Extract
Computer Associates International, 285 (1997)
Computer Associates International, Inc., and Cushman & Wakefield of Long Island, Inc. and Local 30, International Union of Operating Engineers, AFL-CIO. Case 29-CA-17315
August 19, 1997DECISION AND ORDERBY CHAIRMAN GOULD AND MEMBERS FOX AND HIGGINSOn March 6, 1996, Administrative Law Judge Howard Edelman issued the attached decision. The Respondent, Computer Associates International, Inc., and the General Counsel each filed exceptions and supporting briefs as well as briefs in answer to the others' exceptions, and the Respondent, Cushman & Wakefield of Long Island, Inc., filed a brief in answer to both the General Counsel's and Respondent Computer Associates' exceptions.The National Labor Relations Board has considered the decision in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,1and conclusions only to the extent consistent with this Decision and Order.Based on credited evidence, the judge found that Respondent Computer Associates International, Inc. (Computer) violated Section 8(a)(1) of the Act through various interrogations, promises, threats, and warnings related to the union membership and/or activities of union-represented operating engineers working at its facility. We adopt these findings for the reasons stated by the judge.2 The judge also found, based on his interpretation of the theory set out in Esmark, Inc.,3 that Respondent Computer violated Section 8(a)(3) and (1) by causing the discharge of nine union-represented operating engineers. We do not agree with the judge's application of Esmark to this case, and we reverse his finding of violation made on that basis and remand the proceeding to the judge for further action as explained below.4During 1991, Respondent Computer, a software manufacturer, built a facility in Islandia, New York. In September 1991, Computer entered into a subcontract with Respondent Cushman & Wakefield (Cushman), a real estate management company, whereby Cushman agreed to supply Computer with building engineers to perform certain startup and maintenance duties at the Islandia site. The contract was for an initial period of 18 months; it was renewable month to month thereafter, and terminable on 30 days' written notice. Cushman obtained engineers represented by Local 30, International Union of Operating Engineers, AFL-CIO (the Union) to staff Computer's facility. The engineers were apparently the only Islandia-based employees represented by a union. On March 31, 1993, 5 days after the Union lost a representation election among Computer's facilities department employees5 and, without prior notice, Respondent Computer terminated the contract with Cushman, resulting in the engineers' immediate discharge from employment. Respondent Computer thereupon directly hired a replacement complement of engineers, none of whom belonged to the Union.The General Counsel alleged, inter alia, that by terminating the engineers' employment, Respondents Computer and Cushman both violated Section 8(a)(3). The General Counsel presented evidence assertedly showing that Computer, together with Cushman, hired the engineers and codetermined essential terms and conditions of employment, thereby establishing a joint-employer relationship warranting their mutual liability for the unlawful termination.Following the close of the hear...See the full content of this document
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