NLRB Orders Hiring, Bargaining by Successor Company

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By Lawrence E. Dubé

May 3 — A janitorial firm that took over cleaning contracts at three New Jersey office buildings must offer employment to 33 workers who were unlawfully denied jobs because of their membership in a union, the National Labor Relations Board held.

The decision shows a successor employer that illegally avoids hiring union members in order to evade their union may eventually face an NLRB order to accept both the employees and the labor organization.

Chairman Mark Gaston Pearce and Members Kent Y. Hirozawa and Lauren McFerran May 2 affirmed an administrative law judge's decision that Eastern Essential Services Inc. unlawfully avoided hiring members of Service Employees International Union Local 32BJ who had worked for predecessor companies. The board also agreed with the ALJ that Eastern should be ordered to recognize and bargain with the union.

The board said several of the predecessors' employees were told they weren't being hired because of their union memberships. The employer also turned away applicants wearing union T-shirts, while it told other individuals they could return later and apply for work.

ALJ Found Hiring Bias, Refusal to Bargain

According to the decision and NLRB records, Eastern took over janitorial contracts in 2014 at three northern New Jersey office buildings that had been serviced by two companies. Both companies had collective bargaining agreements with Local 32BJ.

Eastern took over the work at the three buildings without hiring the incumbent employees or recognizing Local 32BJ.

The union filed an unfair labor practice charge, and the NLRB's general counsel issued a complaint, which the ALJ sustained (134 DLR A-3, 7/14/15).

Eastern claimed that it didn't hire the predecessors' employees because it preferred to find new employees through personal referrals.

However, the ALJ said the employer's explanations were inconsistent and the general counsel's evidence was sufficient to establish that the company's hiring violated Section 8(a)(3) of the National Labor Relations Act, which prohibits discrimination against employees, including applicants for employment, because of union membership or activity.

ALJ Steven Davis also held that Eastern was a successor to the unionized companies at each of the buildings it took over from them.

“Where, as here, a Respondent has unlawfully refused to hire its predecessors' employees,” Davis wrote, “the Board infers that these employees would have been retained, absent the discrimination against them.”

Board Finds Evidence Confirmed Violations

Eastern appealed to the board, but Pearce, Hirozawa and McFerran agreed with the unfair labor practice findings.

The board members said the general counsel's evidence of discriminatory hiring established a prima facie case of an NLRA violation while the company failed to meet its rebuttal burden of showing it wouldn't have hired the union-represented employees even in the absence of an unlawful motive.

The board ordered the employer to offer employment to the 33 employees who were denied employment at the three office buildings, and to recognize and bargain with Local 32BJ as their union representative.

To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com