Laro Maintenance Corporation v. National Labor Relations Board, Service Employees International Union, Afl-Cio, Intervenor

56 F.3d 224, 312 U.S. App. D.C. 260
CourtCourt of Appeals for the D.C. Circuit
DecidedAugust 16, 1995
Docket94-1064
StatusPublished
Cited by41 cases

This text of 56 F.3d 224 (Laro Maintenance Corporation v. National Labor Relations Board, Service Employees International Union, Afl-Cio, Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Laro Maintenance Corporation v. National Labor Relations Board, Service Employees International Union, Afl-Cio, Intervenor, 56 F.3d 224, 312 U.S. App. D.C. 260 (D.C. Cir. 1995).

Opinions

Dissenting opinion filed by Circuit Judge RANDOLPH.

ROGERS, Circuit Judge:

Laro Maintenance Corporation petitions for review of the decision and order of the National Labor Relations Board finding that Laro had violated §§ (8)(a)(l) and (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (3), by discriminating against certain applicants for employment based on their union membership. Laro Maintenance Corp., 312 N.L.R.B. 155, 1993 WL 371437 (1993). Specifically, Laro contends that the Board impermissibly presumed anti-union animus and lacked substantial evidence to support its finding of discriminatory intent. Because the Board applied the appropriate legal standard and substantial evidence in the record considered as a whole supports its determination that Laro’s failure to hire any of the thirteen applicants was based on their union membership, we deny the petition for review and grant the Board’s cross-petition for enforcement.

I.

For about six years ending on September 30, 1990, Prompt Maintenance Services, Inc. cleaned and maintained the federal government building at 225 Cadman Plaza in Brooklyn, New York under a contract with the General Services Administration (“GSA”). Prompt employees performed this work under a collective bargaining agreement between Prompt and Local 32B-32J, Service Employees International Union, AFL-CIO (“Local 32B”). In April 1990, the GSA solicited bids for a new cleaning contract at Cad-man Plaza. The bid solicitation required the new contractor to pay the same wages as Prompt and to have an initial work force of which at least fifty percent comprised experienced cleaners. Laro was awarded the contract to begin October 1, 1990.

On or about September 17, 1990, Local 32B requested that Laro hire Prompt’s Cad-man Plaza employees. On September 18, Laro’s President, Robert Bertuglia, toured the Cadman Plaza building. A GSA official mentioned the names of various employees as being “good workers,” and Bertuglia observed two Prompt employees sleeping. Bertuglia did not take note of the names of either the good workers or the sleeping workers. After the inspection, the building manager (another GSA employee) informed Bertuglia that the GSA had taken deductions from Prompt’s fee, presumably for deficient performance.1 Bertuglia told the building manager that he did not intend to hire any of Prompt’s employees because of the deductions and the two employees he had seen sleeping on the job. The building manager informed Bertuglia that certain judges whose chambers were in the Cadman Plaza building wanted Laro to retain the Prompt employees who cleaned their chambers. The building manager also advised Bertuglia to interview all Prompt employees and stated that it would be advantageous for Laro to hire as many of them as possible. Several days later, the GSA official who conducted the inspection gave Bertuglia a list of ten “better cleaners from Prompt Maintenance,” and urged Laro to hire them.

Despite Bertuglia’s stated desire not to hire any Prompt employees, Laro agreed to hire the ten Prompt employees on the GSA’s list. Laro accepted applications from other Prompt employees but had already decided that it would not hire any of them; consequently Laro asked the Prompt employees who were not on the GSA’s list virtually no questions about their background or experience and did not seek information about individual Prompt employees who had good work records and had worked at Cadman Plaza for a number of years for Prompt and its predecessor. Instead, to complete its Cadman Plaza work force, Laro hired eight workers who had not previously worked for Prompt. [227]*227Laro had previously employed four of these workers. Two had good work records and requested transfers to Cadman Plaza. Laro transferred the other two to Cadman Plaza at least in part because of their poor performance at Laro’s Jamaica, New York site: Laro had discharged one for poor attendance and insubordination three weeks before it hired her to work at Cadman Plaza, and transferred the other because he required constant supervision, did not get his work done, made frivolous excuses for his failure to complete tasks, and constantly complained. Laro also hired four workers who had not previously been employed by either Prompt or Laro. Laro admitted that three of them had no relevant work experience, and although the fourth worker listed factory and office cleaning as relevant experience on his application, he did not list any positions at which he would have gained such experience. On September 28, 1990, just before commencing work at Cadman Plaza under its contract with GSA, Laro entered into a supplemental agreement with Amalgamated Local Union 355 (“Local 355”) — with which Laro had a collective bargaining agreement (August 1, 1990, through July 1, 1993) for its employees in Jamaica, New York — covering its employees at Cadman Plaza.

Thereafter, Local 32B filed an unfair labor practice charge against Laro. The Board’s General Counsel filed a complaint, alleging violations of §§ 8(a)(1), (2), (3), and (5) of the Act on the ground that Laro had bargained with Local 355 knowing that it represented a minority of the workers at Cadman Plaza and that it had refused to consider employing Prompt employees, other than those on the GSA’s list, because of their union membership. When these charges came before an Administrative Law Judge (“ALJ”) for a hearing, Laro admitted that it had recognized Local 355 although Local 32B represented a majority of the employees at Cad-man Plaza; the Board entered into an informal settlement agreement with Laro whereby Laro agreed to recognize Local 32B for its Cadman Plaza employees, thus disposing of the alleged violations of §§ 8(a)(2) and (5). Following a hearing on the remaining complaint allegations, the ALJ concluded that Laro violated §§ 8(a)(1) and (3) upon finding that Laro had declined to consider any Prompt employees who were not on the “better cleaners” list in order to recognize and bargain with Local 355 rather than Local 32B. The Board adopted the ALJ’s findings and conclusions with minor modifications and ordered Laro to offer employment and back pay to the Prompt employees it had refused to consider.2 Laro petitioned for review under 29 U.S.C. § 160(f), and the Board cross-petitioned for enforcement under 29 U.S.C. § 160(e).

II.

Section 8(a)(3) of the Act makes it an unfair labor practice for an employer “to encourage or discourage membership in any labor organization,” “by discrimination in regard to hire or tenure of employment or any term or condition of employment.... ” 29 U.S.C. § 158(a)(3).3 Under this section, a successor employer not the alter ego of its predecessor is not obligated to hire its predecessor’s employees. Howard Johnson Co. v. Hotel & Restaurant Employees Int’l Union, 417 U.S. 249, 259 n. 5, 261, 94 S.Ct. 2236, 2242 n. 5, 2243, 41 L.Ed.2d 46 (1974) (quoting NLRB v. Burns Int’l Sec. Servs., 406 U.S. 272, 280 n. 5, 92 S.Ct.

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Bluebook (online)
56 F.3d 224, 312 U.S. App. D.C. 260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/laro-maintenance-corporation-v-national-labor-relations-board-service-cadc-1995.