NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive 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.

Downtown Hartford YMCA and Service Employees International Union, 32BJ District 531.1 Cases 34–CA–10011, 34–CA–10107, and 34–CA–10142

April 30, 2007

DECISION AND ORDER

By Chairman Battista and Members Liebman and Walsh

On June 19, 2003, Administrative Law Judge Michael A. Marcionese issued the attached decision. The Respondent filed exceptions,2 the General Counsel filed cross-exceptions,3 the Respondent and the General Counsel filed answering briefs, and the Respondent filed a reply brief.

The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,4 and conclusions and to adopt the recommended Order as modified below.

Applying FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83 (3d Cir. 2002), the judge found that the Respondent violated Section 8(a)(3) and (1) by discriminatorily refusing to hire 12 employees of its predecessor. We agree with the judge’s unfair labor practice finding, but we do not rely on FES.

In Planned Building Services, 347 NLRB No. 64 (2006), which issued after the judge’s decision, the Board held that Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), provides the appropriate framework for deciding whether a successor employer violated Section 8(a)(3) by refusing to hire employees of its predecessor to avoid a bargaining obligation. To establish a violation of Section 8(a)(3) under Wright Line where a refusal to hire is alleged in the successorship context, the General Counsel has the burden of showing that the employer failed to hire employees of its predecessor and was motivated by antiunion animus. Planned Building Services, supra, 347 NLRB No. 64, slip op. at 4.5 Once the General Counsel has made this showing, the burden shifts to the employer to demonstrate that it would not have hired the predecessor’s employees even in the absence of its unlawful motive. Id., slip op. at 4–5.

Here, the judge’s findings and conclusions fully satisfy the analytical objectives of Wright Line. Thus, the judge found, and we agree, that the General Counsel established that the Respondent’s decision not to hire its predecessor’s employees was motivated by antiunion animus. We further agree with the judge that the Respondent failed to meet its burden to establish that it would not have hired those employees absent its hostility toward the Union. Accordingly, we affirm the judge’s conclusion that the Respondent refused to hire 12 employees of its predecessor in violation of Section 8(a)(3) and (1) of the Act.6

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Respondent, Downtown Hartford YMCA, Hartford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 1(e).

“(e) Making statements to employees implying that they will not be hired because of their affiliation with or representation by Service Employees International Union, 32BJ District 531 (the Union).”

2. Substitute the following for paragraph 2(g).

“(g) Make whole unit employees for any loss of wages and other benefits resulting from the Respondent’s unilateral changes in the preexisting terms and conditions of employment, subject to the Respondent’s demonstrating in a compliance hearing that, had it lawfully bargained with the Union, it would have, at some identifiable time, lawfully imposed or reached agreement on less favorable terms than those that existed prior to its takeover of Pritchard Industries’ operations at its facility. Backpay shall be computed in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), and Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9^th Cir. 1981), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). The Respondent shall also make all delinquent employee benefit fund contributions, including any additional amounts due the funds in accordance with Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979).”

3. Substitute the attached notice for that of the administrative law judge.

Dated, Washington, D.C. April 30, 2007

Robert J. Battista, Chairman

Wilma B. Liebman, Member

Dennis P. Walsh, Member

(seal) National Labor Relations Board

APPENDIX

Notice To Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

federal law gives you the right to

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities.

We will not promulgate or enforce discriminatory or overbroad rules prohibiting employees from engaging in union solicitation or distribution during nonworktimes and in nonwork areas of our facility.

We will not threaten employees with being sent home if they engage in union or other protected concerted activities.

We will not deny union representatives access to employees working at our facility.

We will not threaten to or cause the arrest of union representatives in the presence of employees.

We will not make statements to employees implying that they will not be hired because of their affiliation with or representation by Service Employees International Union, 32BJ District 531 (the Union).

We will not refuse to hire any employees of Pritchard Industries, who previously worked at our facility and who were represented by the Union, in order to avoid having to recognize and bargain with the Union.

We will not refuse to recognize and bargain in good faith with the Union as the exclusive collective-bargaining representative of our employees in the following appropriate unit:

All housekeepers, custodians and laundry attendants, employed by us at our Hartford, Connecticut facility, excluding guards, professional employees and supervisors as defined in the Act.

We will not establish wages, hours, or other terms and conditions of employment of our unit employees without first giving the Union prior notice and an opportunity to bargain about such subjects.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights as set forth above.

We will rescind the discriminatory and overly broad no-solicitation/distribution rule announced on or about January 14, 2002.

We will, with within 14 days from the date of the Board’s Order, offer the following employees immediate instatement to the positions to which they applied or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed.

Adrian Caicedo Kathleen Nelson

Reese Dinkins Gabriella Ortiz

Fabiano Filigrana Santiago Restrepo

Carmen Garcia Gustavo Sanchez

Jose Gavalo Ivan Sanchez

Eleazar Mendoza Jose Tobon

We will make the above-named employees whole for any loss of earnings and other benefits resulting from our discriminatory refusal to hire them, less any net interim earnings, plus interest.

We will, on request, bargain with the Union as the exclusive representative of the employees in the above-described unit concerning terms and conditions of employment, and, if an understanding is reached, embody the understanding in a signed agreement.

We will, on request of the Union, rescind any departures from the terms and conditions of employment that existed immediately prior to our takeover of Pritchard Industries’ operations at our facility and restore, retroactively, the preexisting terms and conditions of employment until we negotiate in good faith with the Union to agreement or impasse.

We will make our unit employees whole for any loss of wages and other benefits resulting from our unilateral changes in the preexisting terms and conditions of employment, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with the Union, we would have, at some identifiable time, lawfully imposed or reached agreement on less favorable terms than those that existed prior to our takeover of Pritchard Industries’ operations at our facility.

We will make whole the Union’s representative, Rebecca Maran, for any costs incurred as a result of our having caused her arrest on January 21, 2002.

Downtown Hartford ymca

Darryl Hale, Esq. and Quesiyah Ali, Esq., for the General Counsel.

Felix J. Springer, Esq. and Stacy Babson-Smith, Esq. (Day, Berry & Howard), of Hartford, Connecticut, for the Respondent.

Thomas Meikeljohn, Esq. (Livingston, Adler, Pulda, Meikeljohn & Kelly), of Hartford, Connecticut, for the Charging Party.

DECISION

Statement of the Case

Michael A. Marcionese, Administrative Law Judge. I heard this case in Hartford, Connecticut, on August 19–23 and September 17–20, 2002.[1] The charges in Cases 34–CA–10011, 34–CA–10107, and 34–CA–10142 were filed by Service Employees International Union, 32BJ District 531, AFL–CIO (the Union) on January 23,[2] April 23, and June 4, respectively, and the amended consolidated complaint issued July 29.[3] The complaint, as further amended at the hearing, alleges that the Respondent, Downtown Hartford YMCA, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) in connection with its January decision to terminate its contract with Pritchard Industries, Inc. and convert to an in-house housekeeping, laundry, and janitorial operation.[4] On August 12, the Respondent filed its answer to the amended consolidated complaint denying the unfair labor practice allegations and asserting several affirmative defenses.

The complaint specifically alleges that the Respondent violated Section 8(a)(1), on various dates in January and early February, by restricting the Union’s access to Pritchard’s employees who were working at its facility; by implementing discriminatory no-solicitation and distribution rules affecting the same Pritchard employees; by threatening to and causing the arrest of a union representative in the presence of the employees; by threatening employees with being sent home if they communicated with the Union’s representative or engaged in union solicitation or distribution at the Respondent’s facility’; and by making statements to Pritchard employees indicating that they would not be hired by the Respondent because of their union membership and because the Union had filed the charge in Case 34–CA–10011. The complaint further alleges that the Respondent violated Section 8(a)(1) and (3) by failing and refusing to hire 12-named Pritchard employees because of their membership in, support for, and concerted activities on behalf of the Union. Finally, the complaint alleges that the Respondent, as a successor to Pritchard, has violated Section 8(a)(1) and (5) of the Act, since February 4, by failing and refusing to recognize the Union as the 9(a) representative of its housekeeping, laundry, and janitorial staff and by unilaterally establishing the rates of pay, benefits, hours of work, and other terms and conditions of employment for those employees. The complaint does not allege that the Respondent’s decision to take over the housekeeping, laundry, and janitorial functions at its facility was unlawfully motivated or that the Respondent had any obligation under the Act to bargain with the Union regarding this decision. The complaint also does not allege that Pritchard Industries engaged in any unfair labor practices in connection with its termination of operations at the Respondent’s facility.

On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following

Findings of Fact

i. jurisdiction

The Respondent, a branch of a nonprofit corporation, provides various services and programs to individuals in the greater Hartford, Connecticut community at its facility at 160 Jewell Street in Hartford, Connecticut. There is no dispute that the Respondent, in the conduct of its operations at the Hartford branch, annually derives gross revenues valued in excess of $250,000 and purchases and receives goods valued in excess of $5000 directly from points outside the State of Connecticut. The Respondent has essentially admitted and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Based on the Parties’ stipulation at the hearing, I find that the Union is a labor organization within the meaning of Section 2(5) of the Act.

ii. alleged unfair labor practices

A. The Respondent’s Decision to Take Over
Housekeeping, Janitorial and Laundry Services

The Respondent provides a number of services to the community at its downtown Hartford branch, including physical fitness programs, a day care center, and a residence. The facility consists of an 11-story building with 127 rooms for residents on the 7th through 11th floors. The fitness facility, including a pool, locker rooms, and gymnasiums, is located on the first two floors. The day care center is located on the first floor. The Respondent also has a cafeteria that is open to the general public for most of the day. Most of the Respondent’s offices are on the third floor.

Until about 1996, the Respondent performed its cleaning, janitorial, and laundry services in-house. In about 1996, the Respondent hired Servus Corporation, a building maintenance company, to handle these functions. Servus, in turn, hired Pritchard, a general cleaning contractor, to provide the housekeepers, night custodians, and day porters (janitors) to clean the building, and the laundry attendants to clean the towels and linens used in the fitness center and residences. The Respondent continued to employ its own staff of skilled maintenance technicians to maintain the mechanical operations in the building. In January 2001, the Respondent replaced Servus with another building management company, O, R & L, which retained Pritchard as the cleaning contractor. In June 2001, still not satisfied with the services provided by O, R & L, the Respondent hired James O’Hair, who had experience managing hotels, to be the full-time building superintendent with overall responsibility for the maintenance of the facility, including the work of Pritchard’s employees. Shortly after he was hired, O’Hair terminated the services of O, R & L and brought in his own staff of mechanics to handle the in-house maintenance functions, including new Supervisor Ronald Gagnon. He retained Pritchard to do the cleaning, janitorial, and laundry work.

Pritchard has been a union contractor since it was first hired to work at the Respondent’s downtown branch. It has been signatory to successive collective-bargaining agreements negotiated by the Union with an association of cleaning contractors in Hartford County. The contract in effect at the time of this dispute was effective through May 31, 2003. In late 2001 early 2002, Pritchard employed a staff of 14 full- and part-time employees at the Respondent’s Hartford facility, including two employees (Reese Dinkins and Kathleen Nelson) who had worked at the facility since before Pritchard was hired. Tony Bertini, employed by Pritchard as its area manager, was responsible for Pritchard’s account with the Respondent from approximately January 2001 until the relationship ended in January 2002. The Respondent’s account was one of only two for which Bertini was responsible during this period. Although not assigned to work onsite, Bertini had almost daily contact with O’Hair after O’Hair was hired and frequently visited the Respondent’s facility to check on the work of Pritchard’s employees.

Correspondence in evidence from 1999 and 2000 shows that the Respondent, directly and through its building managers, had continuously sought cost reductions from Pritchard that resulted in the reduction of the amount of services provided by Pritchard’s employees. At the same time, the Respondent continuously complained about the quality of the cleaning provided by Pritchard’s staff. In early 2001, after O, R & L was hired, Pritchard was forced to remove onsite supervision from the facility to meet O, R & L’s new bid specifications. This tension between the Respondent’s desire for a spotlessly clean facility and its unwillingness to pay Pritchard a fee which Pritchard considered sufficient to cover the cost of satisfying the Respondent’s demands is what ultimately led to the Respondent’s termination of Pritchard’s services.

O’Hair testified that, after he took over as building superintendent, he worked with Bertini to develop an ideal set of cleaning specifications to achieve the level of service the Respondent desired. In the process of doing this, O’Hair would frequently advise Bertini of deficiencies he saw in the work being done by Pritchard’s employees. There is no dispute that Bertini informed O’Hair that the lack of onsite supervision was a significant factor in the problems O’Hair complained about. Also during the first several months of O’Hair’s tenure, Pritchard sought some assurance, in the form of a written contract, that the Respondent was going to retain its services.[5] The discussions between the Respondent and Pritchard reached a head on or about September 27, 2001, when Pritchard’s vice president, Steven Sadler, sent O’Hair a letter demanding a fee increase of $860/month, effective October 1, 2001, to cover increased payroll-related expenses and increased operating expenses. Attached to the letter was a financial summary purporting to show that Pritchard was losing money attempting to satisfy the Respondent’s demands while waiting for approval by the Respondent of Pritchard’s most recent bid proposal. Sadler pointed out, in his letter, that the specifications under which it was currently operating did not include adequate supervision or onsite management. Sadler advised O’Hair that, if the Respondent did not agree to this increase, Prichard would exercise its right to terminate the existing relationship on 30 days notice.

O’Hair discussed Sadler’s demand with Andre Kennard, the Respondent’s executive director.[6] According to O’Hair, the Respondent agreed to pay the additional $860/month because of his conclusion that the Respondent would not have been able to replace Pritchard’s staff and maintain an acceptable level of cleaning in 30 days. The new monthly cost to the Respondent was about $29,000. When O’Hair communicated the Respondent’s agreement to Pritchard, he and Sadler agreed that Bertini would work with O’Hair on a new set of specifications to ensure that the Respondent got the level of service it desired. On October 19, 2001, Bertini and Pritchard’s estimator, David Berthold, met with O’Hair and presented a cost summary with the revised specifications. These specifications included provision for the return of onsite supervision. The total cost to Respondent proposed by Pritchard was more than $37,000/month, the bulk of which was payroll costs for Pritchard’s unionized work force.[7]

O’Hair concluded, after reviewing Pritchard’s proposal and discussing with Bertini the performance specifications, that the Respondent could do the work cheaper itself. O’Hair made this recommendation to Kennard who instructed him to come up with a proposal to take the cleaning, janitorial, and laundry services in-house. O’Hair continued to work with Bertini to “resolve their differences,” i.e., between the Respondent’s expectations of what was attainable and the reality of what could be accomplished under the current contractual arrangements. As part of this process, O’Hair and Rachel Soucy, the Respondent’s housing director, conducted a room-by-room inspection of the residential section of the facility with Bertini. During that inspection, many mechanical problems unrelated to the work of Pritchard’s employees were uncovered. The inspection also disclosed many issues regarding the cleanliness of the residential rooms and bathroom facilities that Bertini agreed to address. Bertini assigned a special crew to correct the areas noted on inspection at Pritchard’s expense.

While ostensibly working with Bertini to resolve the Respondent’s problems with the level of service it was getting from Pritchard, O’Hair developed his proposal to take these services in-house. O’Hair admitted that he used input from Bertini to develop the job descriptions and work schedules for the staff he intended to hire upon termination of Pritchard’s contract. According to O’Hair, Bertini was well aware that he was doing this at the time.

Sadler testified that, on December 13, he and Berthold visited O’Hair at the Respondent’s facility to check on the status of Pritchard’s proposal to continue performing services for the Respondent. According to Sadler, at this meeting O’Hair asked Sadler what would happen if the Respondent took over the cleaning, janitorial, and laundry operations. Sadler replied that the Respondent might not achieve the cost savings it was looking for because the employees were represented by the Union and the Union was committed to the employees and to maintaining a presence in the building. Sadler recalled that O’Hair said the Union was not an issue, that it had been checked out with lawyers, that this was not an issue he was concerned about, he was concerned with getting the building cleaned and the problems fixed. During this meeting, Sadler offered to have Pritchard put a supervisor in the building at no expense to the Respondent because of his belief that the problems O’Hair complained about were due to the lack of supervision. O’Hair responded that it “wouldn’t hurt” if Pritchard brought in a supervisor, but it wouldn’t guarantee them a contract.

Shortly after this meeting, O’Hair gave Pritchard its 30 days notice that it had decided to terminate the laundry service provided by Pritchard. By letter dated December 20, 2001, Sadler advised the Respondent that the termination of the laundry service would reduce the Respondent’s monthly fee by about $4300.[8] On December 27, 2001, O’Hair notified Sadler, in writing, that the Respondent was terminating Pritchard’s housekeeping and janitorial services effective February 1. O’Hair also advised Sadler that the Respondent would be hiring employees directly to perform these services. There is no evidence in the record that Pritchard ever communicated to the Union or the employees working at the Respondent’s facility that the Respondent was terminating its services and hiring employees to do the work. In fact, the evidence in the record establishes that the Union and most of the employees did not find out about the Respondent’s decision until a help-wanted advertisement appeared in the Hartford newspaper on Sunday, January 6, seeking applications for the very jobs held by Pritchard’s employees.

B. The Union Reacts to the Respondent’s Decision

Upon learning of the Respondent’s decision to end its relationship with Pritchard, the Union’s district supervisor, Kurt Westby, assigned Sal Abate, a union delegate who is no longer employed by the Union, to call the Respondent and find out what was going to happen to the work being performed by Pritchard’s employees. Abate testified that he received this assignment on January 7 and called the Respondent that day. After learning from the receptionist that O’Hair was responsible for the cleaning services at the facility, Abate left him a voicemail message, identifying himself as a union representative and asking that O’Hair call to discuss the situation with Pritchard. There is no dispute that O’Hair returned Abate’s call that day, leaving a message for Abate who was not in, and that the two ultimately had a telephone conversation the next day, January 8.

According to Abate, he opened the conversation by introducing himself as a union delegate and telling O’Hair that he was calling to find out what was going on with the Respondent’s contract for cleaning services and the employees currently working there. O’Hair replied that the Respondent had made a decision to keep the cleaning services in-house. Abate recalled that O’Hair said that in the 8 years he had been with the Respondent, he had seen a transition to in-house services from outside contractors and that other departments that had made the change were running smoothly. Abate then suggested that they set up a meeting where he and the workers could present a copy of the collective-bargaining agreement for the Respondent to sign and whatever pension information O’Hair need to become a union signatory. O’Hair replied that there was an application process he had set up and that if any of the workers wanted to apply they could pick up an application at the front desk.[9] In response to this, Abate suggested that he and O’Hair set up a date and time when the Pritchard employees could be interviewed to ensure a fair and orderly process. Abate recalled, with asserted clarity, that O’Hair said he was “not interested in meeting with a group of union workers.”

Abate testified that O’Hair also mentioned, in the course of the conversation, that the Respondent had received an “overwhelming” response to the ad. He further recalled O’Hair saying that, although the Pritchard employees could apply, he did not think he would be hiring many of them because he was not happy with the work they were doing. When Abate responded that was a management problem, that the employees were only following what their supervisors told them to do, O’Hair cut him off, saying, “[D]on’t use the ‘bad management’ argument,” that he had seen managers come and go and things never got any better. Abate reported the substance of this conversation to his boss, Westby, and, as will be discussed, with the Pritchard employees. He had no further conversations with O’Hair and only limited involvement in this matter thereafter.

O’Hair prefaced his testimony regarding this conversation with testimony regarding conversations he allegedly had with Sadler and Bertini in the nature of a warning, or “heads-up” about the Union. O’Hair was vague as to when these conversations occurred but claimed to have had one with Sadler and at least one with Bertini before he received Abate’s message.[10] The gist of these conversations is that Sadler and Bertini warned O’Hair that the Union would go to any lengths to preserve its position, including picketing at the homes of corporate officers, and twisting the words used by management officials to serve the Union’s purpose. According to O’Hair, he had these warnings in mind when he spoke to Abate and exercised caution in the words he used and tried to get off the phone as quickly as possible.

O’Hair recalled that Abate introduced himself and “immediately” asked if O’Hair was going to consider hiring all of Pritchard’s employees. O’Hair said no, that he would consider each person individually. According to O’Hair, Abate next wanted to set up a group interview to discuss hiring these employees because they had been working there for so long. O’Hair admittedly interrupted Abate and told him that he had a procedure in place and that he was not going to hire anybody through the Union. He told Abate he was interested in individuals, not groups of people. O’Hair testified that he told Abate the procedure was for individuals to fill out an application and leave it at the front desk and that he would call people that were qualified for interviews. O’Hair further recalled Abate mentioning group interviews again with O’Hair responding, “absolutely not, I’m not going to give a group interview.” O’Hair specifically denied telling Abate that he was not going to hire any union or Pritchard employees. O’Hair also did not remember saying anything about the work performance of Pritchard’s employees.

Considering the testimony and the demeanor of the witnesses, in the context of the other evidence in the record, I find that Abate’s recollection of events is more credible, to the extent there are any discrepancies. Abate, although employed by another Union, no longer has any interest in the outcome of this proceeding. Moreover, although the Respondent’s counsel endeavored to show inconsistencies between his testimony and prior affidavit, I find the testimony remarkably consistent, considering the passage of time. In contrast, O’Hair, testifying as one of the last witnesses in the hearing after having listened to the testimony of all the other witnesses as the Respondent’s designated representative under the sequestration ruling, had ample time to conform his responses to the evidence that preceded it. There was no affidavit or other written documentation of this conversation, contemporaneous with the event, to compare his testimony to. In addition, Bertini and Sadler did not fully corroborate O’Hair’s testimony regarding the “heads-up” he received from them. Finally, Abate’s testimony that O’Hair said he was not interested in meeting with a group of union workers is not much different from O’Hair’s admission that he told Abate that he was not going to hire anybody through the Union and would not hold group interviews. Whether these statements indicate union animus will be discussed later.

The Union held at least one meeting with Pritchard’s employees after this telephone conversation.[11] Abate testified that the purpose of the meeting he described was to let the employees know how O’Hair felt and what position they were in. Maran testified that the Union held these meetings to, initially, inform the employees of the fact that Pritchard had lost the contract and learn what they already knew about the situation, and later, to have the employees fill out applications so they could be submitted in accordance with O’Hair’s description of the process to Abate. There is no dispute that the Respondent did not interfere with the Union’s ability to meet with the employees on January 7 and 8.

Abate testified that, at the meeting he described, he relayed to the employees what O’Hair told him. When asked, on cross-examination, what he told the employees regarding his conversation with O’Hair, Abate testified that he told them that O’Hair was not interested in hiring them. Maran testified initially on cross-examination that Abate did not tell the employees about his conversation with O’Hair “in detail” and denied that he told the employees that O’Hair was not interested in hiring them. Later, also during cross-examination, she recalled that Abate did say this at some point, but claimed that she could not recall if he said it at a meeting of employees or in some other context. In any event, according to Maran, Abate’s statement was not translated for the Spanish-speaking employees in those words. Maran testified that the message that was conveyed to the employees at these meetings was that, if they wanted to keep their jobs, they would have to file an application. In fact, at the January 8 meeting, the employees were given applications to fill out and plans were made to present the applications to O’Hair as a group the next day.

The overall credibility of Maran’s testimony is affected by the same consideration as that of O’Hair. Maran also was present throughout the testimony of General Counsel’s witnesses as the designated representative under the sequestration ruling. She thus had ample time and opportunity to conform her answers to the many variations of these meetings and other incidents that had been described by the employee witnesses.[12] I also found her efforts to avoid conceding that Abate might have mischaracterized his conversation with O’Hair to be somewhat disingenuous. I find, as with the remainder of his testimony, that Abate was credible and candid in acknowledging that he essentially provided the employees with his interpretation of what O’Hair told him, i.e., that he wasn’t interested in hiring them. Whether this influenced how employees perceived their later encounters with O’Hair will be discussed shortly.

It was also at these meetings, on January 7 or 8, that the Union learned that some employees, such as Nelson, had already submitted applications to the Respondent and that one employee, Alberto (a/k/a Luis) Diaz had already been offered a supervisory position by the Respondent.

Abate and Maran testified that they returned to the Respondent’s facility on January 9 in order to implement the strategy agreed to at the employee meetings of presenting the employees’ applications as a group. Abate referred to this, in his testimony and pretrial affidavit, as a “march on the boss,” a tactic often utilized by unions as a way of demonstrating employee solidarity. After meeting a group of five or six employees in the cafeteria, they proceeded to O’Hair’s office, which is on the second floor, across from the basketball court. O’Hair was not in his office. Maran and Abate testified that they waited for some time, either 10 or 45 minutes, respectively, and left when O’Hair did not appear. Maran returned to the facility the next day, this time alone, to try again to present the applications that had been collected from the employees.[13] This time, O’Hair was present. Maran and several employees testified about this incident for the General Counsel.[14] There were almost as many variations as there were witnesses. O’Hair was the only witness to testify about this incident for the Respondent. The Respondent suggests, in its brief, that it is not necessary to make any credibility resolutions regarding the “march on the boss” in order to reach a decision in this case. The Respondent argues, alternatively, that the testimony of the General Counsel’s witnesses should not be credited because their recollection of the event was colored by “psychological pre-conditioning” by the Union.

Maran testified that she had the applications in a purple folder and that she gave the folder to Carmen Garcia as they were walking toward O’Hair’s office. She recalled that Garcia in turn gave the folder to Tobon, who was the Union’s steward at this facility. Maran recalled further that, as the group approached O’Hair’s office, they were met by a man whom the employees told her was O’Hair. According to Maran, Garcia and Tobon were at the front of the group. She recalled that Tobon spoke first, in Spanish, and then Garcia said, in English, “[W]e’re here as a group, we want to give you our applications, we really need our jobs here.” Maran testified that O’Hair walked past Tobon and Garcia and approached her. At this point, he was standing in the middle of the group. Maran recalled O’Hair saying to her, “I already talked to your boss. I don’t want to deal with the Union.[15] I don’t want to take these applications. I don’t want a bunch of applications from the Union. I don’t want to hire a bunch of uUnion workers because I don’t want a union in this building.”[16] Maran testified that she said thank you and then, as O’Hair was walking away, asked him if she could translate what he just said for the workers. Maran then translated O’Hair’s comments into Spanish. The group then walked toward the elevators to go downstairs to the lobby. Maran testified that as they were waiting for the elevator, O’Hair called her over. She went to O’Hair with Tobon. O’Hair said that if the Union was going to have meetings like this, they should talk to Pritchard, that it would be different if they were employees of the Respondent. Maran responded that the Union had already communicated with Pritchard and had no problem with that. At that point, according to Maran, the group went back down to the lobby and gave the folder with the applications to the receptionist, Carmen Colon, asking her for a receipt. The receipt lists the eight employees whose applications were in the folder.[17]

Tobon testified that he introduced himself to O’Hair as the Union’s steward and said that he was there to give O’Hair the applications on behalf of himself and his coworkers. According to Tobon, he was speaking Spanish with Carmen Garcia translating.[18] Tobon testified that O’Hair responded, in English, “[D]on’t give them to me, give them to the receptionist on the first floor.” Tobon testified further, consistent with Maran, that O’Hair called him and Maran back as they were leaving. Tobon’s recollection of what O’Hair said to him and Maran is that he “did not want us because we were with the Union.” Although O’Hair said this in English, Tobon testified that he understood what was said and, to demonstrate his understanding, he repeated the same statement in English on the witness stand. Finally, Tobon testified that Maran translated O’Hair’s statement into Spanish for the other employees.

Garcia’s recollection was significantly different. She recalled that she was the one with the applications in hand and that she served as the employees’ spokesmen, without the aid of a translator. She initially testified that Tobon played no role during this incident. After being asked three times by the General Counsel whether Tobon said anything, Garcia finally said that, if he did say anything, she could not now recall it. Garcia contradicted herself by initially claiming that she could not recall whether Tobon said anything because everybody was speaking at once only to testify later that only one person spoke to O’Hair. According to Garcia, O’Hair’s response to whoever it was that tried to give him the applications was that he was not going to hire them because they had a union. On cross-examination, Garcia did corroborate Maran’s and Tobon’s testimony that O’Hair called Maran back as they waited for the elevator. She testified that she heard O’Hair tell Maran: “Remember, I don’t want a union in the building.”

Ortiz, testifying through a translator, recalled that O’Hair refused to accept the applications from Maran, saying he did not want them because he did not want the Union, that he had problems with the Union. Ortiz testified that she understood a little of what O’Hair was saying, but she acknowledged that others, including Garcia and Tobon, translated parts she didn’t understand. Nelson, who is English-speaking, recalled Maran trying to give O’Hair the applications and O’Hair refusing them, saying that he was not going to hire a bunch of union employees. Nelson also recalled O’Hair telling Maran to take the applications downstairs to Carmen and he would get them from her and would interview the employees individually. Nelson testified that she did not hear O’Hair say he did not want the Union in the building and that she did not hear him say he was not going to give group interviews. Although Nelson acknowledged attending meetings with union staff members before this incident, she denied being told anything about Abate’s phone conversation with O’Hair and denied hearing anyone say that O’Hair did not want to hire them before she heard O’Hair say this. Caicedo testified on direct exam that he was present for both attempts to hand-deliver the applications to O’Hair. He recalled that, on the second attempt, when the group encountered O’Hair, O’Hair refused to accept the applications, saying “[W]e worked for the Union, that he didn’t like that and that we weren’t going to work there anymore.” Caicedo, while acknowledging that he does not speak English very well, testified that he was able to understand what O’Hair was saying. On cross-examination, Caicedo acknowledged attending meetings with Maran and other union representatives before this incident and recalled being told that the employees were going to lose their jobs, that the Respondent was going to get them out of there. Caicedo also testified that he didn’t need to be told this by anyone because it was obvious to him, when he saw that the Respondent was advertising their jobs in the paper, that the Respondent did not want them. This was an eminently logical conclusion for anyone to have drawn.[19]

O’Hair testified that he was confronted by a group of people within three steps of leaving his office. He recognized only a couple of them. He recalled that several people started talking at the same time, most of them in Spanish. He focused on Maran because she introduced herself and was speaking English. O’Hair had not met Maran before. According to O’Hair, Maran was holding a blue folder, which she tried to give him as she spoke. After introducing herself, Maran said she wanted to present him with applications of a group of people the Union represents. O’Hair recalled putting up his hand, in a “stop” gesture, saying he had just talked to her boss yesterday, at which point Maran corrected him by saying that the man he spoke to was not her boss. O’Hair then said that he had already told the gentleman from the Union that he spoke to that he would not accept applications from the Union. O’Hair continued by telling Maran that he would accept applications from individuals, that everybody had the same right as anyone coming off the street to apply for a job. He told Maran that the applications had to be left at the front desk. O’Hair then turned to walk away. As he did so, he saw Maran turn toward the group that was with her and start to speak in Spanish. O’Hair then asked Maran if she was telling them what he said and she said or gestured that she was. According to O’Hair, he eventually received the blue folder containing several applications from the front desk. O’Hair specifically denied saying to Maran and the group that he wasn’t going to hire union employees or a “bunch of union employees.” O’Hair also claimed that, as with his conversation with Abate, he was mindful of Sadler’s and Bertini’s warnings about the Union’s tactics and was intent on extricating himself from the situation as quickly as possible.

While there are almost as many variations as there were witnesses regarding the “march on the boss,” there is no dispute that O’Hair rebuffed the Union’s attempt to submit applications for employment in the Respondent’s new in-house janitorial and housekeeping department on behalf of the employees as a group, and that O’Hair told Maran that he would not accept applications from the Union. While it is also undisputed that O’Hair told Maran and the employees who were with her that they could submit the applications at the front desk, and that he would interview employees individually, the evidence in the record establishes that the Respondent had already filled almost all of the positions in its new housekeeping and janitorial department. What is in dispute is whether O’Hair explicitly stated that he did not want to hire the employees because of their union affiliation, as Maran and several employees claimed and O’Hair denied.

The variations in the witnesses’ testimony regarding this incident is understandable when one considers the passage of time and the effect of individuals’ background and perspective on how they view any given situation. I do not subscribe to the Respondent’s theory of “psychological pre-conditioning.” The employees who were there with their union representative did not need to be told by anyone that the Respondent was not interested in hiring them. As Caicedo said, it would have been obvious to anyone seeing the ad in the previous Sunday’s newspaper that the Respondent had no interest in hiring the employees currently performing the housekeeping and janitorial work at the YMCA. If it had such an interest, one would expect that the Respondent would have let these employees know about the availability of the new jobs directly. Similarly, the employees did not have to be told by anyone that O’Hair did not want to hire them because of their affiliation with the Union because his admitted gestures and statement, i.e., refusing to accept applications proffered by their union repre-sentative while saying he would not accept applications from the Union, would reasonably lead them to that conclusion. Although I am not convinced that O’Hair said, in heac verba, “I do not want to hire a bunch of union employees,” I find that he clearly conveyed this impression to Maran and the employees by his words and gestures. His response to the “march on the boss” must also be viewed in the context of the Respondent’s efforts, to be detailed infra, to fill as many positions as possible before the ad even appeared in the paper.

I also find, based on Maran’s testimony, corroborated by Garcia, that O’Hair told Maran that he didn’t want “a” or “the” Union in the building. The fact that Maran included this statement in a leaflet prepared shortly after the incident rebuts any suggestion that she fabricated the testimony to support the allegations in the complaint. Although Garcia’s testimony was not always reliable, her recollection as to this statement appeared to be genuine. Finally, the statement, which was not specifically denied by O’Hair, is consistent with the subsequent attempts of the Respondent, and O’Hair in particular, to keep the Union, as represented by Maran, “out of the building.” As will be discussed in the next section of this decision, these attempts were in marked contrast to the Union’s previous ease of access to the facility.

The complaint specifically alleges that the Respondent violated Section 8(a)(1) of the Act during this incident by O’Hair informing employees that they would not be hired because of their union membership. Because of the conflicting evidence as to what O’Hair said, I find that the General Counsel has not met his burden of proof and shall recommend dismissal of the complaint as to this allegation. I will, however, consider the evidence regarding O’Hair’s statements and conduct during the march on the boss, and the inferences to be drawn from such evidence, on the issue of animus.

C. The Respondent’s Alleged Interference with
the Union’s Access to the Employees

Although Pritchard’s collective-bargaining agreement with the Union did not contain a specific provision regarding union access at the worksite, the testimony of Bertini, Abate, Maran, and others establishes that there was a practice of allowing the Union to meet with employees at their work locations during nonworking times. Under this practice, the Union merely had to inform Pritchard that it was going to be meeting with the employees. There was no requirement of notification to the owner of the facility, such as the Respondent. It is also apparent that the Union had regularly met with Pritchard’s employees in the Respondent’s cafeteria, which admittedly is open to the public during the day when the Respondent’s facilities are open. It is also undisputed that the cafeteria and adjacent lounge area were open to employees working inside the facility, including Pritchard employees, even after it closed for the day, around 2:30 p.m. There is also evidence that, in response to complaints from O’Hair about Pritchard employees seen lounging in Pritchard’s office in the basement, Bertini told the employees that they were supposed to take their breaks in the cafeteria. As previously noted, the Respondent did not interfere with the Union’s meetings with the employees on January 7 and 8, in the conference room off the lobby, when the Union first informed the employees of the Respondent’s plans to terminate its contract with Pritchard or with its meetings with employees in the cafeteria before the two attempts to deliver their applications to O’Hair.

The Respondent’s attitude toward the Union’s access changed significantly after the January 10 “march on the boss.” Thus, O’Hair made a point of telling Maran that the Union was not welcome in the building and that, if she was going to have meetings like this in the future, to let Pritchard know. According to Maran, O’Hair said it would be different if they were employees of the Respondent. Since the Union had already been following this practice, Maran told O’Hair she did not have a problem with that. The next time that Maran attempted to meet with employees in the building, on January 14, she encountered her first resistance from the Respondent.

On January 14, Maran went to the Respondent’s facility to meet with the day-shift employees. She arrived at the facility around noon and met the three housekeepers, Garcia, Nelson, and Ortiz, in the cafeteria. Garcia, Nelson, and Ortiz were on their lunchbreak. Maran and the three employees went from the cafeteria to the lobby and began leafleting near the main entrance. The leaflets were intended to inform the public, including members of the YMCA arriving to use the facilities, about the Respondent’s termination of its contract with Pritchard and the impact on the employees represented by the Union. After about 5–10 minutes, O’Hair approached the group and told them they could not leaflet in the building. He told them if they wanted to hand out leaflets, they had to go outside. Because it was very cold outside, the employees chose to stop leafleting and return to the cafeteria. Maran left the building.[20] There is no evidence that Maran and the three employees blocked ingress or egress to the facility or were otherwise disruptive.

Maran returned to the Respondent’s facility that evening, around 9:30–10 p.m. to meet with the night-shift employees. She approached the employee at the front desk, who was identified for the record as Rick Oney.[21] Oney told her that she could not be in the building and could not meet with the employees. According to Maran, he also told her that if any employees did speak to her in the building, they would be thrown out. Maran testified that she waited in the lobby for Reese Dinkins and Eleazar Mendoza to arrive for work.[22] While she was waiting, Dinkins arrived for work and greeted her. As she approached him, Maran heard Oney tell Dinkins that he shouldn’t talk to her. Maran asked Dinkins to meet her outside and left the building. After speaking to Dinkins, she asked him to tell steward Jose Tobon to meet her outside and Dinkins said he would. Dinkins then went back into the building to punch in. Maran testified that, as she was leaving the building, she saw Hartford police arrive. She told them she was leaving and nothing further occurred that night. Maran specifically denied trying to re-enter the building the same night.

Dinkins substantially corroborated Maran’s testimony. According to Dinkins, he saw Maran standing outside the building as he arrived for work. Dinkins testified that Maran accompanied him into the building. Dinkins was going to talk to Maran after he punched in. Dinkins testified that Oney stopped him and said if Dinkins spoke to Maran on Y property that Oney would have to take his keys and send him home and that, if Maran was on Y property, Oney would have her arrested. Dinkins testified further that before this incident, Maran would come into the building to talk to the night crew “all the time” without incident. In fact, Dinkins had attended a meeting in the conference room with Maran and other union staff earlier in January and had filled out his application there.

Oney was called to testify by the General Counsel as a hostile witness under Rule 611(c) of the Federal Rules of Evidence. Oney identified himself as the “front desk clerk.” He was still working for the Respondent at the time of the hearing and claimed to have retained Respondent’s counsel as his lawyer before the hearing. Oney worked from 3:30–11 p.m. in January and reported to Rachel Soucy, the Respondent’s residence director. He described his duties as answering phones, taking in cash for the various departments, such as payments for rooms, renting out rooms, and handling security in the lobby. The Respondent also had a security guard, Willie Sampson, working in the evenings. According to Oney, after 9 p.m., he and Sampson were the only employees of the Respondent in the building along with the Pritchard night crew. Oney conceded that while he can consult with his manager by phone, he is authorized to handle certain security functions, including calling police if someone not authorized to be in the building refuses to leave upon request.

Oney testified that O’Hair had spoken to him on January 14 about the Union’s leafleting in the lobby. He recalled O’Hair telling him that the Union had posted leaflets in the building and blocked people entering and leaving the building.[23] O’Hair told Oney that union representatives were not allowed in the building because of what happened earlier that day. Oney at first testified that he saw Maran attempt to enter the building a couple times that night but later conceded that he might have confused January 14 with a later date. He did recall Maran approaching the front desk and asking him to page somebody. Oney testified that he did not page the person she requested, instead telling her that she wasn’t supposed to be in the building. When Maran started to say something, Oney cut her off, repeating that she was not supposed to be in the building. Oney told her this was because of something that happened earlier that day. He admittedly told Maran that if she did not leave the building, he would call the police. Maran then left.

Oney testified further that Dinkins came to the front desk after Maran left and Maran came back into the building, apparently to speak to Dinkins. According to Oney, he told Maran again that she had to leave and he told Dinkins to be careful not to hand out leaflets, that he could get in trouble. Oney claimed that he said this to Dinkins because the Respondent had a policy prohibiting the handing out of flyers without approval. When pressed as to the origin of this policy, Oney claimed he learned of it by “word of mouth.” The Respondent did not offer any evidence that such a policy in fact existed before the union issue arose in January. Oney testified further that he also told Dinkins that if he wanted to speak to Maran, he had to go outside. On further questioning, Oney conceded that he may have said that Dinkins could be sent home if he leafleted. This is consistent with what Oney had stated previously in an affidavit, i.e., that he told Dinkins that he could not hand out or post leaflets or Oney would have to send him home. Oney testified that he did call the police the night of the Dinkins incident but he recalled that no employees were around when the police arrived.

Oney did not impress me as a candid or reliable witness. It was apparent that he endeavored to shade his answers in the light most favorable to his employer. Moreover, despite the apparent conflict of interest, Oney claimed to have voluntarily chosen to retain legal counsel from the same attorneys representing his employer.[24] I find that Oney’s earlier statement in his affidavit is a more reliable account of what he said to Dinkins on January 14. Although I have previously noted some reservations about Maran’s testimony, I credit her with regard to this incident because she was corroborated by Dinkins, whom I found to be very credible with respect to this incident. Accordingly, I find that, on January 14, Oney did tell Dinkins that he would be sent home if he spoke to Maran on the Respondent’s property or handed out leaflets in support of the Union.

Maran testified that she returned to the YMCA the next day, January 15, around 5 p.m., to leaflet. She was joined on this occasion by Tobon and Santiago Restrepo, both of whom worked on the night crew and were off-duty at the time. This time, Maran and the employees remained outside the building, handing out flyers on the sidewalk leading to the main entrance. After about 15 minutes, the police arrived and told them they had to move because they were still on the Respondent’s property. Maran, Tobon, and Restrepo complied with this request and continued leafleting from the public sidewalk. Tobon and Restrepo corroborated Maran’s testimony regarding this incident.

On January 21, Maran again went to the Respondent’s facility to meet with the Pritchard employees. She first met with the day-shift employees around noontime, in the cafeteria. The three housekeepers and Tobon were present. Maran testified that, while they were meeting, two Hartford police officers arrived. One approached Maran and told her that she could not be there because it was private property. When she identified herself as the employees’ union representative, they left. Garcia described the incident in essentially the same way as Maran. Ortiz, Tobon, and Nelson recalled that when the police came, they took Maran with them. It is not clear whether they meant to say that Maran was arrested, which she was not at that time, or that they recalled Maran leaving with the policeman to explain her reason for being in the cafeteria at that time. In any event, there is no dispute that the police did arrive and question Maran in the presence of employees during a meeting that was being held at the same time and in the same place that the Union had historically conducted such meetings. There is also no dispute that the Respondent’s cafeteria is open to the public at that time of day.

Maran returned to the Respondent’s facility on the night of January 21, to meet with the night crew, sometime between 8 and 8:30 p.m. According to Maran, she saw Oney at the front desk and he appeared to wave her toward the cafeteria where the Pritchard employees were already gathered. She identified Tobon, Fabiano Filigrana, and Aldemar Sanchez as being present.[25] As she was talking to the employees in the back of the cafeteria, she saw two policemen enter from the front of the cafeteria. They told Maran to come with them. According to Maran, as she accompanied the officers, the employees followed. When they got to the lobby, she explained to the officers who she was and why she was there. She also described the incident earlier that day when the officers left after she gave the same explanation. At that point, according to Maran, the police officers went to the front desk and had a conversation with Oney. During this conversation, she saw Oney make a telephone call and saw one of the officers speaking on the phone. After this call, she heard one officer say to the other, “[W]e’ll have to arrest her.” The police officers then approached Maran, who had been observing this while seated in the lobby, and made the arrest. According to Maran, Tobon and the other employees were present when this occurred. Maran testified that, upon being released by the police after being booked, she returned to the facility and asked Oney to call Tobon, who was working, to let him know that she was alright.

Tobon, while professing not to remember dates and details very well, did recall being at a meeting with Maran in the cafeteria at night with other Pritchard employees during which the Respondent’s security guard and then the police arrived and told them they could not have a meeting there. He recalled seeing the police take Maran’s car keys from her and saw her leave with them. He did not know where they took her. Filigrana had a very poor memory regarding meetings with the Union but he did recall being at a meeting in the cafeteria with the lady from the Union when the security guard and the police came and told them to leave. Filigrana did not describe seeing Maran arrested. He recalled that the group simply agreed to leave the cafeteria and hold the meeting at the Union’s office. Santiago Restrepo, who was working that night, testified that he was working and could not go to the meeting when it started. He did go to the cafeteria later but the meeting was over. He testified that Tobon told him that Maran had been arrested.[26]

Oney also testified about this incident. According to Oney, he saw Maran walk past him toward the cafeteria without stopping. Oney asked the security guard, Sampson, to go get her. Sampson returned to the front desk with Maran. Oney told her, again, that she was not supposed to be on the Respondent’s property. According to Oney, Maran said that she had a right to be there, that the employees had a right to talk to her and she returned to the cafeteria. At that point, Oney called O’Hair, told him that the Union was back on the property and asked O’Hair if anything had been worked out. Oney testified that O’Hair said nothing had been worked out, that the Union was still not supposed to be in the building. When Oney asked O’Hair what he should do, O’Hair asked Oney what would he normally do if someone was on the property who wasn’t supposed to be and refused a request to leave. Oney told O’Hair that if somebody had already been warned not to be on the property, he would have them arrested. According to Oney, O’Hair then said, “[D]o what you would normally do.” Oney then called the police and had Maran arrested.

Oney described a scene similar to that described by Maran, i.e., the police brought Maran out to the lobby, spoke to her separately and then spoke to him, asking Oney what he wanted them to do. Oney admitted telling the police to arrest Maran. Oney also corroborated Maran’s testimony that Maran returned to the facility later that night and asked him to page one of the Pritchard employees. Oney disputed Maran’s testimony that there were employees in the lobby during Maran’s arrest. It is undisputed that Maran was not handcuffed but walked out on her own power with the police.

To the extent there is any discrepancy between the testimony of Maran and the employee witnesses and that of Oney, I credit the General Counsel’s witnesses. Tobon and Filigrana recalled seeing both a security guard and the police come into the cafeteria, which is consistent with Oney’s testimony that he first sent Sampson into the cafeteria to get Maran and, when she wouldn’t l