01/27/2025: Successor Employer Unlawfully Refused to Hire Union Workers
Also another supervisory status dispute.
Parking Systems, Inc., JD-04-25, 29-CA-331253 (ALJ Decision)
This case involves Parking Systems Plus, Inc.'s takeover of valet parking operations at Stony Brook University Hospital from Classic Valet Parking, Inc. The key issue was whether Parking Systems violated the NLRA by refusing to hire Classic's unionized employees to avoid becoming a successor employer with bargaining obligations.
The ALJ found that Parking Systems initially planned to interview and potentially retain Classic employees, as evidenced by internal emails discussing determining "how many we're retaining." However, after receiving notice from the union requesting recognition and assumption of the collective bargaining agreement, Parking Systems changed course and decided to hire only one Classic employee, Gil Reyes, at the university's specific request.
During Reyes's job interview, a Parking Systems manager told her the company could not hire all Classic employees because "they don't work with unions." The ALJ found this statement violated Section 8(a)(1) as it conveyed that employees would not be hired due to their union representation. However, the ALJ rejected allegations that Parking Systems unlawfully conditioned employment on abandoning the union.
The ALJ determined Parking Systems violated Section 8(a)(3) by refusing to hire Classic employees due to their union representation. The company's claimed policy against hiring predecessor employees was found pretextual, as it was never documented and contradicted by earlier plans to interview Classic staff.
On the successorship issue, the ALJ found Parking Systems would have been a successor employer had it not discriminatorily refused to hire Classic employees. The operation remained substantially unchanged, with the same basic valet parking services provided at the same location. Minor operational changes did not alter the essential continuity of the enterprise from employees' perspective.
As remedies, the ALJ ordered Parking Systems to offer employment to all former Classic employees, make them whole for lost earnings and benefits, recognize and bargain with the union, and restore preexisting terms and conditions of employment until good faith bargaining occurs.
Significant Cases Cited
Weco Cleaning Specialists, Inc., 308 NLRB 310 (1992): An employer's refusal to hire a majority of predecessor employees to avoid a bargaining obligation constitutes anti-union animus and violates the NLRA.
Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987): Established test for determining successorship based on substantial continuity between predecessor and successor operations.
Planned Building Services, 347 NLRB 670 (2006): Held that where successor discriminatorily refuses to hire predecessor employees, Board will infer all would have been retained absent discrimination.
Love's Barbeque Restaurant, 245 NLRB 78 (1979): Established that successor who discriminatorily refuses to hire predecessor employees forfeits right to set initial terms of employment.
Exterior Systems, Inc., 338 NLRB 677 (2002): An employer violates Section 8(a)(1) by making statements that union applicants will not be hired, as such statements are coercive and interfere with employees' rights.
Keolis Transit Services, LLC, 28-RC-350291 (Regional Election Decision)
The case involves Keolis Transit Services and Amalgamated Transit Union Local 1433's petition to represent dispatchers, OCC controllers, and road supervisors at Keolis's Tempe and Mesa, Arizona facilities. The central issue was whether road supervisors qualify as statutory supervisors under Section 2(11) of the National Labor Relations Act.
The Regional Director found that road supervisors are not statutory supervisors and should be included in the bargaining unit. The analysis focused on whether road supervisors possessed any of the supervisory powers listed in Section 2(11) with independent judgment.
The evidence showed that road supervisors primarily perform routine monitoring and reporting duties. They observe operators' adherence to schedules and safety protocols, complete accident reports and daily logs, and relay instructions from dispatchers and the Operations Command Center. While they provide coaching on minor infractions, they lack authority to discipline, assign work, or make other personnel decisions. Their actions are guided by established protocols rather than independent judgment.
The employer failed to demonstrate that road supervisors have hiring, firing, disciplinary or other supervisory authority. Their role in drug testing and accident investigations involves following preset procedures without discretion. The evidence also showed they lack secondary indicia of supervisory status - they wear the same uniforms as unit employees and are excluded from management meetings.
The Regional Director directed an election for a unit including road supervisors, dispatchers and OCC controllers, with the election to be held in February 2025.
Significant Cases Cited
Oakwood Healthcare, Inc., 348 NLRB 686 (2006): Established that supervisory status under Section 2(11) requires the exercise of independent judgment, not merely routine or clerical tasks.
NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (2001): Affirmed that the exercise of independent judgment is a key factor in determining supervisory status.
Golden Crest Healthcare Center, 348 NLRB 727 (2006): Emphasized that job descriptions alone are insufficient to establish supervisory authority; actual practice must be considered.
Veolia Transportation Services, 363 NLRB 1879 (2016): Held that employees who follow established protocols without independent judgment do not qualify as supervisors.