W & M Properties of Connecticut, Inc., 162 (2006)

Docket Number:34-CA-9564
 
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W & M Properties of Connecticut, Inc. and Local 30, International Union of Operating Engineers, AFL–CIO. Cases 34–CA–9564 and 34–CA–9668.

September 20, 2006

DECISION AND ORDER

By Members Liebman, Schaumber, and Kirsanow

On July 8, 2002, Administrative Law Judge Eleanor MacDonald issued the attached decision. The Respondent filed exceptions and a supporting 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 brief and has decided to affirm the judge’s rulings, findings,[1] and conclusions and to adopt the recommended Order as modified and set forth in full below.[2]

For the reasons set forth below, we find no merit in the Respondent’s exceptions to procedural and evidentiary rulings made by the judge and to certain of her conclusions of law.

  1. As an initial matter, the Respondent asserts that the judge made several erroneous evidentiary rulings during the hearing, including her approval of the General Counsel’s use of affidavits. The Board has held that a party may use an affidavit to refresh a witness’ recollection, to rehabilitate a witness’ direct examination testimony on cross-examination, or to prove a witness’ prior statements when a witness’ testimony at hearing differs from that witness’ affidavit. See McDonald’s, 214 NLRB 879, 880–881 (1974). Here, all of the General Counsel’s challenged uses of affidavits fit within these categories and, thus, were permissible.3

    The Respondent also contends that the General Counsel improperly used leading questions on direct examination of one of his witnesses. Federal Rule of Evidence 611(c) provides, in pertinent part, that leading questions may be used when “necessary to develop the witness’ testimony.” Accord: Millard Refrigerated Services, 345 NLRB 1143, 1144 (2005). Here, the General Counsel asked his witness, Liam McGoohan, several nonleading questions in an unsuccessful attempt to elicit certain testimony. Thus, it was necessary for the General Counsel to use leading questions to develop McGoohan’s testimony. The judge did not err in overruling the Respondent’s objection.

  2. Citing the judge’s first conclusion of law, the Respondent contends that the judge erred in finding a violation not alleged in the complaint—specifically, that the Respondent violated Section 8(a)(1) by informing an employee that if he accepted a job it would be nonunion. We find no merit in the Respondent’s contention.

    The Respondent neglects to state the judge’s first conclusion of law in full. The judge there concluded that the Respondent violated Section 8(a)(1) “[b]y informing an employee that if he accepted a job it would be non-union, thereby conditioning his employment on refraining from union activities” [emphasis added]. The complaint put the Respondent on relevant notice by alleging as violative of Section 8(a)(1) that “in or about mid-January 2001, Respondent, by Gerritt Blauvelt . . . impliedly threatened employees that employment with Respondent was conditioned upon not engaging in union activities” [emphasis added]. In support of this allegation, employee Perez testified that, approximately “three weeks . . . or maybe a little more” after his December interview—i.e., “in or about mid-January”—Blauvelt told him that a job with the Respondent would be a nonunion job because the owners did not want the Union. In other words, Blauvelt impliedly threatened, as alleged, that employment with the Respondent was conditioned upon not engaging in union activities. The judge found that Blauvelt’s statement violated Section 8(a)(1), as alleged, and she simply fleshed out that finding in her Conclusions of Law by repeating the statement through which Blauvelt conveyed the implied threat. The judge did not find an unalleged unfair labor practice. The Respondent has not been deprived of due process.

  3. The Respondent argues that the judge erred in finding that its refusal to hire Liam McGoohan, Stephen Bonos, Richard Stofko, and Henry Cassidy violated Section 8(a)(3) and (1). Specifically, the Respondent argues that the judge erred by failing to articulate any standard for deciding the 8(a)(3) allegations and by failing to apply FES, 331 NLRB 9 (2000), to decide them. We agree with Respondent that the judge did not explicitly state a standard, but we disagree that the applicable standard is that set forth in FES, supra. In our recent decision in Planned Building Services, supra, 347 NLRB 670, we held that the applicable framework for deciding whether a successor employer has violated Section 8(a)(3) by refusing to hire employees of its predecessor to avoid a bargaining obligation is that set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Applying that standard here, as explained below, we affirm the judge’s 8(a)(3) findings.

    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, slip op. at 4.4 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. The employer may show, for example, that it did not hire particular employees because they were not qualified for the available jobs, and that it would not have hired them for that reason even in the absence of its antiunion animus. Id., slip op. at 5.

    The General Counsel sustained his burden under the above-stated standard. The Respondent failed to hire McGoohan, Bonos, Stofko, and Cassidy, all employees of its predecessor, TrizecHahn Corporation. Direct evidence establishes an antiunion motivation. Blauvelt told Perez that a job with the Respondent would not be a union job and that the Respondent’s owners did not want a union.5 Also, when Morra told Blauvelt that TrizecHahn employees belonged to the Union, Blauvelt replied that it did not matter because they would have to be nonunion or they would not be hired.

    The Respondent claims that it did not hire the alleged discriminatees because they were unqualified, as chiefly demonstrated by the Respondent’s view that First Stamford Place was in unsatisfactory shape. Based on her detailed analysis of the record, the judge found that the Respondent’s stated reasons for failing to hire the employees were pretextual. For the reasons stated by the judge, we agree. Accordingly, the Respondent failed to rebut the General Counsel’s prima facie case. Thus, we adopt the judge’s finding that the Respondent violated Section 8(a)(3) and (1) by failing to hire McGoohan, Bonos, Stofko, and Cassidy.

  4. The Respondent excepts to the judge’s conclusion that it violated Section 8(a)(5) and (1) by refusing to recognize and bargain with the Union and by unilaterally changing terms and conditions of employment without notice to and bargaining with the Union. The Respondent’s exception on this point, however, depends solely on the merits of its contention that the judge erred in finding a violation of Section 8(a)(3). As we have rejected the Respondent’s 8(a)(3) defense, we also reject the Respondent’s 8(a)(5) exception based thereon.6

    ORDER

    The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, W & M Properties of Connecticut, Inc., Stamford, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

  5. Cease and desist from

    (a) Conditioning employment of its employees on their refraining from activities in support of Local 30, International Union of Operating Engineers, AFL–CIO (Local 30).

    (b) Interrogating employees concerning their membership in Local 30.

    (c) Refusing to hire employees of its predecessor because of their membership in Local 30 and to avoid an obligation to bargain with Local 30.

    (d) Refusing to recognize and bargain with Local 30 as the exclusive collective-bargaining representative of its employees in the following appropriate unit:

    All full-time and regular part-time journeymen and apprentice stationary engineers, maintenance mechanics, and utility workers employed at First Stamford Place, but excluding office clerical employees, guards, professional employees and supervisors as defined in the Act.

    (e) Unilaterally changing wages, hours, and other terms and conditions of employment of the employees in the above-described unit without first giving notice to and bargaining with Local 30.

    (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed them by Section 7 of the Act.

  6. Take the following affirmative action necessary to effectuate the policies of the Act.

    (a) Recognize and, on request, bargain with Local 30 as the exclusive representative of its employees in the unit set forth above concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.

    (b) At the request of Local 30, rescind any departures from terms and conditions of employment that existed prior to its commencing operations at First Stamford Place, restoring preexisting terms and conditions of employment until it negotiates in good faith with Local 30 to agreement or impasse.

    (c) Make whole the unit employees, in the manner set forth in the remedy section of the judges decision, for losses caused by its failure to apply the terms and conditions of employment that existed prior to its commencing operations at First Stamford Place, subject to its demonstrating in a...

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