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,
AM Property Holding Corp., Maiden 80/90 NY LLC and Media Technology Centers, LLC, a single
employer, a joint employer with Planned Building Services, Inc. and Local 32BJ, Service Employees
International Union.[1]
and United Workers of
AM Property Holding Corp., Maiden 80/90 NY LLC and
August 30, 2007
DECISION AND ORDER
By Chairman Battista and Members
Liebman and Kirsanow
This case arose in the context of Respondent AM Property
Holding Corporation’s[2] (AM)
purchase of an office building at
Shortly after receiving the cleaning contract, PBS recognized
the United Workers of America (UWA) as the bargaining representative of its
employees at
Approximately 1 year later, AM replaced PBS with
Respondent Servco Industries, Inc. (Servco) as the cleaning contractor. At no time relevant to these proceedings did
any of the Respondents recognize Local 32BJ as the bargaining representative of
the employees at
The General Counsel alleges that the Respondents committed numerous violations of the Act in an effort to avoid a bargaining obligation with 32BJ. The judge found that (1) AM and PBS, and subsequently AM and Servco, were joint employers of the building’s maintenance employees; (2) AM and PBS were joint successors of the predecessor cleaning contractor, and AM and Servco were joint successors of AM and PBS; (3) the Respondents violated Section 8(a)(3) and (1) by refusing to hire employees represented by Local 32BJ; (4) the Respondents violated Section 8(a)(5) and (1) by refusing to recognize and bargain with 32BJ; (5) PBS violated Section 8(a)(2) and (1) by recognizing the UWA as the collective-bargaining representative of its employees at 80 Maiden Lane; and (6) the Respondents, as joint employers respectively, were jointly and severally liable for various violations of Section 8(a)(1) and (2) of the Act.[3]
For reasons discussed below, we reverse the judge’s
finding that a joint employer relationship existed between AM and PBS, or
between AM and Servco. We also reverse
the judge’s findings that the Respondents were joint successors as alleged,
that they had an obligation to recognize and bargain with 32BJ, and that they
violated Section 8(a)(5) and (1) by refusing to bargain with that Union. Further, we reverse the judge’s finding that
PBS violated Section 8(a)(2) and (1) by recognizing the UWA at
i. facts
The relevant facts are set forth more fully in the judge’s
decision. On April 25, 2000, AM
purchased
Prior to the sale, maintenance services at the building had been provided by Clean-Right, Witkoff’s in-house cleaning contractor. Witkoff was a signatory to a multi-employer collective-bargaining agreement with Local 32BJ, and the Clean-Right employees were represented by 32BJ pursuant to that agreement. The agreement provided that if the employees were not offered employment upon sale of the building, they were entitled to 6 months of severance pay. AM had determined, prior to the closing, that it would not hire the Clean-Right employees. Consequently, as a condition of the sale, AM agreed to indemnify Witkoff for the cost of severance pay and placed the money in an escrow account.
On the day that AM purchased the building, the Clean-Right
employees were told that the building had been sold, that the new contractor
was bringing in its own employees, and that there were no applications for
them. A number of Clean-Right employees
subsequently sought employment at the building with PBS, and eight employees
were interviewed in May. The employees
were told that there was no available work at that time, but that PBS was in
the process of obtaining other contracts and would contact them when positions
became available. Some time in July, PBS
offered employment to all eight employees; two were offered positions at
On May 11, 2000, PBS received notice from the UWA that the
union had obtained a majority of authorization cards at
On April 23, 2001, almost all of the PBS employees at
On June 14, having heard rumors that PBS had lost the contract, a group of the striking employees entered the building and spoke to AM Night Supervisor Dennis Henry.[6] Henry told the employees that a new company was coming in and that it was bringing its own employees. When employees suggested that Henry could help them get jobs with the new company, he replied that “they don’t want anyone from the strike.” Additionally, AM BuildingManager Jack Constantine told the employees he could not help them because they had made trouble and had not listened when they were told to go back to work.
Servco began cleaning the building the next day. Although Servco brought in many of its own
workers, it provided employment applications to all PBS employees who were not
on strike. Servco Sales Manager Mark Giacoia
told the PBS employees that it was not certain that Servco would hire them, and
that he would have to wait and see how it went with his workers. He also warned employees that they would be
fired on the spot if they talked to the
ii. the alleged joint employer relationships
The Board will find that a joint employer relationship
exists between two or more separate business entities where those entities
“share or codetermine those matters governing the essential terms and
conditions of employment.” Laerco Transportation and Warehouse, 269
NLRB 324, 325 (1984) (citing cases). To
establish this relationship, there must be evidence that one employer
“meaningfully affects matters relating to the employment relationship such as
hiring, firing, discipline, supervision and direction” of the other employer’s
employees.
A. AM and PBS
The judge found that AM and PBS were joint employers
because he found that AM exercised control over the hiring and firing of PBS
employees at
1. Hiring and firing authority
In finding that AM exercised control over the hiring and firing of PBS employees at 80 Maiden Lane, the judge relied on the following: (1) a provision in AM’s contract with PBS that subjected PBS hires to initial approval by AM; (2) AM’s alleged refusal to allow PBS applicant Zoila Gonzalez to work in the building; (3) AM official Jack Constantine’s statements to former Clean-Right employees regarding employment with PBS; (4) Constantine’s statement to PBS employee Jorge Cea that Cea would no longer work in the building; (5) AM’s role in PBS’s hiring of Dennis Henry and in the determination of Henry’s wages and benefits; and (6) AM’s later transfer of Henry to its payroll. Contrary to the judge, we do not find that this evidence establishes that AM exercised control over PBS’s hiring and firing decisions.
First, we find that the contractual provision giving AM the right to approve PBS hires, standing alone, is insufficient to show the existence of a joint employer relationship. In assessing whether a joint employer relationship exists, the Board does not rely merely on the existence of such contractual provisions, but rather looks to the actual practice of the parties. See TLI, 271 NLRB 798, 798–799 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985) (employer’s actual role in supervising and directing employees insufficient to establish joint employer relationship despite provision in lease agreement that employer would maintain “operational control, direction, and supervision” of employees). See also The Goodyear Tire & Rubber Co., 312 NLRB 674, 677 (1993).
Second, we disagree with the judge’s finding that AM
exercised its contractual right of approval by rejecting Zoila Gonzalez as a
PBS employee. The evidence shows that
when Gonzalez first reported for work at
Third, we do not find that
Unlike the judge, we do not find that this evidence
demonstrates that
Fourth, we do not find that
After Cea had been on the job for a few days,
Although
Finally, we affirm the judge’s finding that AM affected
the hire, wages, and benefits of PBS employee Dennis Henry, but we give that
finding little weight. Henry was
employed by AM as a night porter at
Henry was unhappy with the change, particularly the lower salary he received as a PBS employee, and complained to AM official Paul Wasserman. Wasserman assured Henry that his benefits would remain the same as those he had received from AM. As a result of Wasserman’s intervention, PBS increased Henry’s salary and gave him a paid holiday. We agree with the judge that this evidence demonstrates that AM played an integral role in PBS’s hiring of Henry, and that AM significantly influenced Henry’s wages and benefits. As stated above, however, the evidence does not establish that AM played any significant part in the hiring of other PBS employees.
2. Direction of PBS employees
In late July, Henry was transferred back to AM’s payroll, but his position and duties remained the same. The judge concluded that Henry’s continued oversight of PBS employees after having been transferred back to AM’s payroll established that AM was extensively involved in directing the work of PBS employees. We disagree.
The Board has held that evidence of supervision which is “limited and routine” in nature does not support a joint employer finding. See, e.g., G. Wes Limited Co., 309 NLRB 225, 226 (1992). The Board has generally found supervision to be limited and routine where a supervisor’s instructions consist primarily of telling employees what work to perform, or where and when to perform the work, but not how to perform the work. See, e.g., id. at 226; Island Creek Coal Co., 279 NLRB 858, 864 (1986).
Here, we find that Henry’s oversight of PBS employees is of the type that the Board has found to be limited and routine.[8]
Henry’s duties included distributing keys and cleaning supplies to employees at the start of the shift, preparing and signing employee timecards,[9] and ensuring that employees did their work properly. If the work was not properly done, Henry asked employees to do it over. There is no specific evidence, however, that Henry trained employees or instructed them how to perform their tasks.[10] Accordingly, we do not find that Henry’s direction of PBS employees while employed by AM is sufficient to establish a joint employer relationship.[11]
For similar reasons, we reject the judge’s finding that the occasional assignment of work by AM officials to Diana Vasquez, who was employed by PBS as a day matron, is evidence of a joint employment relationship. The record shows that Constantine or another AM employee sometimes asked Vasquez to redo work that was not done properly, or asked her to perform tasks that were not part of her regular duties, such as cleaning a floor that had been recently rented. As with Henry, we find that this oversight was limited and routine, and therefore not indicative of joint employer status.
3. Conclusion
In sum, we find that the totality of the evidence fails to establish that a joint employer relationship existed between AM and PBS. Despite AM’s role with regard to Henry’s hire by PBS and AM’s involvement in setting his terms of employment, we find that evidence, by itself, is insufficient to establish that AM and PBS were joint employers. Compare Bonita Nurseries Inc., 326 NLRB 1164, 1167 (1998) (evidence that single employee performed some payroll and accounting tasks for one employer while employed as a controller for another employer insufficient to establish joint employer relationship where employee did not meaningfully affect matters relating to employment relationship). Unlike Member Liebman, we find nothing here that presents a compelling case for revisiting the Board’s joint employer standard, which has been well-settled law for approximately 20 years. See Airborne Express, 338 NLRB 597 fn. 1 (2002). Accordingly, we reverse the judge’s finding of a joint employer relationship.
B. AM and Servco
The judge concluded that AM and Servco were joint
employers because (1) AM’s contract with Servco provided that AM would
supervise Servco employees; (2) Henry supervised the Servco employees; (3)
1. Direction and supervision
As set forth above, the Board’s inquiry with regard to the direction and supervision of Servco employees is properly focused on the practice of the parties, not the language of the contract.[12] The evidence shows that the direction of Servco employees by Constantine and Henry was similar to their direction of PBS employees as discussed above. The evidence also shows that Servco provided its own onsite supervision, initially by Servco Supervisor Isaac Paredes.[13] Although Paredes was not present on a daily basis, he had the overall responsibility for seeing that the employees’ work was done properly, and had instructed employees that if they had a problem they should go to him, not Henry. In these circumstances, we find that AM’s direction of Servco employees was limited and routine, and therefore not indicative of a joint employment relationship.
2. Hiring of former PBS employees
We also reverse the judge’s finding that Henry’s role in the hiring of former PBS employees demonstrates that AM and Servco are joint employers. When Servco took over the cleaning contract, Henry suggested the names of employees that he felt Servco should retain. Servco then independently interviewed the employees before making any hiring decisions. In these circumstances, we do not find that Henry meaningfully affected Servco’s hiring decisions. See Martiki Coal Corp., 315 NLRB 476, 478 (1994) (employer’s role in providing employment forms to applicants and making recommendations insufficient to establish joint employer relationship).
32BJ argues that AM involved itself in Servco’s hiring process by taking steps to ensure that Servco did not hire the former PBS employees who were on strike at the time that Servco was awarded the cleaning contract. As explained in section I, the record shows that when the striking employees sought applications from Henry and Constantine, they were told that they were ineligible for employment because of their participation in the strike.[14] 32BJ contends that these statements by Constantine and Henry establish that AM was involved in the hiring process and that a joint employer relationship existed. We disagree.
In support of its argument, 32BJ relies on Le Rendezvous Restaurant, 332 NRLB 336 (2000), in which the Board found that a hotel’s involvement in keeping a union work force out of an independently operated restaurant on the hotel’s premises was indicative of joint employer status. We find, however, that Le Rendezvous Restaurant is distinguishable on its facts. In that case, the hotel’s management was actively involved in the restaurant’s hiring of a nonunion work force, and also exercised its authority under an agreement with the restaurant to discipline restaurant employees. Here, there is no evidence that Servco had authorized either Constantine or Henry to make any representations on it behalf, or that Servco had involved them in its hiring process. Further, there is no evidence that AM otherwise affected the terms and conditions of Servco employees. In the absence of such evidence, we find that the statements by Constantine and Henry do not demonstrate the existence of a joint employer relationship.
3. Determination of wage rates
Further, we find no evidence that Henry had an effective
role in determining the wages of Servco employees. On the day that Servco began servicing
4. Other considerations
The General Counsel cites additional evidence, not relied on by the judge, in support of the argument that a joint employer relationship existed between AM and Servco. First, the General Counsel argues that Henry’s role in preparing and signing the timecards of Servco employees demonstrates that AM exercised control over the hours of its employees. We find no merit in this argument, as there is no evidence that Henry had any responsibility for determining employee work hours. Rather, the evidence shows that Henry’s role in this regard was limited to recordkeeping.
The General Counsel also argues that the inclusion of Servco employee Zoila Henry’s name on a flyer that was distributed by AM in December 2001 demonstrates that AM held itself out as the employer of the Servco employees. The flyer, which was distributed to the building’s tenants, stated that “Building Management & Staff Extend Their Warmest Greetings of the Season & Prosperity in the New Year,” and listed the names of the day shift employees and their titles. We reject the General Counsel’s contention that AM’s failure to specifically identify Zoila Henry as a Servco employee demonstrates that AM held itself out as her employer. The flyer did not purport to be a representation of AM employees; rather, it appears to have been the equivalent of a holiday greeting card. Thus, we find no merit in the General Counsel’s argument.
5. Conclusion
We find that AM’s role in overseeing the work of Servco employees, in recommending employees for hire, and in recommending Servco wage rates is insufficient to establish the existence of a joint employer relationship. Accordingly, we reverse the judge and dismiss the allegation that AM and Servco were joint employers.
iii. successorship
The judge found that AM and PBS, as joint employers, were joint successors to Clean-Right because they refused to hire the former Clean-Right employees to avoid a bargaining obligation with 32BJ. The judge further concluded that, as joint successors, the Respondents were obligated to recognize and bargain with 32BJ, and that they violated Section 8(a)(5) and (1) by refusing to honor the bargaining obligation.
As explained in section IV below, we agree with the judge that AM and PBS independently violated Section 8(a)(3) and (1) by refusing to hire the former Clean-Right employees or to consider them for hire. However, we reverse the judge’s findings that AM and PBS were joint successors to Clean-Right, that they had an obligation to bargain with 32BJ, and that they violated Section 8(a)(5) and (1) by refusing to honor their bargaining obligation.
The General Counsel has litigated the 8(a)(5) refusal-to-bargain allegation solely on the theory that AM and PBS, as joint employers, refused to hire the Clean-Right employees because of their support for 32BJ, and therefore were joint successors obligated to recognize and bargain with 32BJ.[15] Because we have found that AM and PBS are not joint employers, we find that the General Counsel has failed to establish that they are joint successors to Clean-Right. AM and PBS therefore did not have a joint obligation to bargain with 32BJ.
We further find that we are precluded from considering whether either AM or PBS individually was a successor to Clean-Right with an obligation to recognize 32BJ because the General Counsel has not litigated a violation based on that theory. Because AM and PBS each took over only a portion of Clean-Right’s business, a key question in determining whether either entity independently may be a successor is whether the employees in that entity’s conveyed portion of the business constituted a separate appropriate bargaining unit. See, e.g., Louis Pappas’ Restaurant, 275 NLRB 1519, 1519–1520 (1985); Stewart Granite Enterprises, 255 NLRB 569, 573 (1981) (and cases cited therein). However, the General Counsel did not allege or establish the appropriateness of the separate units. Consequently, we find that the issue of whether AM and PBS were independent successors to Clean-Right is not now properly before us. See, e.g., Sierra Bullets, LLC, 340 NLRB 242, 243 (2003) (declining to consider theory of violation not litigated because respondent was not on notice that it would have to defend against theory).
The judge also found that AM and Servco, as joint
employers, were joint successors to AM and PBS because Servco continued the
cleaning operation in essentially the same manner, employed some of the former
PBS employees, and refused to hire the striking PBS employees because of their
support for 32BJ. For the reasons
discussed above, we reverse.
Consequently, we also reverse the judge’s findings that AM and Servco
had an obligation to bargain with 32BJ, and that they violated Section 8(a)(5)
and (1) by refusing to recognize or bargain with that
iv. the refusal to hire allegations
A. AM and PBS
Applying the analytical framework set forth by the Board
in
AM has excepted to the judge’s finding on the basis that it did not hire any employees when it purchased 80 Maiden Lane, but rather transferred employees from its other locations to fill the vacant day shift positions. We find no merit in this exception. It is undisputed that the day shift positions became vacant upon AM’s purchase of the building, and that the employees who filled those positions were employed by AM. Whether AM ultimately hired new employees or transferred employees from another building is irrelevant: the question here is whether AM’s failure to hire former Clean-Right employees to the vacant positions was based on an unlawful motive.[17] We agree with the judge that AM refused to consider or hire the former Clean-Right employees because of their support for 32BJ.[18]
AM also argues that the former Clean-Right employees gave up their right to employment in the building and their right to file unfair labor practice charges by arbitrating a claim for severance pay under the collective-bargaining agreement with the Witkoff Group. As mentioned above in section I, the agreement between Witkoff and 32BJ provided that employees would receive severance pay if they were not retained by Witkoff’s successor. A separate clause in the agreement provided for termination pay in the event of a reduction in force. The arbitration upon which AM bases its argument arose as a result of a dispute over whether the Clean-Right employees were entitled to termination pay. The sole issue addressed by the arbitrator was whether the sale of the building resulted in a reduction in force as defined by the collective-bargaining agreement. The arbitrator found in favor of the employees and awarded the termination pay.
Relying on Spielberg Mfg. Co., 112 NLRB 1080 (1955), AM argues that the arbitration award provides an affirmative defense to its refusal to hire the employees. We disagree. The alleged contractual breach—Witkoff’s denial of termination pay—has not been alleged as a violation of the Act. And AM’s refusal to hire the employees was not presented to the arbitrator as a breach of the collective-bargaining agreement—nor could it have been because AM was not a party to the collective-bargaining agreement. Because its refusal to hire the former Clean-Right employees was not before the arbitrator, we reject AM’s arbitration-based defense.
Finally, AM contends that the Clean-Right employees waived
their right to continued employment at
B. Servco
The judge found that Servco violated Section 8(a)(3) and (1) by refusing to hire the striking PBS employees or to consider them for hire. The judge based his finding on (1) his conclusion that Servco departed from its usual hiring practices; (2) the antiunion statements made by Constantine and Dennis Henry to the striking PBS employees; and (3) Servco Manager Giacoia’s threat to fire employees for talking to union representatives. For reasons discussed below, we reverse.
First, we find that the judge’s conclusion that Servco
deviated from its usual hiring practice is not supported by the evidence. Giacoia testified that there was a “mixed
group of employees” who staffed
Based on this testimony, the judge apparently concluded
that Servco typically hired employees for all
of its facilities through its
Second, we find that, in the absence of a joint employer relationship between AM and Servco, there is no basis for attributing to Servco the antiunion statements made by Constantine and Henry to the striking PBS employees. Based on these statements, and on Giacoia’s statement to Servco employees that they would be fired if they talked to union representatives, the judge concluded that it would have been futile for the PBS employees to apply for positions with Servco. There is no evidence, however, that Servco had authorized Constantine or Henry to communicate with the employees on its behalf, or that Servco had done anything to lead the employees to believe that Constantine and Henry were acting as its agents. Consequently, we find that the judge could not properly rely on these statements in finding that it would have been futile for the strikers to apply for positions with Servco.
Third, although we agree with the judge that Giacoia’s statement violated Section 8(a)(1), we find that this statement, by itself, is insufficient to establish that it would have been futile for the PBS strikers to apply for positions with Servco. The statement was made to the nonstriking PBS employees, and there is no evidence that it was disseminated to the strikers. Thus, there is no basis on which to conclude that the strikers failed to apply for jobs because Servco indicated to them that it would have been futile to do so.
We disagree with our colleague that assertions by AM
officials to the strikers that Servco did not want anyone from the strike are
sufficient to excuse their failure to apply.
That the strikers may have acted on what they had been told by
v. pbs’s
recognition of the uwa
We affirm the judge’s findings that PBS violated Section
8(a)(2) and (1) by (a) soliciting authorization cards for the UWA; (b)
requiring employees to authorize the deduction of union dues from their
paychecks; (c) deducting union dues from employee paychecks without their
authorization; and (d) deducting union dues for the UWA after it had disclaimed
interest in representing employees.
However, we reverse his finding that PBS’s recognition of the UWA as the
bargaining representative of the employees at
As discussed above, the judge found that the recognition was unlawful because it occurred at a time when PBS, as a joint successor (with AM) to Clean-Right, had a duty to recognize and bargain with 32BJ. Because we have rejected the judge’s findings that PBS had an obligation to bargain with 32BJ as a joint successor employer, we reverse his finding that PBS’s recognition of the UWA was unlawful because it was obligated to bargain with 32BJ.
The General Counsel also alleged and argued to the judge that the recognition was unlawful because the UWA did not represent an uncoerced majority of employees at the time of recognition. The judge found it unnecessary to reach this argument because of his successorship finding.
The General Counsel has not excepted to the judge’s failure to rule on the alternative argument. PBS, in its brief in support of its exceptions, argues that it recognized the UWA based on a majority of lawfully obtained authorization cards. In his answering brief, the General Counsel argues that the UWA did not represent an uncoerced majority of the bargaining unit at the time of recognition because PBS had unlawfully assisted the UWA in obtaining the authorization cards.
Contrary to our colleague, we find that the issue of whether the UWA represented an uncoerced majority at the time of recognition is not properly before us. The General Counsel failed to raise a timely exception to the judge’s failure to rule on the issue, and the Board’s Rules and Regulations do not permit a party to assert cross-exceptions in an answering brief. American Red Cross Missouri-Illinois Blood Services Region, 347 NLRB No. 33, slip op. at 8 (2006) (finding that issue raised by cross-exception in answering brief was not properly before the Board); Teddi of California, 338 NLRB 1032 (2003) (refusing to consider issue raised in answering brief in the absence of timely exception). Therefore, we dismiss the allegation that PBS’s recognition of the UWA was unlawful.
vii. am’s termination of the contract with pbs
We reverse the judge’s finding that AM’s termination of its contract with PBS violated Section 8(a)(3) and (1) because the violation is contingent upon the existence of a joint employer relationship between the two Respondents. Although the judge found that AM terminated the contract because of the strike by PBS employees, it is well established that an employer who refuses to do business with a subcontractor because of the protected activities of the subcontractor’s employees does not violate the Act. Plumbers Local 447 (Malbaff Landscape Construction) 172 NLRB 128, 129 (1968). Thus, in the absence of a joint employer relationship there is no basis for finding a violation.
We also reverse the judge’s finding that AM violated Section 8(a)(5) and (1) by terminating the contract without first bargaining with 32BJ over the termination, as we have concluded that AM had no such bargaining obligation.
viii. am’s alleged rescission of a job
offer to jorge cea
The judge found that PBS employee Jorge Cea had been
offered a position by AM Building Manager
The credited testimony shows that a few days after Cea
began working at
Some time after this conversation took place,
Although
ix. the
independent 8(a)(1) violations
A.
The judge found the following violations of Section 8(a)(1):
(1) AM official Stanley Cunningham threatened employees that they would lose their jobs if they joined 32BJ.
(2) AM official Terry Donahue interrogated Diana Vasquez about her intention to strike.
(3) Jack Constantine created the impression of surveillance by telling Diana Vasquez that she had been seen talking to a striker; asked Vasquez to let him know if she heard anything about a strike against PBS; and told former PBS employees that he could not help them in obtaining jobs with the new contractor because of their strike activities.
(4) Dennis Henry told PBS employees that they would be taken out of the building if they joined 32BJ, and told former PBS employees that Servco did not want anyone from the strike.[21]
(5) Mark Giacoia told prospective Servco employees that they would be discharged immediately if they spoke to representatives of 32BJ.
We affirm the violations for reasons set forth by the
judge. However, we reverse the judge’s
findings that AM and PBS, or AM and Servco, respectively, were jointly and
severally liable for the violations as joint employers. Instead, we find that the violations by
Cunningham,
B.
The General Counsel has excepted to the judge’s failure to make specific findings as to some of the complaint allegations, findings that would follow logically from the facts and the violations he did find. Because the issues were alleged and fully litigated, and the violations are directly associated with violations found by the judge, we grant the General Counsel’s exceptions and find these additional violations of Section 8(a)(1):
(1) PBS supervisor Al Hernandez threatened employees with
job loss and indicated that support for 32BJ would be futile by telling employees
that it would be difficult to organize
(2) Terry Donohue indicated that support for 32BJ would be
futile by telling employees that the
(3) Dennis Henry unlawfully assisted the UWA by directing employees to attend UWA meetings and by escorting them to the meetings.[24]
(4) Dennis Henry and Gilbert Sanchez were present at or near the place where employees met with union representatives.[25]
C.
We reverse the judge’s finding that PBS Supervisor Al Hernandez engaged in unlawful surveillance of employee union activities in July 2000, as the surveillance was neither alleged in the complaint nor litigated during the hearing. Rather, the judge’s finding was based solely on the content of a memo written by Hernandez and included in a personnel file that was introduced into evidence by 32BJ. The memo is dated July 19 and states, “Last night these three new workers were speaking with . . . 32B&J People . . . Will Monitor.” There was no testimony regarding the memo or the circumstances surrounding it, nor was it offered for the purpose of establishing unlawful surveillance. In these circumstances, it cannot be said that the issue was fully litigated; accordingly, we reverse. See Desert Aggregates, 340 NLRB 289, 292–293 (2003) (issue was not fully litigated where facts giving rise to issue emerged incidentally during hearing).
x. job offers
to former clean-right employees
The General Counsel has excepted to the judge’s failure to address a complaint allegation that the employment offers made by PBS to former Clean-Right employees for positions at other buildings were contingent upon the discriminatees accepting an unlawful bargaining relationship between PBS and the UWA.[26] The General Counsel argues that in PBS III, supra, the Board found that PBS’s recognition of the UWA as the bargaining representative of the employees at those buildings[27] violated Section 8(a)(2) and (1), and that any job offers contingent upon accepting working conditions pursuant to the bargaining relationship are unlawful. We agree, and grant the General Counsel’s exception.
The record shows that PBS sent each discriminatee a letter offering employment at a particular worksite. The letter also stated that “[t]he actual terms [of employment] are spelled out in the Collective Bargaining Agreement between Planned Building Services, Inc., and the United Workers of America.”[28] In addition to the letter, the discriminatees received a separate attachment of “a Summary of Wages and Benefits governing [the] initial terms and conditions of employment.”
We agree with the General Counsel that this offer makes clear to the discriminatees that if they were to accept the position, their working conditions would be subject to the terms of a bargaining agreement that we have previously found, in PBS III, to have been unlawful.[29] Consequently, we find that PBS has violated Section 8(a)(2) and (1). See Fairmont Foods Co., 245 NLRB 915, 923 (1979) (finding violation where employer conditioned employment on acceptance of an unlawfully recognized union).
xi. the alleged conflict of interest
PBS argues that counsel for the General Counsel Lauren Esposito’s participation in this case was improper because of her prior employment with a law firm that has represented 32BJ, and that it was entitled to a hearing on this issue. PBS also argues that Esposito’s participation amounts to prosecutorial misconduct and that this misconduct is an affirmative defense to the alleged unfair labor practices. We find no merit in these arguments.
PBS initially raised the conflict of interest argument with the Regional Director, who investigated the matter and determined that Esposito did not do any work on behalf of 32BJ while employed by the law firm. The Regional Director also sought the advice of the Agency’s Ethics Officer and the Division of Operations Management, who concurred that Esposito’s participation in the case did not pose a conflict. The Regional Director informed PBS of her findings, and PBS moved for a separate hearing on the issue prior to the trial.
The motion went before Judge Biblowitz, who found no merit in the conflict of interest allegation. Judge Biblowitz found that under the applicable statute, an employee of the Agency may not participate in a matter involving a person with whom he or she has a “covered relationship.” See 5 C.F.R. Section 2635.502. A covered relationship includes a person for whom the employee has, within the last year, served as an attorney or consultant. Based on representations by the Regional Director, Judge Biblowitz found that Esposito did not have a covered relationship with 32BJ and that there was no conflict of interest with regard to her participation in this case. He further found that, even if a covered relationship existed, there was no real or apparent conflict that would prevent Esposito from participating in the case. Thus, he denied the motion.
PBS again raised the conflict of interest argument with the trial judge, who, like Judge Biblowitz, found no conflict of interest in Esposito’s participation in this case. The judge also struck PBS’s affirmative defense of prosecutorial misconduct, finding that it was not a valid defense to the complaint allegations.
For reasons set forth above, we affirm that Esposito’s participation in this case posed no conflict of interest, and that PBS’s contention that it was entitled to a separate hearing on the issue is without merit. PBS has presented no evidence throughout any of these proceedings to support its position that Esposito’s participation in the case violated any government regulation. Indeed, in its motion for a hearing, PBS admitted that it could not “submit complete evidence of a violation” at that time, but rather asserted that was “the purpose of a trial.” Given this admitted lack of evidence, we reject PBS’s assertion that it was improperly denied a hearing on this issue.
We also affirm the judge’s finding that PBS’s asserted defense of prosecutorial misconduct is not a valid defense to the allegations in this case. Notwithstanding, we agree with PBS’s contention that the judge’s striking of the defense deprives PBS of an opportunity to preserve the issue for appeal. Thus, while we reject the Respondent's defense on its merits, we grant PBS’s exception alleging that the defense was improperly stricken by the judge. See, e.g., Purolator Products, 272 NLRB No. 161 fn. 1 (1984).
Amended Remedy
Having found that AM, PBS, and Servco have engaged in various unfair labor practices, we shall order that they cease and desist from such acts and take certain affirmative action designed to effectuate the policies of the Act.
We have found that AM and PBS, as separate business entities, have violated Section 8(a)(3) and (1) by refusing to hire the former Clean-Right employees named in the Order below because of their support for Local 32BJ.[30] Accordingly, we will order that AM and PBS instate those employees, respectively, and make them whole for the discrimination against them. Whatever backpay is found to be due the employees shall be calculated in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
Because PBS ceased providing maintenance services at
We have also found that PBS violated Section 8(a)(2) and (1) by continuing to deduct union dues from employees’ paychecks after the UWA had disclaimed interest in representing those employees. We shall therefore order PBS to reimburse the employees for any dues or fees that were unlawfully deducted.
Finally, for reasons set forth in the judge’s decision, we shall issue a broad order against PBS in this case. We shall also order a corporatewide cease-and-desist Order and notice posting. This is the fourth in a series of cases in which the Board has found that PBS has violated Section 8(a)(2) and (1) by unlawfully soliciting union authorization cards.[31] Additionally, the violations found to have been committed by PBS in this ca