In Eastern Essential Services, (22-CA-133001, July 13, 2015), an ALJ found that a successor cleaning company violated the National Labor Relations Act when it refused to hire members of the predecessor’s cleaning crew due to their union affiliation. The employer, a janitorial cleaning service, took over the cleaning contracts for three buildings in New Jersey.  When the employer did not hire any employees from the predecessor’s cleaning crew, the former employees filed an unfair labor practice charge.

The employer argued that it has a long-standing policy never to hire the current employees working in a building that it takes over, and, instead, hires exclusively through its “internal reference system.”  The ALJ, however, opined that the employer failed to offer a “convincing rationale” for the “internal reference system.”  Among other things, the ALJ reasoned that, “[the employer] does not claim that the employees it obtains through the system are more able workers than the incumbents are or even that is has confidence in their ability to perform the work.”  Additionally, the ALJ discredited the employer’s reliance on the policy, finding that the employer did not always follow the stated policy.  As a result, ALJ held—in sweeping terms—that the employer’s “decision to ignore the obvious choice of hiring an experienced and available workforce supports a reasonable inference that its decision was motivated by animus toward the Union.”

The ALJ further ordered the employer to hire the aggrieved employees “in their former positions or, if such positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, discharging if necessary any employees hired in their place.”