to and bargaining with the above Union (c) Telling applicants that they will not be hired be cause of their union affiliation (d) Refusing to hire or otherwise discriminating against employees in their hire or tenure of employment because they are members of or gave support to Local 32B-32J Service Employees International Union AFL- CIO or any other labor organization (e) In any other manner interfering with restraining or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer immediate and full employment to Ruel Brooks Dorothy Burke Chester Campbell Esperanza Gonzalez Nelly Herrera Lillian Houston Mattie Jack 5 See Kraft Plumbing & Heating 252 NLRB 891 (1980) Merryweather Optical Co 240 NLRB 1213 1216 fn 7 (1979) B The remittance of wages and benefits is to be made consistent with the make whole remedy set forth above regarding the discnminatees save that where appropriate the amount due shall be paid as prescribed in Ogle Protection Service 183 NLRB 682 (1970) 7 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 son and Peggie Woody without prejudice to their se monty or any other rights or privileges previously en ,toyed discharging if necessary employees hired from other sources on and after 14 October 1986 to make room for them (b) Make whole Ruel Brooks Dorothy Burke Chester Campbell Esperanza Gonzalez Nelly Herrera Lillian Houston Mattie Jackson and Peggie Woody for any loss of pay they may have suffered as a result of the dis crimination against them in the manner described in the remedy section of this decision (c) On request bargain with the Union as the exclusive representative of the employees in the above described appropriate unit concerning terms and conditions of em ployment and if an understanding is reached embody the understanding in a signed agreement (d) On request of the above Union restore the status quo ante that existed prior to the implementation of the unilateral changes made by the Respondent regarding the rates of pay wages and other terms and conditions of employment in the unit described above and make the employees whole by remitting all wages and benefits that would have been paid absent such changes plus interest from 14 October 1986 until it negotiates in good faith with the Union to agreement or to impasse in the manner set forth in 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 (t) Post at its principal office and place of business in Great Neck New York and at its Hempstead facility lo cated at 75 Fulton Avenue Heampstead New York and mail to each of the employees who have been found to be discriminatees entiled to a make whole remedy here under at their last known addresses copies of the at tached notice marked Appendix 8 Copies of the notice on forms provided by the Regional Director for Region 29 after being signed by the Respondents authorized representative shall be posted by the Respondent imme diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no tices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced or covered by any other material (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 8 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 408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form join or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec tion To choose not to engage in any of these protect ed concerted activities WE WILL NOT refuse to recognize Local 32B-32J Service Employees International Union AFL-CIO as the exclusive collective bargaining representative of our employees in the following appropriate unit All full time and regular part time service employ ees of American Industrial Cleaning Co Inc as successor to Tempco Service Industries Inc em ployed at its Hempstead facility exclusive of all office clerical employees guards and all supervisors as defined in Section 2(11) of the Act WE WILL NOT make unilaterally changes in the rates of pay and benefits of the employees in the above unit without notice to and bargaining with the above Union WE WILL NOT tell applicants that they will not be hired because of their union affiliation WE WILL NOT refuse to hire or otherwise discriminate against employees to avoid bargaining with a union WE WILL NOT in any other like manner interfere with restrain or coerce you in the exercise of the rights guar anteed you by Section 7 of the Act WE WILL offer immediate and full employment to Ruel Brooks Dorothy Burke Chester Campbell Esper anza Gonzalez Nelly Herrera Lillian Houston Mattie Jackson and Peggie Woody without prejudice to their seniority or any other rights or privileges previously en toyed discharging if necessary employees hired from other sources on and after 14 October 1986 to make room for them and WE WILL make them whole for any loss of earnings they may have suffered by reason of our unlawful failure to hire them with interest WE WILL on request bargain with the above Union as the exclusive representative of all the employees in the above unit concerning their terms and conditions of em ployment and if an understanding is reached embody it in a signed contract if asked to do so WE WILL on request of the above Union cancel any changes from the rates of pay and benefits that existed immediately before our takeover of the Tempco Service Industries Inc cleaning operation at 175 Fulton Avenue Hempstead New York and make the employees in the above unit whole by remitting all wages and benefits that would have been paid absent such changes plus interest from 14 October 1986 until we negotiate in good faith with the Union to agreement or to impasse AMERICAN INDUSTRIAL CLEANING CO INC