Parksite Group

354 NLRB No. 90 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. The Parksite Group and International Brotherhood of Teamsters, Local Union No. 671. Case 34– CA–11961 September 30, 2009 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBER SCHAUMBER The primary issue in this case is whether the Respon- dent, The Parksite Group (Parksite), discriminatorily refused to hire 10 former employees of its predecessor, with the object of avoiding an obligation to bargain with the Union as a successor employer.1 The National Labor Relations Board2 has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's findings3 and conclusions, and to adopt his recommended Order. 1 On November 26, 2008, Administrative Law Judge Raymond P. Green issued the attached decision. Parksite filed exceptions and a supporting brief, the General Counsel filed a brief in response, and Parksite filed a reply. The General Counsel also filed limited excep- tions and a supporting brief, and Parksite filed a brief in response. On January 16, 2009, after the judge issued his decision, the United States District Court for the District of Connecticut issued an injunction under Sec. 10(j) of the National Labor Relations Act, preserving the status quo with respect to hiring and terms of employment in the bar- gaining unit at issue. Hoffman v. Parksite Group, 596 F. Supp. 2d 416 (D. Conn. 2009). 2 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Liebman and Member Schaumber constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. See Snell Island SNF LLC v. NLRB, 568 F.3d 410 (2d Cir. 2009), petition for cert. filed __ U.S.L.W. ___ (U.S. Sep- tember 11, 2009) (No. 09–328); New Process Steel v. NLRB, 564 F.3d 840 (7th Cir. 2009), petition for cert. filed 77 U.S.L.W. 3670 (U.S. May 22, 2009) (No. 08–1457); Northeastern Land Services v. NLRB, 560 F.3d 36 (1st Cir. 2009), petition for cert. filed 78 U.S.L.W. 3098 (U.S. August 18, 2009) (No. 09–213). But see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009), petition for cert. filed sub nom. NLRB v. Laurel Baye Healthcare of Lake Lanier, Inc., _U.S.L.W._ (U.S. September 29, 2009) (No. 09–377). 3 Many of Parksite’s exceptions are based on disagreement with 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 also deny the Respondent's request for oral argument, as the record, exceptions, ar- guments, and briefs adequately present the issues and the positions of the parties. We agree with the judge that Parksite acted with anti- union animus in refusing to hire the alleged discrimina- tees, and that Parksite would not have made the same hiring decisions absent their affiliation with the Union.4 Parksite accordingly violated Section 8(a)(3) of the Act. We also agree with the judge that Parksite did not unlaw- fully interrogate employees Jeff Ogren or Ivan Vasquez about the Union during their respective hiring inter- views.5 We write to explain the basis for our finding of a refusal for hire violation. I. BACKGROUND Parksite, a wholesaler/deliverer of building materials headquartered in Illinois, operates eight facilities in the eastern United States, including at South Windsor, Con- necticut, the terminal at issue. For most of its history, Parksite has employed its own drivers and warehouse employees at these terminals. In 2005, however, Parksite outsourced these on-site functions to Ryder Integrated Logistics (Ryder), which hired most of Parksite’s em- ployees at that time. Although Ryder operated the eight terminals on Park- site’s behalf and employed its own staff at these termi- nals through 2007, Parksite maintained its own local managers at four of the facilities, including South Win- dsor. The General Counsel’s and Parksite’s witnesses agree that there was ongoing tension between Ryder’s local management at South Windsor and Jeremy La- Russo, Parksite’s South Windsor manager, and that this tension adversely affected the operation. Parksite’s and Ryder’s witnesses also confirmed that the negative inter- 4 No exceptions were filed to the judge’s findings that: (1) Parksite hired a representative complement of the terminal’s workforce on Janu- ary 1 and 2, 2008; (2) a majority of the employees Parksite hired at that time were former members of the unit, (3) the unit continued to operate essentially unchanged, (4) Parksite was consequently obligated as a matter of law to recognize and bargain with the Union; (5) Parksite unilaterally and unlawfully changed the unit’s terms and conditions of employment; and (6) the remedial order should include restoration of the unit’s presuccessorship terms of employment for the period preced- ing the date on which the parties would have negotiated a new agree- ment or reached impasse. Parksite excepts only with respect to the judge’s finding that it engaged in discriminatory hiring, and the appro- priate remedy for that misconduct. The General Counsel, in his limited exceptions, seeks compound in- terest computed on a quarterly basis for remedial monetary awards. We are not prepared at this time to deviate from our current practice of assessing simple interest. See, e.g., Mays Printing, 354 NLRB No. 23, slip op. at 2 fn. 4 (2009). 5 The judge found that Ogren’s cursory testimony that Don Alamo, Parksite’s interviewer, raised the subject of the union with him was not sufficiently credible to establish that a violation occurred. With respect to Vasquez’s interview, it was Vasquez who first mentioned the Union, and Alamo responded by asking how Vasquez thought that bringing in the Union would solve the problem of the “fighting” between Ryder’s and Parksite’s local management. In this setting, Alamo’s question did not have a reasonable tendency to coerce within the meaning of Sec. 7. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 action between LaRusso and Ryder resulted in the fre- quent turnover of Ryder’s South Windsor management personnel, further disrupting performance. In March 2006, the Union began an organizing cam- paign for the Ryder drivers and warehouse workers at the South Windsor facility. Upon learning from Ryder that the Union had filed an election petition, Parksite’s corpo- rate management expressed to Ryder its strong opposi- tion to the prospective unionization of the terminal. Ry- der’s group director for operations updated Parksite’s management on developments in the union campaign by teleconference on a regular basis. In addition, James Coulter, Parksite’s logistics manager (who was later to make all of the hiring decisions at issue here), had ongo- ing telephone conversations with LaRusso about Ryder’s employees and other terminal issues at South Windsor. A Board election, held on June 8, 2006, resulted in a 13–13 tie. Based on the Union’s objections, the result was set aside, and a second election was held on April 5, 2007.6 As before, Parksite’s corporate management ob- tained periodic updates from Ryder on the progress of the campaign before the second election, and Coulter continued to receive updates directly from LaRusso. This time the Union won by a vote of 19–4, and the Un- ion was certified as the employees’ collective-bargaining representative. On September 24, following 4 months of negotiations—on which Ryder also kept Parksite in- formed—Ryder and the Union signed a collective- bargaining agreement. At least five of the alleged discriminates—Doug Davis, Benny Ingenito, Brian Barber, Ivan Vasquez, and Evernard “Robbie” Roberts—played public and promi- nent roles on behalf of the Union during the two election campaigns, the Board representation proceedings, and/or the subsequent bargaining with Ryder. Davis, Vasquez, and Roberts became, respectively, the Union’s driver steward, warehouse steward, and alternate steward. All of the discriminatees, as Ryder employees, had publicly demonstrated their union support by wearing union clothing or pins, or by placing union decals on their ve- hicles. Parksite concedes that LaRusso was aware of their union activities. In the meantime, over the period 2005–2007, Park- site’s management had reviewed Ryder’s performance and, on September 26, 2007, it decided that it would be more cost effective to bring the operation of its eight eastern facilities back in-house. Parksite’s management witnesses testified, without contradiction, that at that point in time the delivery error rate at South Windsor 6 All subsequent dates are in 2007 unless otherwise indicated. was to some extent higher than at the other terminals.7 In addition, shortly before Parksite made its decision to resume direct management of the terminals, Ryder’s cor- porate management informed Coulter that Ryder could not properly operate the South Windsor facility because of the “high level of frustration” between Ryder’s local management and LaRusso.8 On November 1, Parksite informed the Union of its in- tention to terminate Ryder’s management contract and re-staff the terminal operations in-house, effective Janu- ary 1, 2008. On November 3, at a terminal meeting, Ry- der’s South Windsor employees were told to submit ap- plications for hiring at Parksite. Parksite also accepted applications at all eight facilities from non-Ryder appli- cants and placed recruiting advertisements in the local media to attract such applicants. Only at South Windsor, however, did Parksite’s ads offer a $1000 signing bonus to all successful non-Ryder applicants. No such offers were made to the Ryder applicants at that terminal, or to any applicants at the other terminals.9 Parksite’s hiring process required all Ryder applicants, and those non-Ryder applicants who passed an initial telephone screen, to have a one-on-one interview. To conduct these interviews, Parksite contracted with out- side professionals, including Don Alamo, who did the interviews at South Windsor. He prepared a summary in which he rated the candidates in six different categories and gave each candidate a cumulative score. Alamo also took interview notes which he typed up and turned over to Parksite. Coulter made all of Parksite’s final hiring decisions at South Windsor, although he was not present at any of Alamo’s interviews. Coulter confirmed at trial that he had no knowledge about any of the non-Ryder applicants at South Windsor apart from what he learned from Alamo’s written evaluation materials, except for three applicants with whom he had worked before he joined Parksite in 2005. Coulter never discussed Alamo’s in- terviews or recommendations with Alamo. With respect to evaluating the Ryder applicants at South Windsor, Coulter admittedly relied primarily on LaRusso, Parksite’s South Windsor manager. Coulter testified at trial that LaRusso advised him not to hire 9 of 7 Steve Schmidt, Parksite’s vice president of logistics and Coulter’s superior, conceded at trial that these delivery errors could have resulted from management or administrative mistakes, as well as from mistakes by drivers or warehousemen. 8 As the judge observed, the evidence indicates that LaRusso “tended to interfere perhaps too much in the way that Ryder wanted to manage deliveries and this generated conflict which flowed down to the em- ployees.” 9 Parksite “rescinded” the bonus offer at some point after advertising it; no bonus payments were actually made. PARKSITE GROUP 3 the 10 alleged discriminatees, in each case—according to Coulter—for reasons of poor work performance and/or negative personality. In his testimony, Coulter specified these reasons for each individual.10 However, LaRusso, who was still employed by Parksite at the time of the hearing,11 was not called as a witness to confirm Coul- ter’s testimony or the reasons he had given Coulter in making his recommendations. On December 11, 2007, Parksite extended its initial job offers at all eight terminals. At South Windsor, Park- site offered jobs to 15 of the 16 non-Ryder applicants, but only to 14 of the 26 Ryder employees. Of the 11 non-Ryder applicants who accepted Park- site’s job offers at South Windsor, each received a lower score in Alamo’s interview than two or more of the al- leged discriminatees. Coulter also made offers to at least six non-Ryder applicants whom Alamo specifically rec- ommended against hiring. Moreover, of the 14 Ryder applicants who received of- fers and were hired at South Windsor, 3 had expressed antiunion views during their interviews with Alamo, and 2 others had served as company observers at the first and second Board elections, respectively. At least two others had earlier refused to sign union cards. By contrast, as stated above, all 10 alleged discriminatees who were not extended offers at South Windsor were active union sup- porters. As the judge also observed, Parksite made offers to a much larger proportion of non-Ryder applicants at South Windsor than it did at any of its other terminals. In fact, at each of the other seven terminals, significantly more Ryder applicants were offered jobs than non-Ryder ap- plicants. Moreover, at six of the other seven terminals no non-Ryder applicant received a job offer, and only one received an offer at the seventh. Correspondingly, at six of the other seven terminals, at least three out of four of the Ryder applicants were offered employment and hired.12 At South Windsor, only 11 of the non-Ryder appli- cants and all 14 of the Ryder employees who received offers accepted them. Because so many non-Ryder ap- plicants turned down Parksite’s employment offers, a 10 Coulter had earlier stated in his pretrial affidavit that he could not recall why he had not hired seven of the alleged discriminatees. He testified that he had not talked to LaRusso to refresh his memory before giving his pretrial affidavit, but that he had done so before the trial. 11 LaRusso was passed over for designation as terminal manager when Parksite resumed direct operation of the facility, due to his nega- tive interaction with other management staff. 12 At the seventh terminal, Tampa, a lower proportion of Ryder ap- plicants was hired than elsewhere (except at South Windsor), but solely because the total complement at that terminal was significantly re- duced. majority of those hired, 14 out of 25,13 turned out to be former Ryder employees. By letters dated December 19, 2007, and January 18, 2008, the Union requested recognition and bargaining with Parksite. By letter dated January 22, 2008, the Re- spondent refused to recognize the Union, claiming that it was still interviewing and hiring drivers and warehouse- men at South Windsor, and that a majority of the unit’s employees at that time were not from Ryder.14 The Ryder employees hired at South Windsor received the same wage rates as before, but the terms of their health and retirement benefits were changed from their union contract plans to Parksite’s corporate-wide plans. They also received lower starting wage rates. II. THE JUDGE’S FINDINGS The judge found that Parksite acted with the intention of hiring a unit with less than a majority of former Ryder employees at South Windsor, thereby avoiding an obliga- tion to recognize the Union, and freeing it to make uni- lateral changes in the unit’s terms of employment. He also found that Parksite knew of the protected activities of the alleged discriminatees. This finding was based in part on Parksite’s having undisputedly received ongoing reports from Ryder concerning the two Board elections and its subsequent contract negotiations. The finding of knowledge was also based on Coulter’s having admit- tedly relied on LaRusso—who as local manager had been “constantly at the facility”—for updates on the union activity at South Windsor since 2006, and for hiring rec- ommendations with respect to the Ryder applicants in December 2007. The judge further found that LaRusso’s knowledge of the discriminatees’ individual union activi- ties was also imputable to Coulter based on Coulter’s position as LaRusso’s superior. The judge discredited Coulter’s stated reasons for not hiring the discriminatees and his denial of knowledge of their union activities. In this connection, in addition to other evidence, he drew an adverse inference from Park- 13 These employees started work at South Windsor on January 1 and 2, 2008, when Parksite formally took over management of the terminal. The judge’s finding that 25 employees started work at that time is con- sistent with Parksite’s internal records, and there is no dispute that 14 of those employees came from the Ryder unit. Accordingly, Parksite hired 11 outside applicants, not 10 as implied by the judge. The error is inconsequential. 14 Parksite’s letter, written by its counsel, stated: “Currently, [Park- site] has 18 employees at that location [South Windsor]. Twelve are former Ryder employees and members of [the Union] and fifteen are not.” In fact, Parksite’s records confirm that on the date Parksite’s letter was sent, there were 13 former Ryder employees and 10 non- Ryder employees at South Windsor—i.e., former Ryder employees were still a majority. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 site’s failure to call LaRusso to confirm Coulter’s testi- mony on these critical issues. III. ANALYSIS While a successor employer is not obligated to hire the predecessor’s employees, it may not discriminate against those employees on the basis of antiunion animus. How- ard Johnson Co. v. Detroit Executive Board, Hotel & Restaurant Employees, 417 U.S. 249, 262 fn. 8 (1974). In a refusal-to-hire case involving a successorship, the applicable legal standards are prescribed in Wright Line 251 NLRB 1083 (1980), as approved in NLRB v. Trans- portation Management Corp., 462 U.S. 393 (1983). See Planned Building Services, 347 NLRB 670, 673–674 (2006). Wright Line requires the General Counsel to make an initial showing sufficient to support an inference that protected or union activity was a motivating factor in the decision to take an adverse action against employ- ees.15 In a successorship context, however, the General Counsel is not necessarily required to show that the em- ployer knew of the alleged discriminatees’ individual union activities and was motivated by animus against those particular activities. Lemay Caring Center, 280 NLRB 60, 69 (1986), affd. mem. sub nom. Dasal Caring Centers v. NLRB, 815 F.2d 711 (8th Cir. 1987) . It is sufficient if the General Counsel shows that the succes- sor was motivated by an intent to avoid its obligation to bargain with the predecessor’s union16 and refused to hire applicants whom it knew were members of the for- mer bargaining unit with that purpose.17 Factors relevant 15 The elements commonly required to support the General Coun- sel’s initial showing are union or protected concerted activity by the employee, employer knowledge of that activity, and union animus on the part of the employer. See, e.g., Consolidated Bus Transit. Inc., 350 NLRB 1064, 1065 (2007); Desert Springs Hospital Medical Center, 352 NLRB 112 (2008). Member Schaumber notes that the Board and the circuit courts of appeal have variously described the evidentiary elements of the General Counsel's initial burden of proof under Wright Line, sometimes adding as an independent fourth element the necessity for there to be a causal nexus between the union animus and the ad- verse employment action. See, e.g., American Gardens Management Co., 338 NLRB 644, 645 (2002) As stated in Shearer's Foods, 340 NLRB 1093, 1094 fn. 4 (2003), because Wright Line is a causation standard, Member Schaumber agrees with this addition to the formula- tion. 16 A successor is obligated to recognize the union that represented its predecessor’s employees where the operation continues substantially unchanged and a majority of the new employees are former members of the represented unit. Those issues are undisputed here. See fn. 4, su- pra. Burns Intern. Security Services v. NLRB, 406 U.S. 272, 278–281 (1972). 17 E.g., U.S. Marine Corp. v. NLRB, 944 F.2d 1305, 1315–1316 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992); Planned Building Ser- vices, supra, 347 NLRB at 673; Daufuskie Island Club & Resort, 328 NLRB 415, 421–422 (1999), enfd. 221 F.3d 196 (D.C. Cir. 2000) (table); New Breed Leasing Corp., 317 NLRB 1011, 1011 fn.3, to this showing include “substantial evidence of union animus; lack of a convincing rationale for refusal to hire the predecessor's employees; inconsistent hiring practices or overt acts or conduct evidencing a discriminatory mo- tive; and evidence supporting a reasonable inference that the new owner conducted its staffing in a manner pre- cluding the predecessor's employees from being hired as a majority of the new owner's overall work force to avoid the Board's successorship doctrine.” Planned Building Services, 347 NLRB at 673, quoting U. S. Marine Corp., 293 NLRB 669, 670 (1989), enfd. en banc 944 F.2d 1305 (7th Cir. 1991), cert. denied 503 U.S. 936 (1992). If the General Counsel makes such a showing, the bur- den passes to the successor to show that it would not have hired the alleged discriminatees even if they had not been former unit members. Planned Building Services, supra at 674. We agree with the judge that the General Counsel made a sufficient showing to support an inference that Parksite acted with the intent of hiring fewer former Ry- der employees than would constitute a majority of the new unit, in order to avoid an obligation to recognize and bargain with the Union. There is no dispute that, if all of the applicants who received Parksite’s job offers had accepted, the terminal would have re-opened with 15 non-Ryder employees and 14 former Ryder employees— a non-Ryder majority that would have enabled Parksite to avoid a bargaining obligation. There is also no dispute that Parksite knew that the 10 alleged discriminatees were former Ryder employees at South Windsor.18 1023 (1995), enfd. 111 F.3d 1460 (9th Cir. 1997), cert. denied 522 U.S. 948 (1997). 18 Although the General Counsel was not obligated to prove that Coulter had knowledge of the discriminatees’ individual union activi- ties, in Chairman Liebman’s view the judge was correct in imputing LaRusso’s knowledge of those activities to Coulter. A supervisor’s knowledge of protected activity can be imputed to upper management where the employer does not establish a credible evidentiary basis for rejecting such imputation. E.g., State Plaza Hotel, 347 NLRB 755, 756 (2006); Albertson’s, Inc., 344 NLRB 1172, 1185 (2005); Holsum De Puerto Rico, Inc., 344 NLRB 694, 714 fn.36 (2005), enfd. 456 F.3d 265 (1st Cir. 2006); Midnight Rose Hotel & Casino, 343 NLRB 1003, 1005 (2004), affd. 198 Fed. Appx. 752 (10th Cir. 2006). In the cases cited by Parksite on this issue, either knowledge was found without the need for imputing it, or there was a credible eviden- tiary basis for not imputing knowledge to upper management. See Poly-America, Inc. v. NLRB, 260 F.3d 465 (5th Cir. 2001) (sufficient evidence of communication to attribute knowledge in this case); Vulcan Basement Waterproofing v. NLRB, 219 F.3d 677 (7th Cir. 2000) (be- cause employer’s supervisors had all signed union cards, and judge’s refusal to credit supervisor’s denial that he informed management of two employees’ union activity was based only on his own speculation that supervisor disliked them for their abusive misconduct, knowledge could not be imputed); Jim Walter Resources v. NLRB, 177 F.3d 961 (11th Cir. 1999) (because Board specifically found that hiring officials did not know of applicant’s union background, and outside sources PARKSITE GROUP 5 Moreover, Parksite demonstrated its animus when it re- fused to bargain at the Union’s request even though the new unit complement had a majority of former Ryder employees, thereby violating Section 8(a)(5). The conclusion that Parksite sought to avoid hiring a unit with a majority of former Ryder employees is fur- ther supported by (1) the judge’s discrediting of Coul- ter’s proffered reasons, discussed infra, for his individual hiring decisions;19 (2) the $1000 signing bonus that Park- site conspicuously advertised only for non-Ryder appli- cants at South Windsor; (3) Coulter’s hiring of 11 non- Ryder applicants—including at least 6 whom Alamo considered unemployable—who each received lower scores from Alamo than at least 2 or more of the dis- criminatees; (4) Parksite’s strong preference for Ryder veterans at all of its other seven terminals; and (5) Park- site’s demonstrably false assertion to the Union that it had not yet hired a representative complement for the terminal. Planned Building Services, supra at 673. 20 We also agree with the judge that Parksite failed to carry its rebuttal burden of showing that it would have made the same hiring decisions even if the discriminatees had not been former unit members. First, the judge dis- credited Coulter’s testimony that he declined to hire 9 of the 10 discriminatees for lawful reasons purportedly conveyed to him by LaRusso.21 In this connection, we conclude that the judge did not abuse his discretion in drawing an adverse inference from LaRusso’s failure to testify. The fact that LaRusso could also have been sub- poenaed by the General Counsel, as Parksite suggests, is characterized him only as having a “negative attitude,” imputation of knowledge not justified). Member Schaumber finds that because in this successorship avoid- ance case, unlike Windsor Convalescent Center of North Long Beach, 351 NLRB 975, 986 fn. 48 (2007), in which the General Counsel is required to establish only the Respondent’s knowledge of the discrimi- natees’ Union representation at the predecessor employer, it is unneces- sary to rely on the judge’s finding that LaRusso’s knowledge of the discriminatees’ individual union activities should be imputed to Coul- ter. 19 Where an employer's proffered nondiscriminatory explanation is found to be false, unlawful motivation may be inferred even in the absence of direct evidence. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Smucker Co., 341 NLRB 35, 40 (2004), enfd. 130 Fed.Appx. 596 (3rd Cir. 2005); Fluor Daniel, Inc., 304 NLRB 970 (1991). 20 Parksite’s statement in its counsel’s letter of refusal to the Union that there were “18 employees at that location” but that “[t]welve are former Ryder employees and members of [the Union] and fifteen are not,” was both false and arithmetically impossible. 21 As the judge observed, the tenth alleged discriminatee, Andrew Burleigh, one of the three Ryder employees who initially contacted the Union, had admittedly been removed from servicing one customer as the result of an altercation. However, Jeff Ogren, another Ryder appli- cant who had not been an active union supporter, was hired by Coulter even though he had been disciplined several times for similar incidents. not determinative because the General Counsel was not obligated to rely on LaRusso’s testimony to prove his case. On the other hand, Coulter admittedly relied on LaRusso for evaluations of all the former Ryder appli- cants, and he even confirmed that he had improved his memory about the discriminatees’ qualifications by talk- ing to LaRusso before the trial. Moreover, the lawful- ness of Parksite’s actions depended entirely on Coulter’s motivation for his hiring decisions. It was Parksite’s choice to withhold LaRusso’s critically important testi- mony. Thus, under the circumstances presented, we find no abuse of discretion in the judge’s application of the adverse inference rule. In addition, while Coulter testified that the discrimina- tees were not hired as a group because of the higher- than-average error rate at South Windsor, the judge dis- credited Coulter in this respect as well. There is substan- tial evidence in the record—including admissions by Parksite—that the problems at the terminal resulted in large part from the ongoing conflict between Ryder’s management and LaRusso, rather than from unit em- ployee performance.22 For all of these reasons, we find that Parksite failed to rebut the General Counsel’s showing that Parksite’s re- fusal to hire the discriminatees was unlawfully moti- vated. Accordingly, we find that Parksite violated Sec- tion 8(a)(3) by refusing to hire the discriminatees.23 With respect to the remedy, Parksite, citing FES, 331 NLRB 9 (2000), supplemented 333 NLRB 66 (2001), enfd. 301 F.3d 83 (3d Cir. 2002), contends that, at worst, it unlawfully refused to consider the discriminatees rather than refused to hire them. On this ground, Parksite contends that the remedy should include only eligibility to apply for prospective hiring when openings occur at the terminal, not instatement and backpay. However, the judge found, and we agree, that Parksite failed to show that it would not have hired any of the ten rejected Ryder employees for legitimate reasons separate and apart from its unlawful motivation to avoid a bargaining obligation. Hence, the violation we remedy is the unlawful refusal to hire the discriminatees, and the appropriate remedy in such circumstances includes reinstatement and backpay. See Planned Building Services, supra at 672 fn. 9, and 674–676. 22 See fn. 19. 23 Parksite emphasizes that it recognized and continued to bargain with the union that represented employees at its New Jersey facility. This, however, does not negate the evidence that it acted with unlawful animus with respect to its hiring at a terminal in another state. In finding that Parksite’s refusal to hire the discriminatees was moti- vated by an intent to avoid a bargaining obligation with the Union, we find it unnecessary to rely on Parksite’s May 2006 letter opposing the Union sent to employees at the South Windsor terminal. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, The Parksite Group, South Windsor, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the recom- mended Order. Dated, Washington, D.C. September 30, 2009 Wilma B. Liebman, Chairman Peter C. Schaumber, Member (SEAL) NATIONAL LABOR RELATIONS BOARD Jennifer Dease, Esq., for the General Counsel. Linda M. Doyle, Esq., for the Respondent. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. I heard this case in Hartford, Connecticut, on August 19–22 and on Sep- tember 15, 2008. The charge and amended charge were filed on January 28 and March 19, 2008. The complaint was issued on May 30, 2008, and alleges as follows: 1. That since on or about November 1, 2007, the Respon- dent, The Parksite Group, has refused to hire certain individuals employed by Ryder Integrated Logistics Inc., in order to pre- vent it from becoming a “successor” employer. These were Brian Barber, Michael Beaulieu, Andrew Burleigh, Doug Davis, Benny Ingenito, Joseph Moyles, Evernard “Robbie” Roberts, Estaquio “Jay” Rodriguez, Jack Teske, and Ivan Vasquez. 2. That in or about December 2007 the Respondent by Don Alamo interrogated employees about their union membership and activities. 3. That on or about January 1, 2008, the Respondent as- sumed the warehouse and distribution functions that had previ- ously been performed by the employees of Ryder who were represented by Local 671. 4. That by virtue of the Respondent’s discriminatory refusal to hire former Ryder employees, and because the complement of employees at the facility, in the absence of discrimination, would have consisted of a majority of those employees, the Respondent is a successor employer having an obligation to recognize and bargain with Local 671. 5. That since on or about January 1, 2008, the Respondent has failed and refused to bargain with Local 671. 6. That since January 1, 2008, the Respondent has unilater- ally and without prior notice to the Union, established the rates of pay, benefits, hours, and other terms and conditions of em- ployment for the employees in the bargaining unit. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed, I make the following I. JURISDICTION The Respondent admits and I find that it is an employer en- gaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also is conceded 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 successorship issue The basic case defining successorship is Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). In that case, the Supreme Court held that a purchasing employer is required to recognize and bargain with a union representing the predeces- sor’s employees when there is a "substantial continuity" of operations after the transaction and if a majority of the new employer’s work force, in an appropriate unit, consists of the predecessor's employees when the new employer has reached a "substantial and representative complement." Successorship will not be found in the event that the new employer substantially changes the nature of the business and thereby disrupts the continuity of the enterprise. CitiSteel USA Inc., v. NLRB, 53 F.3d 350 (D.C. Cir. 1995). In School Bus Services, Inc., 312 NLRB 1 (1993), the Board held that with respect to continuity, the questions are (1) whether the business of both employers was essentially the same; (2) whether the employees of the new company are doing the same jobs in the same working conditions, under the same supervisors; and (3) whether the new entity has the same production process, pro- duces the same products, and basically has the same customers. On the issue of continuity, see also Sierra Realty Corp. 317 NLRB 832, 836 (1995); Systems Management, 292 NLRB 1075 (1989) enf’d in part 901 F.2d 279 (3d Cir. 1990); Steward Granite Enterprises, 255 NLRB 569, 573 (1991); and Spruce- Up Corp., 209 NLRB 194 (1974). The Respondent is engaged in the wholesaling of building materials. It is based in Batavia, Illinois, and currently operates eight facilities in the Eastern part of the United States. At these facilities, the Company employs a sales force, clerical employ- ees, warehousemen, and drivers. The facility involved in this case is located at South Windsor Connecticut and is one of the larger of these facilities. The management structure of the Company is as follows. The CEO is George Patee. The president is Richard C. Heitz- man. Dick Hill is the Employer’s director of human resources. Steve Schmidt is the vice president of logistics. James Coulter is the director of logistics and he works for Schmidt. Each facility has a sales manager and an operations manager. The Company also employees regional sales managers and the per- son in charge of the area in which South Windsor is located is Kevin Crotty. For most of its history, the Respondent has directly em- ployed warehouse employees and drivers. However, in 2005 it decided to outsource these functions. To that end, it contracted PARKSITE GROUP 7 this work to Ryder Integrated Logistics and that company took over most of the employees who had previously been employed by Parksite, including the employees at a facility in New Jer- sey, where the employees were unionized. With respect to the New Jersey facility, it is noted that Parksite had taken over that facility from another company having a contractual relationship with a Teamster union and that it recognized that union when it hired a majority of the predecessor’s employees at the facility. When Ryder took over the New Jersey operation, it also recog- nized the Teamsters.1 In March 2006, Local 671 began an organizing campaign at the South Windsor facility. Employee Doug Davis testified that he was the person who contacted the Union and other evi- dence shows that he was the most active union supporter among the Ryder employees. On April 27, 2006, Local 671 filed a petition for an election. On May 5, 2006, the parties executed a Stipulated Election Agreement whereby an election was held on June 8, 2006. (Doug Davis was the Union’s observer at this election). In that election, there were 13 votes cast for the Union and 13 votes cast against union representation. As a consequence of objec- tions filed by the Union, there was a hearing and some of the employees testified for the Union in that proceeding including Davis, Bernardino Ingenito, and Brian Barber. On August 11, 2006, a report on objections was issued sustaining some of the Union’s objections. The Regional Director issued a direction of a second election on February 28, 2007, and another election was held on April 5, 2007. (At this election, Ivan Vasquez, a warehouse employee, was the Union’s observer). This time the union won by a vote of 19 to 4. The Union was certified on April 13, 2007, and on September 24, 2007, a collective- bargaining agreement was signed by Ryder. The General Counsel points to a letter written by Parksite’s president Heitzman on May 30, 2006, that demonstrates its active involvement in the first election. She further posits that this letter demonstrates an antiunion preference by Parksite and a willingness to take adverse actions in the event that Local 671 was elected. This letter, which was distributed by Ryder to the employees, stated: I understand that the Ryder associates in our South Windsor, CT location are evaluating representation by a union. I want to notify you that I am greatly troubled by that prospect. . . . I firmly believe that a union environment is incompatible with our operating culture and our competitive advantage. Intro- ducing a third party will undoubtedly result in less direct communication, less operating flexibility, less teamwork and much less focus on the customer. That result is unacceptable to me, but more importantly, it will be unacceptable to our customers. . . . I want you to know that if the Ryder associates choose union representation, we will need to take steps to ensure that we do 1 This transaction demonstrates that Parksite had prior experience in dealing with unions and in dealing with “successorship” situations. not lose the competitive advantage we have worked so hard to gain over the years. We will explore all alternatives. The Respondent’s witnesses testified that this letter was so- licited by Ryder and essentially drafted by Ryder so that it could be used as a campaign tool in the first election. The General Counsel called Ryder officials who disputed this asser- tion. In either case, whether solicited or not by Ryder, the fact is that the letter that was signed by Heitzman speaks for itself and its sentiments were either made or adopted by him. Either this is what he believed at the time that the letter was composed or he was willing to adopt someone else’s views for the purpose of defeating the Union in the election. After the second election was held and the Union was certi- fied on April 13, 2007, Ryder employees Doug Davis and Ivan Vasquez participated in the bargaining as members of the Un- ion’s negotiating committee. They also were selected as the union shop stewards. Evanard “Robbie” Roberts was elected to be the alternative shop steward. It is noted that during the negotiations, Ryder kept Parksite informed of developments. There is, however, no evidence that Parksite sought to influence Ryder in relation to the negotia- tions. Parksite hired James Coulter in 2005 as its logistics manager. He testified that some time after he started, he came to the con- clusion that contracting out the work to Ryder was not very effective, particularly as the relationship between Parksite and Ryder was based on a cost plus contract and there was little inducement for Ryder to more efficiently run these operations. He testified that he brought his opinions to other management and recommended that Parksite bring the warehouse and driv- ing functions at every facility, back in-house. According to Coulter’s pretrial affidavit, it was in August 2007 that the Company “began engaging in a business case analysis about whether or not to continue to contract with Ry- der for the distribution function of our business or whether to bring that function back in house.” He states that on September 26, 2007, the decision was made to bring back all of the driving and warehousing functions at all eight facilities. To state the obvious, Coulter’s pretrial affidavit indicates that Parksite began the formal process of studying the ramifica- tions of bringing back the delivery and warehousing functions at the same time that negotiations were occurring between Ry- der and Local 671. It also shows that Parksite made its decision 2 days after a collective-bargaining agreement was reached. This is not to say that there were no legitimate business rea- sons for terminating the contract with Ryder. The decision affected all eight of the Company’s facilities and not just South Windsor. The Respondent’s witnesses testified that it was their belief that bringing the work in-house could reduce the number of managers and therefore reduce costs. The decision to bring back the work involved more than 200 employees. And in relation to the change, the Respondent de- cided to have both Ryder employees and outside people apply for these jobs. That is, it was decided that the former Ryder employees would have to compete with outside applicants. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 On November 1, 2007, the Union was notified by Ryder that its contract with Parksite would be terminated as of January 1, 2008. On November 3, 2007, Ryder representatives told the em- ployees at South Windsor that Parksite was cancelling the con- tract and would be taking over the distribution functions at all of its facilities. The employees were told that interviews would be held at the South Windsor facility between December 3 through 6 and that offers would be made by December 10, 2007. Handouts were given to the employees and General Counsel Exhibit 7 is a document that was prepared by Parksite in the form of questions and answers. It states: Q. If I am a union employee in New Brunswick or South Windsor, what will be my status with Parksite as of January 1, 2008? A. As with other employees in the warehouses, the yard and drivers we will be seeking to hire as many of Ryder/Kencos’ current employees as possible. Parksite will assume almost all the union contract with Ryder/Kenco. As with all associ- ates, we will hire employees based on an interview; the pass- ing of a drug test; a background check; for drivers, a Motor Vehicle Report; and the signing of a commitment to our own- ership behaviors in the work place. Parksite will explore pay- ing for the Union’s Health and Welfare Benefit Plan versus enrollment In the Parksite Plan. We will enroll new associ- ates in the Parksite 401k. The Medial Plan and the 401K will no longer be available from Ryder/Kenco. Other components of the Union contract will be honored as they stand today. Q. If I work for Ryder/Kenco, will I be doing the same job that I am doing today? A. The same work needs to be accomplished to complete warehousing, loading and delivery of inventory to customers. However, this work will be done under Parksite direction and supervision. This means you will be doing similar work. However, some tasks may be combined, managed with dif- ferent systems or altered to increase efficiency and response to customer needs. Q. Will I have benefits with Parksite? A. In his trips to each location, Dick Hill will meet with af- fected staff and present the details of the Parksite benefits plan to associates. The benefits package of Ryder/Kenco is sub- stantially comparable to Parksite’s benefits offering. For un- ion associates in New Brunswick and South Windsor, we will explore the cost of the Union medical plan. Parksite will ei- ther contribute to the cost of the union plan or enroll new as- sociates in Parksite’s plan. In addition, in line with the current contract, associates will be offered the Parksite 401K retire- ment plan. As noted above, Parksite decided to open the hiring process at all facilities to both the former Ryder employees who had worked at each facility and to outside applicants. To this end, newspapers ads were placed. Also, an online advertiser, Career Builders was used. The General Counsel points to the fact that in some ads for the South Windsor facility, a $1000 signing bonus was offered only to successful non-Ryder applicants. She persuasively asserts that this demonstrates Parksite’s inten- tion to induce more non-Ryder applicants to seek and accept employment at the South Windsor facility.2 The hiring process at all of the facilities involved an initial screening of non-Ryder applicants by Susan Davey who re- viewed resumes and had phone interviews with those people. If an applicant passed through her, a second interview was set up with two interviewers who were hired for this purpose, one of whom was Don Alamo. According to the testimony of Richard Hill, the director of human resources, there were about 2000 applications received from non-Ryder employees of which only 46 received inter- views after the initial screening process. A large percentage of the outside applicants were interviewed for the South Windsor facility. Mr. Alamo conducted interviews at the South Windsor facil- ity. This consisted of interviews with the former Ryder em- ployees who worked at South Windsor and also with outside applicants who applied for that location. He testified that he utilized a form containing a list of questions that had been pre- pared by Parksite, albeit he did not ask all of the questions on the form. Alamo also testified that he prepared a summary by which he rated the interviewees in six different categories. Each category was rated from 1-6 with 1 being the best score. Also, a total cumulative score was given with the lower the better. The evidence shows that during some of the interviews, there was discussion about the Union between Alamo and some of the Ryder employees. Ivan Vasquez, a warehouse leadman, testified that towards the end of the interview Alamo asked why everybody has such a problem with management. Vasquez states that he responded that there was a lack of communication between Parksite and Ryder and that this had caused problems with the employees, which was why the employees “entered” the Union. Vasquez testified that when Alamo then asked why the employees brought in the Union, he repeated that Parksite and Ryder were always fighting and that the employees needed someone else to protect them. Vasquez was one of the Ryder employees who was not offered a job by Parksite. Jeff Ogren, a driver, testified that during his interview, he was asked if he was a member of the Union and that he re- sponded that “we all were.” He was offered a job and started working for Parksite on January 1, 2008. Alamo testified that there were several employees who brought up the Union, but that these comments were volun- teered by them and not made in response to any questions asked by him and apart from the testimony of Jeff Ogren, there was no other person who testified that Alamo initiated the question- ing of employees about the Union. Therefore, in the absence of any other corroboration, I am going to dismiss the interrogation allegation of the complaint. In the course of the interviewing process, Alamo made notes which he then typed up and turned over to the Company. 2 It is unclear as to whether any of the non-Ryder job applicants at South Windsor actually received the signing bonus. PARKSITE GROUP 9 Alamo’s notes regarding his interview with Erich Buelig, who was hired by Parksite and started working on January 1, 2008, contains the following: Erich made a point of voluntarily saying he was not a union supporter and went out his way to downgrade the union effort and said he walked out of one of the meetings. He said there were and are several drivers who are big complainers and were probably looking to bring in the union. BUT, he be- lieves that PPW should have listened to the complaints to head off the problem—he doesn’t think they did! He believes that PPW should start off having a written Mis- sion Statement and making sure everyone knows what they stand for and solve the “attitudinal” problem which exists. Erich is well spoken, intelligent and appears to be firmly in support of PPW management if he is to be believed (and he honestly seems to be forthcoming). Alamo’s notes regarding John Saya, who was hired and started working on January 1, 2008, stated: John is well spoken and obviously knowledgeable about his job after 25 yrs. He said he was “shocked” and felt “let down” when he heard about the initial outsourcing. Now he believes it will be very positive to have Ryder gone even though he believes that Ryder does a good job with what it was handed. He said he want to make sure this doesn’t hap- pen again. He was very negative about the need for unioniza- tion. He also said he very, very much wants to keep his job because he likes the Parksite people, the location and his cus- tomers—and will do anything to keep his job. Alamo’s notes regarding Scott Rossi, who was hired and started working on January 1, 2008, states: Very personable: excellent knowledge and attitude about most co-workers and company, but not that happy about Ryder. Voluntarily said he stayed “under the radar with the whole un- ion thing.” At South Windsor there were 42 people who were inter- viewed for driver and warehouse positions. Of these, 26 were former Ryder employees and 16 were non-Ryder applicants. On December 11, 2007, the Company made its initial job of- fers. The evidence shows that at South Windsor, 15 out of the 16 non-Ryder applicants were offered jobs and that 14 out of the 26 Ryder applicants were offered jobs. Of the total jobs offered, five of the non-Ryder applicants did not accept the jobs. Of the people who started work on January 1 or 2, 2008, there were 25 employees who were hired, of whom 14 were former Ryder employees. By letter dated December 11, 2007, the former Ryder em- ployees who were offered employment at South Windsor were notified by Parksite that their wage rates would remain the same (as set forth in the Ryder/Local 671 contract), but that health insurance and 401(k) plans would be Parksite company wide plans and not union contract plans. The remaining people were hired at starting rates that for the most part were lower. The Company points out that at its New Brunswick, New Jersey facility, it recognized the Union that represented those employees because a majority of those hired were former Ryder employees who were represented by a union. There is no question but that the operation at South Windsor, as it existed under Ryder, was carried on by Parksite with sub- stantially no change. The functions of the unit were to ware- house the same types of building materials and to deliver those materials to the same customers. This was carried out in the same warehouse facility and was done with the same categories of workers. Indeed, Parksite rented the same trucks that Ryder had used for this process when it had performed these func- tions. The facts also show that Parksite hired three of the for- mer Ryder managers to do the same jobs that they had done when they were employed by Ryder. (Charles Oliver, William Richards, and Gary Scaramella). It is my conclusion that the work force that began working for Parksite at South Windsor on January 1 and 2, 2008, was a representative complement of employees. When the first elec- tion was held in June 2006, there were approximately 26 driv- ers and warehousemen. One year later (and after some decline in business due to the beginning of the downturn in the housing market), there were 23 drivers and warehousemen who voted in the second election held on April 7, 2007. For the year 2007, the average number of drivers and warehousemen employed at South Windsor was 27. For the period of time between Janu- ary 1 through July 2008 (just before the hearing in this case began), the Company’s records indicate that the average com- plement of South Windsor unit employees was 26. After making the job offers and by January 2, 2008, there were 25 drivers and warehousemen who were hired to work at the South Windsor facility. And although there were some people who left and were replaced during that first month, the number in the unit by the end of January 2008 was 26. By letters dated December 19, 2007, and January 18, 2008, the Union requested recognition and bargaining. By letter dated January 22, 2008, the Respondent declined to recognize the Union, claiming that it was continuing to interview and hire drivers and warehousemen for South Windsor.3 Whether or not the evidence will ultimately show that Park- site made an effort to jury rig the hiring procedure to produce a different result, the outcome of the hiring process here was that the former Ryder employees made up a majority of Parksite’s work force as of January 2, 2008, which is the effective date that it commenced operations. Because it is my conclusion that the work force as of January 2, 2008, constituted a substantial and representative complement of the new employer’s work force, I conclude that Parksite is a successor at its South Win- dsor facility with respect to the drivers and warehousemen. I therefore conclude that Parksite had an obligation to recognize and bargain with the Union and that by failing to do so, it vio- lated Section 8(a)(1) and (5) of the Act. b. The alleged refusal to hire The General Counsel contends that the 10 individuals listed as discriminatees in the complaint were not hired because of 3 The General Counsel points out that as of January 22, there were 23 bargaining unit employees on the payroll of whom, 13 were former Ryder employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 their “open and notorious” union activities. Alternatively, she alleges that Parksite set up its hiring process at South Windsor so that there would be a probability that a majority of those hired would not be former Ryder employees The Respondent denies that it refused to hire any individuals because of their union activities and denies that it engaged in a “plot” designed to result in the hiring of a minority of Ryder employees. It contends that the person responsible for making the hiring decision (Coulter), did not even know who among the former Ryder employees were either union members or what their union activities were. As a general rule where it is alleged that an employer has il- legally refused to hire employees because of their union mem- bership or activities, the legal test is the same as the one applied when it is alleged that an employee or employees have been illegally discharged or laid off. Planned Building Services, Inc., 347 NLRB 670 (2006). This test was enunciated in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), and was approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). Thus, when the General Counsel makes a prima facie showing that is sufficient to support an inference that protected or union activity was a motivating factor in the decision to dis- charge or take other adverse action against employees, the bur- den shifts to the Respondent to demonstrate that it would have taken the same action in the absence of the protected activity. In this case the General Counsel has two alternative but overlapping theories in support of the 8(a)(3) claim. In the first, the General Counsel contends that the 10 former Ryder employees who were denied employment were rejected because of their specific union membership or activities. In this regard, Parksite management was, at the very least, aware of which employees participated in collective bargaining between Ryder and the Union and who were elected to be the Union’s shop stewards. (Davis, Vasquez, and Roberts). The Respondent claims that Coulter was the only person who made the hiring decisions and that he personally had no knowl- edge of which employees were active union supporters. The first of these claims is demonstrably not correct. And the sec- ond is dubious at best. While it may be that Coulter made the final hiring decisions, he admittedly relied on the recommenda- tions of Jeffrey LaRusso. As a practical matter, LaRusso there- fore had as much or more to say, at least as to the former Ryder employees, regarding who would be hired. It was conceded by the Respondent that Jeffrey LaRusso knew the identities of the union stewards. Moreover, as La- Russo and Parksite’s sales manager were constantly at the facil- ity with the former Ryder employees, they had to have noticed that the chosen (for nonhire), wore union clothing and pins and displayed union decals on their vehicles. Further, as the evi- dence shows that Coulter relied on LaRusso’s recommenda- tions as to which former Ryder employees to hire or not hire, and as such recommendations could easily have been based on LaRusso’s “knowledge” of the employees’ union activities, his knowledge and intent is transferrable to Coulter. And in this regard, it is significant to me that the Respondent chose not to present the testimony of LaRusso who could have testified about his conversations with Coulter and why he made the recommendations that he did. Under the second theory, if I agree that the Respondent re- fused to hire former Ryder employees as a means to avoid a “successor” bargaining obligation, then it really makes no dif- ference as to whether Coulter or anyone else in the Respon- dent’s management had knowledge as to the union activities of each employee. All that the General Counsel would have to show is (a) that the Respondent knew that a union represented the former Ryder employees at South Windsor; (b) that Park- site’s management knew what the law was; and (c) that Park- site’s intent was to hire a work force in which the former Ryder employees would not constitute a majority. For that scenario to work, the way to accomplish that result would be to make sure that only a minority of the new work force consisted of the predecessor’s employees and to arrange the hiring process so that one did not get caught.4 The Respondent contends that although it used a uniform hir- ing procedure for all eight of its facilities, the outcome at South Windsor was different because of the circumstances at this location were different. It contends that the South Windsor operation was significantly worse in terms of delivery mistakes, a condition mainly attributable to the warehouse operation as opposed to the drivers. In this regard, the evidence does show that South Windsor, for a period of time before the transition, had a higher error rate than any of the other facilities. This was in fact acknowledged by employees who testified for the Gen- eral Counsel. On the other hand, the evidence indicates that a good deal of this problem resulted from the high turnover rate of Ryder management at this facility and the continuing dispu- tations between Ryder’s managers and Parksite’s local man- ager, Jeffrey LaRusso. In this regard, the evidence suggests that LaRusso tended to interfere perhaps too much in the way that Ryder wanted to manage deliveries and this generated con- flict which flowed down to the employees.5 (This conflict was mentioned by some of the Ryder employees at the interviews that were conducted by Alamo). So, what evidence has the General Counsel presented to sup- port her theory that the hiring process was rigged in an effort (that was inadvertently unsuccessful), to avoid an obligation to bargain? As described above, Parksite’s president, Richard C. Heitz- man, interjected himself into the first election, urging the Ryder employees to vote against unionization and hinting that if they did so, Parksite might have to “explore all alternatives.” To me this is a not too subtle statement that if the employees were to vote for Local 671, then Parksite might have to replace their employer and that they therefore could lose their jobs.6 The 4 As shown by the original recognition of the New Jersey facility, it seems to me that Parksite’s human resource people were knowledge- able about the law regarding “successorship.” 5 I note that LaRusso was rejected by Parksite to be the operations manager at South Windsor when the warehouse operation was brought back under its control. 6 Under current law and pursuant to Local No. 447 Plumbers (Mal- bath), 172 NLRB 128 (1968), a company cannot be held to violate Sec. 8(a)(3) when the employees of a subcontracting employer lose their jobs because the contract is canceled, even if the contract is canceled PARKSITE GROUP 11 Respondent, on the other hand, contends that this letter, even if representing Heitzman’s true position, was sent more than a year before the decision to bring the work in-house and well before any decisions were made as to which employees would be hired or not hired. From April 2006, Ryder sent monthly memoranda to Park- site. Each report has space for “Accomplishments,” “Major Projects,” “Opportunities” and “Concerns.” The report encom- passing South Windsor for April 1, 2006, states that one of Ryder’s major projects was “Union avoidance.” The report for May 2006 lists a major project as; “Union avoidance- Education.” The report dated June 2006 lists a major project as; “Healing wounds from Union campaign.” The reports for July, August, and September 2006 list a major project as; “Healing wounds from Union campaign. Improving morale.” While these reports were generated by Ryder and not written by Park- site, it is reasonable to assume that the items listed in the re- ports were matters of interest to Parksite. And the comments that union avoidance was a major project for Ryder in April and May 2006 is consistent with the letter signed by Heiztman that was distributed to Ryder’s employees. Also, the later reports concerning the necessity for “healing wounds from the Union campaign,” clearly must have indicated to Parksite’s manage- ment that the Union’s campaign had affected employee morale. In seeking non-Ryder applicants, Parksite advertised that a signing bonus of $1000 would be paid to any non-Ryder appli- cant who was hired. Such a bonus was not offered at any of the other seven locations and it is my opinion that the advertised bonus was offered as an inducement to enlarge the pool of pos- sible applicants for the South Windsor facility. Alamo, as part of his interviewing process, notified the Re- spondent’s human resources department, that three of the for- mer Ryder employees were opposed to the Union. (Erich Buelig, John Saya, and Scott Rossi). All three were offered employment. Let’s look at some more numbers. for anti-union considerations. See also Computer Associates Intl.., 324 NLRB 285 (1997). Curiously, Malbath did not involve an allegation of either Sec. 8(a)(1) or (3) of the Act. Instead it involved a situation where a union that had engaged in secondary boycott activity was charged with violations of Sec. 8(b)(1)(A) & (2) of the Act. It was alleged that by seeking to have one employer cease doing business with another, the Union was causing or attempting to cause an employer to discharge and discriminate against nonunion employees. A majority of the Board, with chairman McCullogh dissenting, rejected this argu- ment, holding that a general contractor and its subcontractors at a con- struction site are not joint employers and that an attempt to cause one to cease doing business with another is not the same as causing an em- ployer to discriminate against employees. This is distinguishable from the situation where employer A, while retaining its contractual rela- tionship with employer B, has been found to have violated 8(a)(3) with respect to employees not its own, when it urged or caused employer B to discharge specific individuals who were engaged in union activity. Holly Manor Nursing Home, 235 NLRB 426, 428 fn. 4 (1978), Central Transport, Inc, 244 NLRB 656, 658–659 (1979), and Georgia-Pacific Corp., 221 NLRB 982, 986 (1975). At Apex, North Carolina, 15 Ryder employees were inter- viewed and 12 were offered jobs. There also were 6 non-Ryder applicants who were interviewed and one was offered a job. At Louisville, Ohio, there were 15 Ryder employees who were interviewed and 13 who were hired. There were no non- Ryder applicants who were interviewed and none were hired. At Baltimore, Maryland, there were 20 Ryder employees who were interviewed and all were offered jobs. There were 11 non-Ryder applicants who were interviewed and none received offers of employment. At West Chicago/Bensenville, there were 22 Ryder employ- ees who were interviewed and 21 were offered jobs. There was one non-Ryder applicant interviewed and he was not offered a job. At North Brunswick, New Jersey, which was and remains a unionized facility, there were 24 Ryder employees who were interviewed, of which 18 were offered jobs. There were no non-Ryder applicants interviewed or offered jobs. As noted above, Parksite recognized the Union at this location. At Tampa, Florida, there were 42 Ryder employees who were interviewed and 27 were offered jobs. At this location there were 12 non-Ryder applicants who were interviewed but none were offered employment. (It seems that because of a severe downturn in housing construction, this necessitated a significant downsizing of this facility). At Syracuse, New York, there were 21 Ryder employees who were interviewed and 17 were offered jobs. No non-Ryder applicants were interviewed or offered employment. At South Windsor, all 26 of the Ryder employees were inter- viewed and 14 were offered jobs. Of the 12 who were not of- fered jobs, 10 were union supporters including the two shop stewards, Davis and Vasquez, plus the alternative shop steward, Roberts. The other seven had publicly demonstrated their un- ion support by wearing union clothing or pins, or by utilizing union decals on their vehicles. Of the 14 former Ryder employees who were offered jobs at South Windsor, the odds are that most voted for the Union at the April 5 election because the vote was 19 to 4. But included in the group that were hired were three individuals who ex- pressed antiunion opinions during the interviewing process. Also hired were Richard Barrows who was a company observer at the first election and Jon Ruggles who was a company ob- server at the second election. A coincidence: Perhaps. At South Windsor there were 16 non-Ryder people who were interviewed by Alamo. Of this group, 15 were offered jobs. (One more than the number of former Ryder employees who were offered jobs). Within the non-Ryder group, there were numerous applicants who were hired but who scored below some of the former Ryder employees who were not offered jobs. Even worse, there were individuals within the non-Ryder pool who were hired either against Alamo’s recommendations or despite his very lukewarm recommendations. For example, Alamo made the following notation in the interview form for Shelton Eason; “I would not consider Shelton for hire unless you really needed to consider a replacement.” Alamo made this note for Earl Brown; “I would not recommend Earl.” As to DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 12 Chaz Harris, Alamo wrote; “Chaz was a decent person and had some job stability but I wouldn’t consider him a top tier candi- date. . . .” Regarding Cedric Avery, Alamo had this to say; “Not very communicative. I would not consider.” As to Cedric Lanier, Alamo wrote; “Cedric says he’s dependable, easy to train and reliable. He was a very nice guy, but I would not consider hiring.” Regarding Robert Zigmond, Alamo wrote; “Robert would not stop talking! I honestly couldn’t get a word in edgewise. Nevertheless, he is definitely not a fit at PPW.”7 In my opinion, the evidence in this case demonstrates that Parksite set up a hiring process that as applied to the South Windsor facility, was intended to produce the result that the Respondent could avoid an obligation to bargain with the Un- ion by making sure that it did not hire a majority of the prede- cessor’s employees and therefore not being construed as a “successor” as that term is used in labor law. The details of that procedure have been highlighted above, and but for the fact that five of the non-Ryder applicants rejected job offers, the Re- spondent would have wound up on January 2, 2008, with a work force consisting of 14 former Ryder employees and 15 non-Ryder employees. This is a result that would be good enough to avoid majority representation by the predecessor’s employees and perhaps good enough to persuade any outside reviewing body that the hiring process was neutral and non- discriminatory. The Respondent has not convinced me that it would have re- fused to hire any of the 10 rejected Ryder employees for legiti- mate reasons separate and apart from its motivation to make sure that the Ryder employees would not constitute a majority of the new work force. For example, Coulter testified that based on LaRusso’s rec- ommendation, he did not offer a job to Davis (a shop steward) because Davis was “abrasive” to his co-workers and did not go above the minimum in terms of work. He testified that Vasquez (the other shop steward), was not hired because La- Russo described him as “insubordinate and disrespectful.” Apart from the fact that these types of phrases have often been applied to people who actively support unions, the Respondent did not call LaRusso to testify in this proceeding and therefore we cannot say what LaRusso’s opinions were based upon. In fact most of the former Ryder employees who were not offered jobs were allegedly rejected by Coulter based solely on LaRusso’s opinions of them. Thus, Coulter testified that La- Russo told him that Ingento was not a hard worker and was lazy. That LaRusso said that Testke had a bad attitude and was not productive. That LaRusso opined that Moyles and Barber had absentee problems. That LaRusso told him that Beulieu 7 In his pretrial statement, Coulter stated; “Once Alamo finished his interview process and provided the results to Parksite, I made the final hiring decisions to fill all distribution function positions at our distribu- tion centers, including deciding who to hire as our drivers and ware- housemen at each location. . . . I relied on Alamo’s results, any per- sonal knowledge I had of each applicant, and on input from local Park- site personnel on their experience and opinion of the applicants that were former Ryder employees. . . . I also reviewed the “Interview questions” and answers as recorded by Alamo of all external candi- dates, as I had no previous knowledge or information on those candi- dates.’” was careless and had, on one occasion, tossed a lap top com- puter in the air. (There is no suggestion that it fell). And yet LaRusso never testified in this proceeding and there- fore did not confirm that these opinions were true and accurate. As to Burleigh and Rodriquez, Coulter testified that he inde- pendently was aware that these two individuals had problems with some customers who did not want them to come to their facilities. Burleigh admitted that in 2007, he did get into an altercation with a customer and was banned from that site. Rodriguez conceded that a customer had complained about him and banned him from its premises. But this was in 2000, quite a long time ago. Notwithstanding the above, Jeff Ogren, a former Ryder truckdriver who was offered employment by the Respondent, credibly testified that during his employment at Ryder he re- ceived disciplines for accidents and attendance problems. He also testified that he too received complaints from customers. Based on all of the above, I conclude, contrary to the not- credited assertions of James Coulter, that the principle motiva- tion in not hiring the former Ryder employees was to evade unionization and not because of the employees’ alleged short- comings. I therefore conclude that the Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire these indi- viduals. CONCLUSIONS OF LAW 1. The Parksite Group is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters, Local Union No. 671, is a labor organization within the meaning of Section 2(5) of the Act. 3. The appropriate unit consists of all full-time and regular part-time drivers, warehouse employees, and lead men em- ployed at the South Windsor facility, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. 4. By discriminatorily refusing to hire employees who had previously been employed by Ryder Integrated Logistics at Parksite’s South Windsor, Connecticut facility, the Respondent has violated Section 8(a)(1) and (3) of the Act. 5. By refusing to recognize and bargain with the Union as the collective-bargaining representative of its employees em- ployed in the aforesaid unit, the Respondent has violated Sec- tion 8(a)(1) and (5) of the Act. 6. By unilaterally changing wages, hours, and other terms and conditions of employment of the employees in the above- described unit without first giving notice to and bargaining with the Union, the Respondent has violated Section 8(a)(1) and (5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Parksite has engaged in various unfair la- bor practices, I shall recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. PARKSITE GROUP 13 Inasmuch as I have determined that Parksite illegally refused to offer jobs to former Ryder employees who worked at the South Windsor facility, I shall recommend that the Respondent offer them instatement to their former jobs, or if those jobs are no longer available, to substantially equivalent positions of employment and make them whole, with interest, for any loss of earnings they suffered as a result of the discrimination against them. The fact that the Respondent has hired other employees to do these jobs shall not be construed as meaning that the discriminated employees’ job are no longer available. The Respondent can of course employ anyone it chooses, but it must nevertheless make job offers to the 10 former Ryder em- ployees who were discriminated against. I shall also recommend that Parksite be ordered to recognize and bargain with Local 671. Further, as I conclude that the Respondent was obligated, under such cases as Daufuskie Club, Inc. d/b/a Daufuskie Club and Resort, 328 NLRB 415 (1999), U.S. Marine Corp., 293 NLRB 669, 670 (1989), NLRB v. Advanced Stretchforming International Inc., 165 LRRM 2870 and NLRB v. Staten Island Hotel Limited Partnership, 101 F.3d 858, 862 (2nd Cir. 1999), to bargain before changing the previously extant terms and conditions of employment, I shall recommend that the Respon- dent restore, to the extent possible, the wage rates and other terms and conditions of employment that were enjoyed by the predecessor’s employees. See also Planned Building Services, Inc., 347 NLRB 670, 673 (2006).8 To the extent that employ- ees have suffered any losses as a result of these unilateral changes, I shall recommend that the Respondent make them whole, with interest, for such losses. The General Counsel argues that the Board should order that interest be paid on a compound basis instead of on the basis of simple interest. To date, this change in the interest rate has not been adopted by the Board. Carpenters Local 687, Michigan Regional Council (Convention & Show Services, Inc.); 352 NLRB 1016 (2007). As the General Counsel is contending that the Board should change its existing policy on interest, I shall defer that matter to the Board and make no recommendation. 8 When Parksite took over the operation, the employees who were formerly employed by Ryder and were hired by Parksite, were paid at the same wage rates that they were paid under the Ryder/Local 671 contract. The non-Ryder employees were paid at a lower rate, but under the aforesaid collective-bargaining agreement, new hires were paid at lower rates and I therefore cannot determine in this preceding that the wages given to the new employees constituted a change. Under the Ryder/Local 671 contract, the employees were entitled to partici- pate in Ryder’s 401(k) plan and Ryder’s health care plan. When Park- site took over, the employees were covered by Parksite’s 401(k) plan and Parksite’s health plan. From an economic point of view, the record does not show whether the benefits of either company’s plans were better for the employees than the other company’s plans. This can be reviewed in the compliance stage of this proceeding. For example, it is hypothetically possible that under Ryder’s plan a medical procedure might have been covered or reimbursed at a different level than the same procedure under Parksite’s medical plan. If an employee who incurred a medical expense after being employed by Parksite would have received a greater benefit under the Ryder plan than under the Parksite plan, then he should be compensated for the difference. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended9 ORDER The Respondent, Parksite Group Inc., its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discouraging activity and support for International Brotherhood of Teamsters, Local 671 by refusing to hire or in any other manner discriminating against employees with re- spect to their hours, wages, or other terms and conditions of employment in order to avoid having to recognize and bargain with Local 671. (b) Refusing to recognize and bargain with Local 671 as the exclusive collective-bargaining representative of its drivers and warehousemen employed at the Respondent’s facilities in South Windsor, Connecticut. (c) Unilaterally changing the wages, hours, and other terms and conditions of employment of the employees in the above described unit without first giving notice to and bargaining with Local 671. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Recognize and, on request, bargain collectively with Lo- cal 671 as the exclusive representative of its full-time and regu- lar part-time drivers and warehousemen employed at its South Windsor, Connecticut facility with respect to wages, hours, and other terms and conditions of employment, and if an agreement is reached, embody such agreement in a signed document. (b) Make whole, in the manner set forth in the remedy sec- tion of this decision, the unit employees for losses caused by Parksite’s failure to apply the terms and conditions of employ- ment that existed prior to its commencing operations at the South Windsor facility until such time as the parties have reached an agreement or until a valid impasse in bargaining has occurred.10 (c) Within 14 days from the date of this Order, offer Brian Barber, Michael Beaulieu, Andrew Burleigh, Doug Davis, Benny Ingenito, Joseph Moyles, Evernard “Robbie” Roberts, Estaquio “Jay” Rodriguez, Jack Teske, and Ivan Vasquez in- 9 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. 10 In Planned Building Services, 347 NLRB 670 (2006), the Board concluded that it would permit the Respondent, in a compliance pro- ceeding, to present evidence establishing that it would not have agreed to the monetary provisions of the predecessor employer’s collective- bargaining agreement and to establish either the date on which it would have bargained to agreement and the terms of the agreement that would have been negotiated, or the date on which it would have bargained to good-faith impasse and implemented its own monetary proposals. While I am not sure how this speculative inquiry would be reasonably adjudicated or what kind of objective evidence would be taken, this is the law and is recommended as part of this Remedy. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 14 statement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole with interest, for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this deci- sion. (d) Within 14 days from the date of this Order, remove from its files any reference to the unlawful actions against the em- ployees named above and within 3 days thereafter, notify them in writing, that this has been done and that the refusals to hire, will not be used against them in any way. (e) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (f) Within 14 days after service by the Region, post at its fa- cilities in South Windsor, Connecticut, copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 34, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, or sold the business or the facilities involved herein, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respon- dents at any time since January 1, 2008. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. Dated, Washington, D.C., November 26, 2008. 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 vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. FEDERAL LAW GIVES YOU THE RIGHT TO 11 If this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties WE WILL NOT discourage activity and support for Interna- tional Brotherhood of Teamsters, Local 671 by refusing to hire or in any other manner discriminating against employees with respect to their hours, wages, or other terms and conditions of employment in order to avoid having to recognize and bargain with Local 671. WE WILL NOT refuse to recognize and bargain with Local 671 as the exclusive collective-bargaining representative of its driv- ers and warehousemen employed at its facilities in South Win- dsor, Connecticut. WE WILL NOT unilaterally change the wages, hours, and other terms and conditions of employment of the employees in the above described unit without first giving notice to and bargain- ing with Local 671. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce employees in the exercise of the rights guaran- teed them by Section 7 of the Act. WE WILL recognize and, on request, bargain collectively with Local 671 as the exclusive representative of its full-time and regular part-time drivers and warehousemen employed at its South Windsor, Connecticut facility with respect to wages, hours, and other terms and conditions of employment, and if an agreement is reached, embody such agreement in a signed document. WE WILL make whole the bargaining unit employees for any losses caused by Parksite’s failure to apply the terms and condi- tions of employment that existed prior to its commencing op- erations at the South Windsor facility until such time as the parties have reached an agreement or until a valid impasse in bargaining has occurred WE WILL offer Brian Barber, Michael Beaulieu, Andrew Bur- leigh, Doug Davis, Benny Ingenito, Joseph Moyles, Evernard “Robbie” Roberts, Estaquio “Jay” Rodriguez, Jack Teske, and Ivan Vasquez instatement to their former jobs, or if those jobs no longer exists, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and make them whole, with interest for any loss of earnings and other benefits suffered as a result of the discrimination against them. WE WILL remove from our files any reference to the unlawful actions against the employees named above and notify them in writing, that this has been done and that the refusals to hire, will not be used against them in any way. PARKSITE GROUP,INC.