1 On April 17, 1996 a
Secretary's Order was signed, redelegating jurisdiction to issue final agency decisions under this
statute and
these regulations to the newly created Administrative Review Board. 61 Fed. Reg. 19978 (May
3, 1996)
(copy attached).
Secretary's Order 2-96 contains a comprehensive list of the statutes,
executive order and
regulations under which the Board now issues final agency decisions. A copy of the final
procedural
revisions to the regulations (61 Fed. Reg. 19982), implementing this reorganization is also
attached.
2 The case was
assigned to ALJ Charles W. Campbell who conducted the hearing in Austin, Texas, in January of
1993.
Judge Campbell retired before issuing the decision and the case was transferred to Judge Daniel
J.
Rocketenetz.
3 In fact, five
previous janitorial contractors had performed this GSA contract between 1980 and 1987 and each
had
maintained a collective bargaining relationship with the Industrial, Technical and Professional
Employees
Division of the AFL-CIO and their unit members. Each successive employer had hired the old
employees
leading the United States Court of Appeals for the Fifth Circuit to conclude that the "new
job was
merely a continuation of the old." N.L.R.B. v.Houston Bldg. Service,
Inc., 936
F.2d 178-179, (5th Cir. 1991).
4 Upon review, we
also dismiss as without merit, Petitioner Yoo's argument that he was not the party responsible for
the
violations of the SCA. The ALJ's findings that Mr. Yoo signed the contract, and was responsible
for the
day-to-day operation of HBS, including the assignment of jobs and responsibilities under the
contract (D.
and O. at 2, 3 and 7), are supported by a preponderance of the record evidence and are thus
dispositive.
29 C.F.R. § 4.187(e)(2) and (3).
5Fall River
Dyeing & Finishing Corp. v. N.L.R.B., 482 U.S. 27 (1978) (citing N.L.R.B. v. Burns
Int'l Security
Servs., Inc. 406 U.S. 272 (1972) where the following factors were listed: whether the
business of both
employers is essentially the same; whether the employees of the new company are doing the
same jobs in
the same working conditions under the same supervisors; and whether the new entity has the
same
production process, produces the same products, and basically has the same body of customers.
The Fifth Circuit found in the companion case that the predecessor had
recognized the union and
signed a collective bargaining agreement that was to run into 1989. However, when HBS was
awarded
the GSA contract in 1987, it ignored the terms of the bargaining agreement. Therefore, the Fifth
Circuit
held that HBS violated its obligation to bargain under that agreement. Within approximately 10
days of
starting work on the contract, HBS terminated eleven of the holdover employees followed, over
the next
few weeks, by several more, and gradually replaced them with new employees who had passed
security
clearance procedures.
6 "An SCA
successor contractor may be under no obligation to hire employees based on its predecessor's
employees'
seniority but once those employees were hired . . . without a break in service, the employees were
due the
required SCA fringe benefits from their first day of service regardless of whether [the employer]
considered
them probationary or not." Unified Services, Inc. and Jerry Davis, Jr., BSCA Case
No. 92-36 (Jan. 28, 1994), slip op. at 6 (citing Industrial Maintenance Service Inc.,
BSCA Case No. 92-22 (Apr. 5, 1993).