Before Wald, Randolph, and Rogers, Circuit Judges.
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review and Cross-Petition for Enforcement of a Decision and Order of the National Labor Relations Board
Opinion for the Court filed by Circuit Judge Rogers.
Dissenting opinion filed by Circuit Judge Randolph.
Laro Maintenance Corporation petitions for review of the decision and order of the National Labor Relations Board finding that Laro had violated Section(s) (8)(a)(1) and (3) of the National Labor Relations Act, 29 U.S.C. Section(s) 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).
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.
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 Cadman 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 Cadman 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. *fn1 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. Laro 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 ...