Servair, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Servair, Inc. and Servair Maintenance, Inc. and Local 32B-32J, Service Employees Internation- al Union, AFL-CIO and Local 54, Service Em- ployees International Union, AFL-CIO and In- ternational Union of District 55, Allied and In- dustrial Workers of the United States and Canada, Party to the Contract. Cases 29-CA- 6834 and 29-CA-6867 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS ANI) PENEI.LO On June 9, 1980, Administrative Law Judge James F. Morton issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and Charging Party Local 32B-32J filed a brief in support of the Administrative Law Judge's Decision and in oppo- sition to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, Servair, Inc. and Servair Maintenance, Inc., New ' Respondent has excepted to certain credibility finditgs made by the Administrative Law Judge It is the Board's established policy not to overrule an administrative law judge's resolutions with respect It credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Srtandurd Dry, Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing his findings I In the absence of exceptions we adopt proforma the Administrative Law Judge's dismissal of the allegations in the complaint alleging that Respondent violated Sec. 8(a)(3) and (1) of the Act by refusing to hire the mechanics formerly employed by Triangle Maintenance, or Sec 8(a)(5) and (1) of the Act by refusing to honor the request by l.ocal 54 to bargain collectively with it as the representative of those mechanics : The Administrative Law Judge inadvertently omitted from his rec- ommended Order and notice either a narrow or broad order prossionl enjoining Respondent from interfering with, restraining, or ceorcing em- ployees in the exercise of their protected Sec 7 rights. We shall therefore modify his recommended Order and notice to include a broad order, since we find that Respondent's unlawful conduct demonstrates a procliv- ity to violate the Act.and that Respondent has engaged in such egregious and widespread misconduct so as to demonstrate a general disregard for its employees' fundamental statutory rights Ilickmott -hods. Inc., 242 NLRB 1357 (1979). York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph l(g): "(g) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPI.OY.ES POSTEr) BY ORDER OF THE NAIONAI. LABOR RE.ATIONS BOARD An Agency of the United States Government WE WIll. NOi recognize International Union of District 55, Allied and Industrial Workers of the United States and Canada, as the exclu- sive collective-bargaining representative for janitors and mechanics employed by us at the National Airlines terminal at John F. Kennedy International Airport in New York, New York, unless and until District 55 is duly certi- fied by the National Labor Relations Board as such representative. WEt WiI . NOT require janitors and mechan- ics employed by us at that facility to join Dis- trict 55 as a condition of employment. WE WlI.I. NOT assist District 55 in obtaining signed membership applications, and we will not designate District 55 stewards. WI wII 1. NOT give effect to any collective- bargaining agreement with District 55 as to janitors and mechanics employed by us at the National Airlines terminal at John F. Kennedy Airport. WE WILL NOT fail and refuse to recognize and bargain collectively with Local 32B-32J, Service Employees International Union, AFL- CIO, as the exclusive collective-bargaining representative of all janitors employed by us at the National Airport terminal at John F. Ken- nedy Airport. Wl WI.l. NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the National Labor Relations Act, as amended. Wi wilt offer all janitors who were em- ployed by Triangle Maintenance Co. at the National Airlines terminal at John F. Kennedy Airport on November 30, 1978, employment as janitors at that facility or, if such positions no longe exist, to substantially equivalent posi- 252 NLRB No. 93 670 SERVAIR INC. AND SERVAIR MAINTENANCE, INC tions at our other locations at the airport or place them on a preferential hiring list, with- out prejudice to their seniority or any other rights or privileges previously enjoyed, replac- ing, if necessary, any janitors employed at the National Airlines terminal who were not em- ployed there on November 30, 1978, by Trian- gle Maintenance Co., and make them whole for all losses they may have suffered by reason of our discrimination against them, with inter- est. WE WILL reimburse all janitors and mechan- ics employed by us at the National Airlines terminal at John F. Kennedy Airport for all dues and other moneys deducted from their wages pursuant to the union-security provision of the contract between District 55 and us, with interest. WE WILL recognize and bargain collectively with Local 32B-32J, Service Employees Inter- national Union, AFL-CIO, as the exclusive collective-bargaining representative of all jani- tors employed by us at the National Airlines terminal at John F. Kennedy Airport. SERVAIR, INC. AND SERVAIR MAIN- TlENANCE, INC. DECISION S'IATEMI NrT OF THEI CASE JAMES F. MORTrON, Administrative Law Judge: This case was heard before me in Brooklyn, New York, on January 21 and 22, 1980. Local 32B-32J, Service Em- ployees International Union, AFL-CIO (herein called Local 32) filed the unfair labor practice charge in Case 29-CA-6834. Local 54, Service Employees International Union, AFL-CIO (herein called Local 54) filed the charge in Case 29-CA-6867. These cases were consoli- dated and a complaint issued against Servair, Inc. and Servair Maintenance, Inc. (herein jointly called Respond- ent) alleging that it violated Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as amended (herein called the Act). The complaint alleged that Re- spondent unlawfully recognized International Union of District 55, Allied and Industrial Workers of the United States and Canada (herein called District 55) as the col- lective-bargaining representative for a unit of janitors and maintenance mechanics employed by Respondent at the National Airlines terminal at John F. Kennedy Inter- national Airport, New York (herein called J.F.K. Air- port). The complaint further alleged that Respondent un- lawfully conditioned the hiring by it of employees of its predecessor by requiring that they join District 55, and that they work under a contract Respondent had earlier signed with District 55. The complaint also alleged that Respondent has unlawfully refused to bargain collective- ly with Local 32 and Local 54 for units of, respectively, janitors and maintenance mechanics employed by Re- spondent at the National Airlines terminal, J.F.K. Air- port. Respondent and District 55 contend that Respond- ent's operations at the terminal have been an accretion to similar operations Respondent has at other terminals at J.F.K. Airport, and that they properly applied their ex- isting collective-bargaining agreement to the National Airlines operations when Respondent obtained that addi- tional service work. Upon the entire record, including my observations of the demeanor of the witnesses, and after careful consid- eration of the briefs filed by the General Counsel and Respondent, I make the following: FINDINGs or FAC-i I. JURISDICTION As the pleadings and stipulations received at the hear- ing establish, Respondent is an employer engaged in commerce w ithin the meaning of Section 2(2), (6), and (7) of the Act, and Local 32, Local 54., and District 55 are labor organizations within the meaning of Section 2(5) of the Act. 11. THE AlIIGEI) UNFAIR I.ABOR PRACTIICIS A. Facts 1. Background National Airlines operates a terminal at J.F.K. Airport in New York City. In 1969, National subcontracted the janitorial work to a company called Mohawk Mainte- nance. Mohawk then entered into a contract with Local 32 which covered those employees. National, also in 1969, subcontracted to Mohawk the mechanical work at its J.F.K. Airport terminal. The mechanical maintenance work involves servicing the air conditioning and heating equipment at the terminal, repair of jetways (the tele- scoping loaders used by passengers to leave the terminal to board a plane or to exit from the plane into the termi- nal), maintenance of lighting equipment, and so on. Mohawk had 13 mechanics in its employ at that terminal, and they were covered by a collective-bargaining agree- ment between Mohawk and Local 54 until November 1975. In the fall of 1975, National asked for bids from con- tractors to perform the janitorial and mechanical mainte- nance services at its J.F.K. Airport terminal. (It appears that many of the numerous airlines at J.F.K. Airport reg- ularly seek bids for such services and also for skycap services, baggage handling services, ticket, and other services.) The successful bidder then was Triangle Main- tenance; the General Counsel contends that Triangle is the predecessor of Respondent. When Triangle Maintenance took over from Mohawk in November 1975, the 13 maintenance mechanics at the National Airlines terminal who had been in Mohawk's employ insisted that Triangle hire all of them, recognize their collective-bargaining representative, Local 54, and honor the terms of Local 54's contract with Mohawk. Triangle did so. It appears that Triangle also at that time recognized Local 32 as the representative of the janitori- 671 DECISIONS OF NATIONAL LABOR RELATIONS BOARD al employees and followed the terms of the contract Local 32 had with Mohawk. By October 1978, the Triangle Maintenance mechanics at the National Airlines J.F.K. terminal were earning close to $7 an hour, and expected to receive a raise under the Local 54 contract of from $.50 to $1 an hour before the end of 1978. At that time, however, National Airlines called for bids on the mechanical maintenance services, and also for the performance of the janitorial services at its J.F.K. Airport terminal. Respondent's bid was accepted by National. On No- vember 20, Local 32 notified Respondent by telegram that all janitors employed by Triangle seek employment with Respondent at the National Airlines terminal. Local 54 wrote Respondent on November 21, that Respondent, as the successor to Triangle, must recognize Local 54 for the mechanics' unit; Local 54 requested bargaining. Re- spondent did not answer Local 32 or Local 54. In late November 1978, National signed an agreement with Respondent effective from December 1, 1978, to December 31, 1981, whereby Respondent would perform all janitorial and mechanical maintenance work at Na- tional's terminal at J.F.K. One of the mechanics testified that, somehow through "shop talk," they learned that Respondent had received the contract from National and it appears, from his testimony that the mechanics knew that Respondent's hourly wage rate for mechanics was about $3 less than what they had expected to get under the Local 54-Triangle contract. He also testified that the 13 mechanics had constituted a steady crew at the Na- tional terminal as some had worked there for as much as 9 years as of 1978, that they had succeeded in 1975 in having Triangle "absorb ' the contract Local 54 had with Mohawk Maintenance and that the mechanics intended in 1978 to stick together so that Respondent would simi- larly "absorb" the last contract Local 54 had signed with Triangle. It was in this posture that the mechanics re- ceived visits from Respondent's officials in late Novem- ber 1978. 2. Meetings held by Respondent with Triangle's mechanics Joseph Calandra, a witness called by the General Counsel, testified that a few days before he was laid off by Triangle Maintenance on November 30, 1978, Angelo Ciotta, Respondent's building maintenance supervisor, came to the machine shop at the National Airlines termi- nal at J.F.K. Airport. Ciotta had employment application forms with him and informed Calandra and three other mechanics who were there then that Respondent would be "taking over" after November 30, and that they should fill out the applications and that he would pick them up later. Calandra testified that he "told (Ciotta) short and sweet" that the mechanics were thirteen men who stick together. Ciotta responded that John Man- gano, Respondent's director of maintenance, would meet with the men. Ciotta was given a copy of the contract Local 54 had with Triangle. Calandra said that Ciotta told them that Mangano would not talk with them if they brought their union representatives. Mangano met with the day shift mechanics about noon on November 27, 1978. Mangano asked them to fill out the employment application forms and to come to his office with them. A mechanic, Richard Zavada, testified as follows as to what happened thereafter. He told Man- gano that all 13 worked as a group and that they had their own union contract. Zavada asked Mangano if he intended to hire all 13. Mangano replied that that was impossible and that he could take "a few." When Zavada asked what Respondent's wage rate for mechanics was, Mangano stated that the Triangle mechanics would have to take an enormous cut in pay. Mangano asked them what union represented them. When Zavada told him it was Local 54, Mangano said, "no way" and that if they, the mechanics, came to work for him, they would have to come in with Mangano's union, District 55. Mangano told them that he would not interview them as a group. On that note, the meeting ended. According to Zavada, Mangano returned 2 days later to tell the eight or nine mechanics present then that he would like to interview them individually and asked to speak with one of the me- chanics privately. He told Mangano that the mechanics would not make individual applications, and that there was no need for any private talks. On November 30, 1979 (the last day the mechanics worked for Triangle) they had a vote among themselves to decide whether they would seek employment with Respondent at an hourly wage rate of $3 less than what they would have received as Triangle's employees, and whether they would join District 55. It appears that they all voted against these proposals. Mangano met with several of the night shift mechanics at about 5 p.m. on November 27, according to Herman Huber, a witness for the General Counsel. Huber testi- fied that Mangano told them that Respondent could not pay them the wages they were earning there at Triangle and that Respondent could not accept Local 54 becasue it had a contract with another union, which the mechan- ics must join sometime after they would become employ- ees of Respondent. Huber stated that none of the thirteen mechanics handed in applications to Respondent because they knew then that there was no future, no job security, in working at the airport. Mangano, in testifying for Respondent, related that, at the meetings referred to above, he attempted to make sense to these employees that if they came up to his office for interviews, he would be able to offer them em- ployment, but he was told that he had to take all thirteen or none and the Local 54 contract. He denied telling the mechanics that "they had to go into District 55 or any union" or informing them of the wages they would be paid. I do not credit this denial as the accounts of the General Counsel's witnesses were consistent with Re- spondent's contentions respecting the accretion issue, and as Mangano gave confused testimony regarding the number of its employees at J.F.K. Airport who work as janitors and as mechanics. I cannot believe that an execu- tive of his level who is testifying on such material issues would not have that data readily available. Mangano fur- ther testified that, when Respondent offered employment to Triangle's employees, he had openings at different lo- cations and that he intended to use other employees of Respondent to staff the janitorial and mechanical mainte- 672 SERVAIR. INC AND SERVAIR MAINTENANCE, INC. nance operations at National Airlines terminal at J.F.K. Airport. 3. Offers in January 1979 by Respondent to employ the 13 mechanics On January 11, 1979. Respondent sent identically worded telegrams to each of the thirteen mechanics who had worked for Triangle. Each telegram stated that Re- spondent, without prejudice to its legal position, hereby unconditionally offers employment to each of them. The telegram stated that the addressee must report in person to Respondent's personnel manager by January 15, 1979, and that failure to report "will be considered a refusal to work for Respondent and a voluntary quit." Richard Zavada who, as noted above, had been I of the 13 Triangle mechanics, saw Mangano at his office shortly after receiving the telegram of January 11 that had been sent to him. Mangano offered him a wage rate of $5 an hour, and informed him that he would have to join District 55. Zavada's testimony indicates that he had gone to that interview, not to seek employment with Re- spondent, but only to obtain information. 4. Interview at the Holiday Inn in November 1978 and the employee meeting in December 1978 William Evelyn testified for the General Counsel that he had been employed by Triangle Maintenance per- forming road repair work at the National Airlines termi- nal at J.F.K. Airport, and was laid off on November 30, 1978. Local 32 had represented him and the other janito- rial employees of Triangle. In late November 1979, he was told by one of Respondent's supervisors, Herman Green, he had to go to the Holiday Inn if he wanted to apply for a job with Respondent. The Holiday Inn is lo- cated at J.F.K. Airport. Evelyn went there. Green intro- duced him to Mangano who gave him a number of forms to fill out, including a W-4 form, a three page job appli- cation form and union forms. He filled these out and re- turned them to Mangano who told him that he, Evelyn, would be paid $3.50 an hour. Evelyn asked Mangano if he could remain a member of Local 32 because he was then attending its trade school. Mangano said he had no objection. Sometime during the month of December 1978, Evelyn attended a meeting at the National Airlines terminal with a number of Respondent's employees. Mangano introduced Gentile, president of District 55, to them and remained throughout most of Gentile's talk. Evelyn asked what benefits, such as medical benefits, would the employees expect to receive. Gentile respond- ed that he was not prepared to discuss medical insurance coverage since the year was coming to an end. Gentile told them that District 55 was waiving union dues and initiation fees at this stage and that, after the New Year, he will explain in detail what District 55 has to offer, and that "union dues, initiation fees would commence to be deducted." It appears that after the New Year some dues were deducted by Respondent, but have been held in escrow. 5. The bargaining history Respondent asserts that its employees who have per- formed the janitorial and mechanical maintenance work at the National Airlines terminal at J.F.K. since Decem- ber 1, 1978, have constituted an accretion to a unit of its janitorial and mechanical maintenance employees em- ployed at other terminals at J.F.K. Airport prior to and since that date, and which is represented by District 55. Respondent's director of maintenance. Mangano, testified that he is responsible for all of Respondent's operations at airports on the eastern seaboard. Those operations in- clude aircraft cleaning, janitorial services, ticket commut- er services, skycap services, ramp services, and building mechanical maintenance. At one point, all of Respondent's employees who were working at various terminals at J.F.K. Airport were cov- ered by one contract Respondent had with District 55. During negotiations, apparently in mid-1977, several groups of its employees requested that separate contracts be negotiated to reflect the distinctive concerns of these groups. As a consequence, a separate contract was signed between Respondent and District 55 on July 1977, for three of Respondent's skycap employees, who worked at the National Airlines terminal at J.F.K. An- other contract also dated July 1, 1977, covered 5 traffic agents then employed by Respondent at Lufthansa's ter- minal at J.F.K. A third contract covered about 25 bag- gage handlers employed by Respondent at the Interna- tional Arrivals Building at J.F.K. Airport; they handled baggage for Air France, Swissair, J.A.L., Aeromexico, and other airlines. A fourth contract, also executed between Respondent and District 55 on July 1, 1977, covered janitors and me- chanical maintenance employees. It is the unit covered by this contract to which Respondent would accrete the janitors and maintenance mechanics employed by Re- spondent on and after December 1, 1978, at the National Airlines terminal at J.F.K. Airport. As of November 1978 (just prior to the takeover by Respondent of the janitorial and building maintenance work at that termi- nal) that contract covered about 30 to 35 of Respond- ent's employees at J.F.K. Airport, including 6 at Iberia Cargo, 7 at SAS Cargo, 7 at the SAS terminal building, 2 at Respondent's own building and an unidentifiable number at the Alitalia terminal, and other janitors who worked on an irregular basis sweeping ramps at Sea- board Airlines, Flying Tiger Airlines, and rent-a-car lo- cations. The contract contained a clause which provides that Respondent recognizes District 55 as sole collective- bargaining agent for employees in the classifications listed therein, and for such other classification as may thereafter be agreed on and whose job assignments are at U.S. and Canadian airports. The job classifications listed therein are janitors and building maintenance mechanics. Appended thereto is a wage schedule for only building maintenance mechanics which lists rates to be paid at various intervals and which contains a provision that Re- spondent may, with District 55's permission, pay above that scale. Wage rates for janitors are set out in the body of the contract; no provision was made therein whereby Respondent could pay janitors above those rates. The h73 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract also contained a union-security clause requiring employees to join District 55 after 45 days of employ- ment, a dues check-off clause, and provisions for hospi- talization insurance and life insurance benifits, designated holidays, sick leave, and vacation benefits. It became ef- fective July 1, 1977, and is scheduled to expire on June 30, 1980. It was signed by Joseph Gentile, Sr., for Dis- trict 55 and John Mangano for Respondent. As noted above, William Evelyn was hired on December 1, 1978, by Mangano as a janitor at $3.50 an hour. The beginning rate for janitors under the District 55 contract is $2.90 an hour. Even were he credited with the increments pro- vided for in the contract, the most Evelyn would have been entitled to was $3.15 an hour. Further, and as also noted above, Evelyn had asked Joseph Gentile, Sr., at a meeting in December 1978 at which Mangano was pres- ent, what benefits, such as medical, were offered to em- ployees, and Gentile responded that he was not prepared to go into that since the year was almost at an end and that assessment of dues was being deferred until after the New Year. Another janitorial employee, Steve Kosikski, testified that he had worked for Triangle and that on about November 30, Mangano hired him at $3.50 an hour. When he began work for Respondent at National's terminal at J.F.K. on December 1, Respondent's building maintenance supervisor, Ciotta, gave him a District 55 union card to sign. No dues have been deducted from Kosikski's wages. Respondent's director of maintenance, Mangano, testi- fied that the bid Respondent submitted to National Air- lines in October 1978, was based on its using 13 full-time maintenance mechanics, and approximately 25 janitors. Although the number of mechanics coincided exactly with the number then employed by Triangle at Nation- al's terminal at J.F.K., Mangano testified that he intend- ed to employ only some of them at that location if they applied, and to assign the remainder to other unspecified locations. He did not make clear where their "substi- tutes" would come from. His testimony as to the compo- sition of the unit covered by the District 55 contract in November 1978, does not disclose how many mechanics were employed therein. The inference is that only a few were mechanics and that inference is supported by the fact that, by January 15, 1979, i.e., after an initial 6-week break-in period during which Respondent assigned an unusually large number of janitors and mechanics to Na- tional's terminal, it had in its employ 13 newly hired me- chanics at that terminal who are covered by that con- tract. Also covered thereunder as of January 15, 1979, were approximately 23 janitors employed by Respondent at the National Airlines terminal at J.F.K. Airport, 5 of whom had worked for Triangle there until November 30, 1978, 7 came from other locations where Respondent employed them as janitors, and the remainder were newly-hired. Mangano testified that the 13 mechanics at that terminal are permanently assigned there and rarely work elsewhere. Once or twice a month a mechanic is sent to assist at National's terminal at LaGuardia Air- port. Respecting the janitors, Mangano stated that those on the day shift are not assigned to other locations but Respondent has taken the liberty to reassign to other lo- cations some on its night shift there. It appears from his testimony that National Airlines looks with disfavor on Respondent's transferring janitors from its terminal. From District 55's standpoint the relevant bargaining history is as follows. Its president testified that he began organizing Respondent's employees in 1977 after he re- tired in 1976 at age 65 from his affiliation with "the Steel Workers Union." At that time, he was appointed presi- dent of District 55 by its ex-president whose name he testified he could not recall. He testified that he had a meeting in 1977 with about 22 baggage handlers and janitors working for Respondent at locations in J.F.K. Airport, obtained signed cards from them, and sent a letter to Respondent demanding recognition. Later in his testimony, he stated that he may have first organized the skycaps employed by Respondent at J.F.K. At another point, he said that there were mechanics employed by Respondent in the first group he organized, and that a few of these mechanics worked at LaGuardia Airport. He held two meetings thereafter in 1977 with Re- spondent's employees. At the first meeting, they agreed upon contract proposals and at the next they ratified the agreement. It appears that in the interval between these two meetings a contract covering all Respondent's em- ployees, skycaps, janitors, etc., was agreed upon. Gentile testified that at the time the contract covering janitors and mechanics was signed on July 1, 1977, as related above, it covered only employees of Respondent who worked at J.F.K. Airport. I note that the recognition clause applies to all of Respondent's operations through- out the U.S. and Canada. George Bil, District 55's shop steward at the National Airlines terminal at J.F.K. Airport, was the last witness to testify. He was hired as a new employee by Respond- ent and began working first on December 1, as a mainte- nance mechanic at the National Airlines terminal at J.F.K. Airport. On that day, Respondent's maintenance supervisor, Angelo Ciotta, asked him to be District 55's shop steward as all the other employees were young and had no experience as far as unions were concerned. Bil and Ciotta had known each other for the previous 15 years as they had worked together in the construction in- dustry. In fulfilling his functions as District 55's shop ste- ward, Bil obtains blank District 55's cards from the desk of one of Respondent's supervisors, gives them to new employees to fill out, and then returns the completed union cards to a manila envelope which is left in the office used by Mangano's secretary. District 55's presi- dent apparently picks these cards up on a regular basis. B. Analysis 1. Summary of relevant facts The relevant facts may be summarized as follows. Gentile was mysteriously appointed president of District 55 upon his retirement from another labor organization. He was successful in 1977 in organizing and negotiating a contract for an amalgam of skycaps, baggage handlers, ticket clerks, janitors, and maintenance employees em- ployed by Respondent at various locations at J.F.K. Air- port. That unit was quickly broken up into smaller ones to reflect the separate interests of the respective employ- 674 SERVAIR. INC AND SERVAIR MAINTENANCE, INC ee classifications. One of the contracts executed on July 1, 1977, covered about 30 to 35 janitors and maintenance mechanics employed as of November 30, 1978, by Re- spondent at various Iccations at J.F.K. Airport. The tes- timony of Respondent's director of maintenance does not make clear how many of these employees were classified as janitors or maintenance mechanics at the time Re- spondent "accreted" the 13 mechanics and about 25 jani- tors who would begin work on December 1, at the Na- tional Airlines terminal to the unit covered by that con- tract. Respondent made it clear to the 13 mechanics em- ployed in November by Triangle Maintenance and to its janitors that they would be hired by Respondent but would be required to join District 55. The 13 Triangle mechanics refused to apply to Respondent for employ- ment because the contractual wage rate was too low and because they wanted Local 54 to continue to represent them as a separate unit so that they could continue to hope for job security at the National Airlines terminal. Some of Triangle's janitors were hired at rates different from those provided for in the District 55 contract; they were told by District 55's president at a meeting attend- ed by Respondent's director of maintenance that they could not then be told what medical or other benefits they would have; and they were given District 55 cards by Respondent's supervisors. On the day Respondent took over from Triangle, Respondent appointed a me- chanic as District 55's steward. From December 7, 1978, to January 15, 1980, Re- spondent overstaffed the janitorial and mechanical main- tenance complement at the National Airlines terminal to insure that these operations would be properly handled. By the latter date, it had established its permanent work force there, consisting of 13 mechanics and about 23 jani- tors. All of the former group were newly hired; only a few of the latter were transferred from its other loca- tions-the remainder were former Triangle janitors and newly hired employees. It appears that they continued to function as separate groups particularly as National Air- lines looks with disfavor on Respondent's transferring employees, and as the mechanics' rate of pay is substan- tially higher than that of the janitors. 2. The accretion issue Respondent has contended that the approximately 36 employees hired or assigned to the janitorial and mainte- nance mechanical work at the National Airlines terminal at J.F.K. Airport are an accretion to the contractual unit represented by District 55 composed of 30 to 35 janitors and mechanics employed by Respondent at other facili- ties at that Airport. The Board has adopted the view, as have the Courts, that the accretion principle is to be nar- rowly construed to insure that the employees involved are not deprived of rights they may have under Section 7 of the Act to freely choose whether or not they desire representation. ' An accretion is found where a relatively small related operation is included in or added to the coverage of a collective-bargaining unit involving a i MeCyer. Inc. d/b/a eijer's Thriftv Acres, 222 NLRB 18, 24 (1976) larger group of employees. 2 It is clearly unlawful to "ac- crete" a large group to a small unit. ' In view of the limited and fragmented bargaining his- tory, the fact that Respondent sought to add about 36 employees to a contractual unit of about 30 employees; the fact that Respondent's and District 55's respective representatives failed even to disclose that the medical benefits under that contract would be applied to the em- ployees working as janitors and mechanics at the Nation- al Airlines terminal; the fact that the janitors receive wage rates different than those provided for in the Dis- trict 55 contract; the fact that Respondent appointed Dis- trict 55's shop steward there, and as Respondent actively solicited District 55 cards among those employees, I con- clude that these employees were not an accretion to the contractual unit. Accordingly, I find that Respondent un- lawfully assisted and unlawfully recognized District 55 as the collective-bargaining representative for these em- ployees, and thereby violated Section 8(a)(1) and (2) of the Act. Respondent's requiring these employees to join District 55 as a condition of their employment separately violated Section 8(a)(3) of the Act. 3. The alleged discriminatory refusal to hire the Triangle employees Respondent notes that it never refused to hire any of the Triangle employees and that it instead asked all of them to apply for employment and hired those that did so. It thus contends that the allegation that it discrimina- torily refused to hire them must be dismissed. This con- tention overlooks the fact that Respondent conditioned its offers of employment upon their accepting District 55 as the collective-bargaining representative. The imposi- tion of such a discriminatory term and condition of em- ployment constitutes a violation of Section 8(a)(1) and (3) of the Act. Nevertheless, the General Counsel must still establish that there was a causal connection between Respondent's imposition of the illegal condition and the failure of thirteen mechanics in Triangle's employ to apply for employment with Respondent. 4 The record is clear that, at about the same time Respondent imposed the unlawful condition, the thirteen mechanics had de- cided among themselves and notified Respondent that they would not work for Respondent at less than they were making with Triangle or without Local 54 as their representative or without all the benefits of the contract Local 54 had with Triangle. I am convinced that this was not a bargaining tactic or ploy to get somewhat better wages and benefits out of Respondent than those that it had been providing for its janitors and mechanics elsewhere at J.F.K. Airport locations. The testimony of the Triangle mechanics convinces me that they viewed themselves as puppets on a string, and that every 3 years or so National Airlines would change the puppeteer. In that regard, I note that Mangano testified that they told him that if he wanted them as employees, he should go to National Airlines and get more money for them. ludn.. Berlind Corporalon, 203 NLRB 421, 422 (1973) :Th IhWcAenhut Cororuain. 22h N.RB 1085 (197h) 4 Inlrsrute 65 Corporutun db/a Conllnenlal Inn, 186 N.RB 248 (1970) h75 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zavada testified that the mechanics insisted on Respond- ent's assuming the Local 54 contract as, otherwise, they would have no job security in view of National Airlines practice of letting out bids every 3 years. Another Trian- gle mechanic testified that he was too old to have his job put in jeopardy at regular intervals. I accept the testimo- ny of these mechanics that they had no intention of working for Respondent for $5 an hour, or of surrender- ing to it their hard won gains in bargaining since 1969. At best, they exhibited disinterest in Respondent's posi- tion that they would be required to join District 55. The General Counsel still urges that Respondent be required to offer them employment at $5 an hour and without the benefits they enjoyed under the Local 54 contract. To require Respondent to make such an offer would only encourage these mechanics to exhibit distain for, rather than mere disinterest in, the remedial powers of the Board. They have already made it eminently clear that such an offer is unacceptable. I find that the General Counsel has failed to establish a nexus between the refus- al of the Triangle mechanics to apply for positions with Respondent, and the unlawful requirement that they join District 55. I shall thus dismiss the allegation that they were discriminatorily denied employment by Respond- ent. s Respecting the janitors in Triangle's employ, I note that several did apply and now work for Respondent. No evidence was adduced by Respondent or appears in the record that the remaining janitors who worked for Triangle refused to apply to Respondent for reasons other than the requirement that they join District 55. I thus find that these janitors were discriminatorily refused employment by Respondent. 4. The alleged unlawful refusal by Respondent to recognize Local 54 and Local 32 for respective units of mechanics and janitors As I have found that Respondent did not unlawfully refuse to employ the 13 Triangle mechanics, I find that it had no obligation to recognize Local 54 as their repre- sentative, and shall therefore dismiss the allegation that it unlawfully failed to recognize Local 54. I have also found that Respondent unlawfully refused to hire most of the Triangle janitors and shall require it to offer them employment. As the record in this case dis- closes that the janitors now, working for Respondent have a separate community of interest for the mechanics, as they are not an accretion to the District 55 contract, and as it is National Airlines policy to have Respondent assign janitors on a permanent basis to its terminal at J.F.K. Airport, I find that Respondent's janitors consti- tute a separate bargaining unit. In these circumstnaces, I find that, but for the discriminatory refusal of Respond- ent to hire the Triangle janitors, Local 32 would have been the majority representative of the janitors. In view of this and the concerted efforts by Respondent to frus- trate their right to select freely their own representative, I find that it is appropriate to provide as a remedy that Respondent recognize and bargain collectively with Vatfage Petrollun Corp., 247 NlRB No 202 (198)) Local 32 as their representative.s I shall, however, dis- miss the alleged violation of Section 8(a)(5) as there is no evidence that Local 32 demanded that Respondent bar- gain with it. CONCI USIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local 54, Local 32, and District 55 are labor organi- zations as defined in Section 2(5) of the Act. 3. Respondent unlawfully recognized and assisted Dis- trict 55 in violation of Section 8(a)(1) and (2) of the Act. 4. Respondent violated Section 8(a)(l) and (3) of the Act by requiring its mechanics and janitors employed at the National Airlines terminal at J.F.K. Airport to join and pay dues and initiation fees to District 55 as a condi- tion of their employment. 5. Respondent violated Section 8(1) and (3) of the Act by refusing to hire most of the janitors previously em- ployed by Triangle because they are members of Local 32 and because they refused to join District 55. 6. To remedy the aforesaid violations, Respondent shall recognize and bargain with Local 32 as the exclu- sive collective-bargaining representative of the janitors employed by Respondent at National Airlines terminal at J.F.K. Airport. 7. Respondent did not violate Section 8(a)(l), (3), or (5) by failing to hire the 13 mechanics previously em- ployed by Triangle because they refused to apply to Re- spondent for employment with it for reasons other than Respondent's unlawful conditions as set forth in para- graph 4 above, or by failing to recognize Local 54 as their collective-bargaining representative. 8. Respondent did not violate Section 8(a)(5) by refus- ing to bargain with Local 32 as Local 32 made no demand therefor. THT REMEDY It will effectuate the purposes of the Act to require Respondent to withdraw and withhold recognition from District 55 as the collective- bargaining representative of the janitors and mechanics employed by Respondent at National Airlines terminal at J.F.K. Airport, unless and until District 55 is certified by the Board as their exclu- sive bargaining representative pursuant to a Board-con- ducted election, and to cease giving any assistance to District 55. To remedy the unlawful imposition by Respondent of the requirement that its janitors and mechanics at the National Airlines terminal must join District 55 as a con- dition of employment, I shall order it to cease and desist from such conduct, and to notify each of its present em- ployees so classified and all of the former Triangle em- ployees at that terminal that it no longer requires such membership in District 55 as a condition of employment. Such notice shall be by letter signed by a representative of Respondent, and sent to the home address of each such employee. Respondent shall reimburse all of its em- 6 Bausch & Lomb. Inc., 214 NLRB 338 (1974). 670 SERVAIR, INC AND SERVAIR MAINTENANCE, INC. ployees at the National Airlines terminal at J.F.K. Air- port employed as janitors and mechanics for all dues and other moneys deducted from their wages for District 55, with interest therein as provided for in Florida Steel Cor- poration, 231 NLRB 651 (1977). Respondent shall also be required to cease and desist from failing or refusing to hire employees because they are members of Local 32 or because they refused to join District 55 and to offer employment to all janitors for- merly employed by Triangle, except those now in its employ. Respondent shall, upon acceptance of such an offer, employ each such janitor at the National Airlines terminal as a janitor, replacing if necessary any janitor in its present employ there who was not formerly a Trian- gle employee. In the event such employment is not avail- able, Respondent shall offer them substantially equivalent employment at its other locations at J.F.K. Airport, or hire them as job openings occur. Respondent shall also make these janitors whole by payment to them of all wages and other moneys they lost as a result of their having been discriminatorily denied employment by it from December 1,. 1978, and until reinstatement is of- fered them, less net earnings during that period, to be calculated in accordance with the formula set forth in F. W Woolworth Company, 90 NLRB 289 (1951), with in- terest as provided for in Isis Plumbing & Heating Co., 138 NLRB 716 (1962) and Florida Steel Corporation, 231 NLRB 651 (1977). Finally, Respondent shall be required to recognize and bargain with Local 32 as provided for above. ORDER 7 The Respondent, Servair, Inc. and Servair Mainte- nance Inc., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Recognizing International Union of District 55, Allied and Industrial Workers of the United States and Canada (herein called District 55) as the collective-bar- gaining representative for janitors and mechanics em- ployed by Respondent at the National Airlines terminal at John F. Kennedy International Airport, New York, New York, unless and until District 55 is certified by the Board as such representative. (b) Requiring its janitors and mechanics at that facility to join District 55 as a condition of employment. (c) Assisting District 55 in obtaining signed member- ship applications. (d) Designating District 55 stewards. (e) Giving effect to any collective-bargaining agree- ment with District 55 as to janitors and maintenance me- chanics employed by Respondent at the National Air- lines terminal at J.F.K. Airport. (f) Failing and refusing to recognize and bargain col- lectively with Local 32B-32J, Service Employees Inter- national Union, AFL-CIO (herein called Local 32), as 7 In he event no exceptions are filed as provided hb Sec 1)2 4h of the Rules and Regulations ofr the National Labor Relations Board. he find- ings, conclusions. and recommended Order herein shall. a pros ided in Sec 102 48 of the Rules and Regulalions, he adopted h) the Board aind become i i rndings, conclusions, and Order. and all ojhlcctlirls thereli shall be deemed saived for ,all purposes the exclusive collective-bargaining representative of all janitors employed by Respondent at the National Air- lines terminal at J.F.K. Airport. 2. Take the following affirmative action which is nec- essary to effectuate the purposes of the Act: (a) Offer all janitors who were employed by Triangle Maintenance Co., at the National Airlines terminal at J.F.K. Airport on November 30, 1978, employment as janitors at that facility or if such positions no longer exist, to substantially equivalent positions at other loca- tions of Respondent at the airport, or place them on a preferential hiring list, without prejudice to their senority rights or other rights and privileges, replacing if neces- sary any janitors employed at the National Airlines ter- minal who were not employed there on November 30, 1978, by Triangle Maintenance and make each employee to whom such an offer is to be made whole for all losses, with interest thereon, as prov ided for in the section above entitled, "The Remedy." (b) Reimburse all janitors and mechanics employed by Respondent at National Airlines terminal at J.F.K. Air- port for all dues and other monyes deducted from their wages pursuant to the union-security provision of the contract between District 55 and Respondent, with inter- est thereon as provided for in the section above entitled, "The Remedy." (c) Recognize and bargain collectively with Local 32 as the exclusive collective-bargaining representative of the janitors in Respondent's employ at the National Air- lines terminal at J.F.K. Airport. (d) Notify, by letters to their respective home address- es upon being furnished with them by the Regional Di- rector for Region 29, all janitors and mechanics em- ployed by Triangle Maintenance as of November 30, 1978, at the National Airlines terminal at J.F.K. Airport, and who are not now employed there that Respondent does not require that janitors or mechanics employed by it at that location must join District 55 as a condition of employment. (e) Preserve and, upon request, make available to the Board or its agents for examination and copying. all pay- roll records. social security records, timecards, personnel records and reports, dues deduction records, bargaining minutes, correspondence, and all other records necessary to insure compliance with the provisions of paragraph 2. (a), (b), (c), and (d) above. (f) Post at its premises at National Airlines terminal at J.F.K. Airport, copies of the attached notice, marked "Appendix." ' Copies of this Notice, on forms provided by the Regional Director for Region 29, shall be signed by a representative of Respondent, and shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are usually posted. Reasonable steps shall be In the excnt that this Order is ent;forced h a Judgmtlll ttof !r Utred States Court of Appeals, the ords i tihe Notlce readitg "'TPoted h Order of the National I abor Relationls tIoardI shall reatd "I'rsted 'ursa- ant i a Jludgrlenlt of the Urnilted Slte, Courl of Appteal, rilfoircrg ill] Order of the Naltorial I ahor Relatlirons Boardi 677 DECISIONS OF NATIONAL LABOR RELATIONS BOARD taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. I-T IS UOR IHlR OR)I REtI) that the allegations of the complaint herein that Respondent violated Section 8(a)(1) and (3) of the Act by refusing to hire the 13 me- chanics formally employed by Triangle Maintenance; or Section 8(a)(5) by refusing to honor the request by Local 54, Service Employees International Union, AFL-CIO to bargain collectively with it as the representative of these mechanics; or Section 8(a)(5) by failing to honor the alleged demand by Local 32B-32J, Service Employ- ees International Union, AFL-CIO to bargain collective- ly for the janitors' unit are dismissed.