TCB Systems, Inc., (2010)

TCB Systems, Inc. and Service Employees International Union, Local 32BJ, successor to Service Employees International Union, Local 11.[1] Case 12–CA–25299

August 27, 2010

DECISION AND ORDER

By Chairman Liebman and Members Schaumber and Pearce

On October 16, 2009, Administrative Law Judge George Carson II issued the attached decision. The General Counsel filed exceptions, a supporting brief, an answering brief, and a reply brief.[2] The Respondent filed cross-exceptions, a supporting brief, an answering brief, and 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, cross-exceptions, and briefs, and has decided to affirm the judge’s rulings, findings,[3] and conclusions only to the extent consistent with this Decision and Order.

The judge, among other things, dismissed allegations that the Respondent (a) violated Section 8(a)(1) of the Act when Supervisor Jamie Munoz threatened not to hire employees because of their union activities and support, and (b) violated Section 8(a)(3) and (1) of the Act when it refused to hire employees Amparo Correa, Armando Pons, and Rosario Lopez because of their union activities. As set forth below, we reverse the judge’s dismissal of these allegations.[4]

Background and Material Facts

The Respondent provides building cleaning and maintenance services in and around Miami, Florida. In February 2007,[5] the Respondent obtained a contract to provide janitorial services at Nova Southeastern University (Nova). Previously, the janitorial services at Nova were performed by UNICCO Service Company (UNICCO). UNICCO had recognized the Union as its employees’ bargaining representative in October 2006, following a year-long organizing drive of UNICCO’s employees at Nova (which involved rallies, demonstrations, and two short strikes). At the time the Respondent obtained the Nova contract, the Union and UNICCO were negotiating for a collective-bargaining agreement, but had not reached agreement.

On February 7, Union President Rob Schuler sent a letter to the Respondent’s district manager, Eduardo Maestri, stating that the Union was making an “unconditional application” for employment on behalf of the UNICCO employees. Attached to the letter were petitions signed by UNICCO employees stating they desired to continue working at Nova.

In early February, the Respondent’s vice president of operations, Victor Sierra, obtained permission to walk through the Nova buildings that the Respondent would be cleaning. Sierra testified that as he walked through the various buildings, he took notes of the “areas that needed improvement.”

On February 10, the Respondent held a job fair on the Nova campus. Many UNICCO employees, including the alleged discriminatees, attended the job fair, completed job applications, and interviewed with the Respondent. After the job fair, Sierra met with UNICCO Custodial Manager Efrain Montoya to review the information submitted by the applicants.

Sierra testified that he used an assignment sheet provided by Montoya to both confirm the accuracy of the job assignments listed on the employees’ applications, and determine which applicants worked in the problem areas noted in his inspection of the buildings. Sierra added that although his notes from his inspection of the buildings were “key” in determining which applicants not to hire, he discarded his notes after making his hiring decisions, and consequently could not recall any of the specific reasons for deciding not to hire the alleged discriminatees.

After deciding whom to hire, Sierra provided Montoya with 80-90 applications. Montoya contacted these employees, offered them employment, and instructed them to report for work on February 19.

The Respondent retained at least 76 UNICCO employees in its initial complement of 146, as well as all of UNICCO’s supervisors.[6] UNICCO employees Amparo Correa, Armando Pons, and Rosario Lopez were not among those hired. All three were among the most outspoken union supporters during the Union’s efforts to organize the UNICCO employees.

In a February 21 letter to the Respondent, Shuler asserted the Union’s majority status and requested that the Respondent recognize and bargain with the Union. The Respondent did not reply to Schuler’s letter.

On March 7, Respondent Supervisor Jamie Munoz called employee Victor Correa (Correa), a UNICCO employee retained by the Respondent, into Munoz’s office to discuss Correa’s job performance. During this conversation, Correa asked Munoz why “that group of employees was fired on that day . . . in February 2007,” referring to the day of the changeover from UNICCO to the Respondent. Correa asked “if they were fired due to discipline reasons, or if it was because of attendance . . . or if it was for like conduct, or if it was due to another reason.” Munoz replied that “it was due to the fact that they showed a strong support for the Union.” Munoz continued that Correa “was lucky for being chosen to work for [the Respondent] because . . . the University . . . [the] former company, and the current company, and the supervisors knew that [Correa] was involved in the Union.” Munoz added that “it can happen to [you] the same as it happened to Mrs. Amparo Correa, Mr. Armando Pons . . . and Mrs. Rosario Lopez.”[7]

The judge found that Munoz’s comments to Correa did not violate Section 8(a)(1), and that the Respondent’s failure to hire Amparo Correa, Pons, and Lopez did not violate Section 8(a)(3) and (1) of the Act. Contrary to the judge, we find that Munoz’s statements and the refusal to hire the three employees violated the Act as alleged.

Analysis

1. Munoz’s Statement

   In dismissing this 8(a)(1) allegation, the judge reasoned that while the complaint alleged that Munoz threatened not to hire employees, Munoz’s statement responded to a question about employees who were fired. In addition, as the Respondent had not fired any of the UNICCO employees, and as there was no evidence that Munoz was privy to the Respondent’s hiring decisions, the judge found that Munoz’s comments were an “expression of opinion” from a low-level supervisor and, as such, did not violate Section 8(a)(1).

   Contrary to the judge and our dissenting colleague, we find that Munoz’s response to Correa contained an unlawful threat not to hire union supporters. The context of the conversation makes clear that Correa’s question referred to the Respondent’s failure to hire certain UNICCO employees. Specifically, Correa referenced February 2007, when the Respondent succeeded UNICCO and made its hiring decisions.[8] More importantly, Munoz’s response left no doubt that he understood that Correa was referring to the Respondent’s decision not to hire certain UNICCO employees. He answered that Correa “was lucky for being chosen to work for [the Respondent]” despite his union activity.[9] Further, by specifically mentioning Amparo Correa, Pons, and Lopez, who, in contrast, were not hired by the Respondent, Munoz further demonstrated that he understood the inquiry was about the Respondent’s decision not to hire certain UNICCO employees.[10]

   The judge erred in characterizing the comment as no more than an “expression of personal opinion by a low-level supervisor.” Munoz made the comment to Correa during an official meeting in his office, phrased his message as a definitive statement of fact, and added that the Respondent knew about Correa’s union activity. His comment did not include any suggestion that he was merely offering the personal opinion of an uninformed supervisor.[11] Accordingly, Munoz’s statement was coercive, notwithstanding his status as a low-level supervisor. See Pickering & Co., 254 NLRB 1060 (1981) (holding that coercive remarks by low echelon supervisors tend to interfere with or restrain employee rights in the same way as such conduct by other supervisors or managers).

   Based on this analysis, we reverse the judge and find that Munoz’s statement violated Section 8(a)(1) of the Act as alleged.

2. Refusals to Hire

   The General Counsel contends that the judge erroneously dismissed allegations that the Respondent unlawfully refused to hire Amparo Correa, Pons, and Lopez. We find merit in the General Counsel’s exceptions.

   In dismissing these allegations, the judge found that there was no evidence of antiunion animus on the part of the Respondent, and therefore the General Counsel failed to sustain his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Contrary to the judge, we find that Munoz’s statements (to Victor Correa) that Amparo Correa, Pons, and Lopez were not working for the Respondent because of their “strong support” for the Union, and that Victor Correa was lucky to have been chosen because the Respondent knew that he too was involved with the Union, provide ample evidence of the Respondent’s animus. This is reinforced by Munoz’s additional warning to Correa, “it can happen to [you] the same as it happened to Mrs. Amparo Correa, Mr. Armando Pons . . . and Mrs. Rosario Lopez.”

   We recognize, as the judge found, that there is no evidence that Munoz was personally involved in the Respondent’s decision not to hire Amparo Correa, Pons, and Lopez. Yet, his statements provide an explanation for those hiring decisions and it is reasonable to infer that Munoz, as a supervisor, did know why the decisions were made, even if he did not make them. Munoz identified the alleged discriminatees by name and specifically linked their failure to be hired to their support for the Union. As explained above, these statements were definitive. They included nothing to suggest that they were mere expressions of a personal opinion. Nothing in the record supports the inference that Munoz, for some unknown reason, was fabricating. In these circumstances, we find that Munozs statements...