Boston-Needham Industrial Cleaning Co., Inc.

National Labor Relations Board - Board Decisions

Jan 3, 1975

216 N.L.R.B. 26 (N.L.R.B. 1975)

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boston-Needham Industrial Cleaning Co., Inc. and
Building Service Employees' International Union,
Local 254, AFL-CIO. Case 1-CA-9524
January 3, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS KENNEDY AND PENELLO
On June 19, 1974, Administrative Law Judge
Josephine H. Klein issued the attached Decision in
this proceeding. Thereafter, General Counsel and the
Charging Party filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
only to the extent consistent herewith.
The Administrative Law Judge found that Respon-
dent was not a successor and therefore had not
violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with the Union as the
exclusive collective -bargaining representative of Re-
spondent 's cleaning maintenance employees working
at an RCA facility in Burlington , Massachusetts. We
find merit in the General Counsel's and the Charging
Party's exceptions to this finding.
The facts generally are uncontested and are briefly
as follows . Pursuant to a contract , Sanitas Services of
Massachusetts, Inc., performed the maintenance
services at the RCA facility in Burlington , Massachu-
setts, through the end of 1973 . Sanitas was signatory
to a collective-bargaining agreement between a
multiemployer association , Maintenance Contractors
of New England, Inc. (the Association), and the
Union covering all janitorial employees of the
Association 's members wherever employed in Massa-
chusetts. Collectively, the members of the Associa-
tion have approximately 3,000 employees. The
collective-bargaining agreement included standard
30-day union-security and dues checkoff provisions.
I Apparently, these full-time employees worked during the day.
s Most part-time employees worked about 3 or 4 hours a night, Monday
through Friday.
3 The Administrative Law Judge found no reason to question Admims-
trat've Law Judge Ordman's finding, in Nova Services Company, 213 NLRB
No. 14 (1974), that Sanitas had over 300 employees as of November 1973.
4 This figure includes employees on both the day and not shifts.
At the end of December 1973, Sanitas had working
at the RCA installation 7 full-time employees,' 30
part-time employees,2 5 persons designated as "fore-
men," and 1 overall "supervisor," Robert Barnett.
Toward the end of December 1973 Respondent,
not a member of the Association and not a party to
any collective-bargaining agreement, obtained the
contract for cleaning the RCA facility commencing
January 2, 1974. Respondent, which has a total of
about 175 employees,3 began performance under its
RCA contract with approximately 32 regular em-
ployees4 plus Supervisor Ed Sheaff. It is undisputed
that most of Sanitas' employees working at the
Burlington location, other than those classified as
foremen or supervisors, were members of the Union.5
Of the total of 32 employees that were on Respon-
dent's payroll as of January 4, 1974, servicing RCA,
21 were previously employed by Sanitas at RCA. On
January 4, 1974, the Union demanded that Respon-
dent recognize and bargain with the Union for the
janitorial employees at RCA. Respondent rejected
the demand.
Consideration of the Respondent's legal obliga-
tions in this case requires a balancing of all the
circumstances to determine whether a finding of
successorship is warranted. N.L.R.B. v. Burns Inter-
national Security Services, Inc.6 In Burns, the William
T. Bums International Detective Agency had been
awarded the contract to perform plant protection
and security services at an aircraft service company's
plant. Such services formerly had been performed by
Wackenhut Corporation. Bums hired 27 former
Wackenhut employees which constituted a majority
of the new employer's 42-member work force. Upon
the cancellation of the contract between Wackenhut
and the aircraft company, Bums acquired the
contract, hired a majority of Wackenhut's employ-
ees, and continued to perform the same service, in
the same manner, and for the same customers, at the
same location as its predecessor. In finding that
Burns was a successor, the Board stressed that "the
finding of successorship involves a judgment that the
employing industry has remained essentially the
same despite the change in ownership." 7 The
Supreme Court approved the Board's finding of a
successorship based on the fact that the new
employer had "selected as its work force the
employees of the previous employer to perform the
6 The Administrative Law Judge noted that Sanitas' records indicate that
as of December 28, 1973 , 31 of its employees at the RCA Burlington facility
were actually members of the Union . Additionally, three part-time
employees had been hired within the preceding 30 days.
6 406 U .S. 272 (1972).
r 182 NLRB 348, 349 (1970).
216 NLRB No. 12
BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 27
same task at the same place they had worked in the
past." 8
We are of the view that the Respondent herein
effected no substantial change in the employing
industry. Thus, on January 2, 1974, the Respondent
commenced the performance of substantially identi-
cal operations which had previously been performed
by Sanitas, servicing the same facility for the same
customer in substantially the same manner and
utilizing for that purpose a majority of the former
Sanitas work force who performed the same func-
tions, and exercised the same skills . The size and
organizational structure of Respondent are compara-
ble to that of Sanitas,9 thus not effecting a substan-
tial difference in the employer-employee relationship
of the companies . 10 Moreover , the delineation of
both Sanitas' and Respondent 's cleaning responsibil-
ities, as well as the control of their personnel, has
always been retained by the management of RCA.
The number of employees working the RCA facility
remained approximately the same . While Respon-
dent did change Sanitas ' operating methods slightly
by using "waxers" or "spares" employed out of
Respondent's central office in Needham," such
spares are used on an irregular basis to supplement
the employees regularly employed at RCA. This
variation in Respondent's operating methods is not
sufficient to alter the basic nature of the employing
industry.l2
Similarly, that no high -level Sanitas supervisor was
retained by Respondent is not persuasive in these
circumstances . Although Respondent uses its own
supervisors, their functions and responsibilities ap-
pear similar to those performed by their predeces-
sors.13 Although in other circumstances resort to
evidence of substantial continuity in employment of
the predecessor's supervisory staff may be helpful in
tracing the identity of the employing industry, in the
instant case this factor is not of overriding impor-
tance since other factors indicate that essentially the
same operation has been continued.14 It is also clear
that when Respondent entered its bid for the
janitorial and cleaning services contract, it was
bidding to conduct the same servicing operation at
the RCA facility that was formerly performed by
Sanitas. It is also clear that Respondent took over the
RCA operation with knowledge that Sanitas was a
union employer and that the Union had representa-
tive status.15
Respondent contends, however, that the only
appropriate unit in this matter is a unit consisting of
all cleaning and maintenance employees employed
by Respondent and that therefore Respondent is not
a successor . Such a contention disregards the general
rule that a single-plant unit is presumptively appro-
priate.16 Here, a weighing of the critical factors
indicates a sufficient separate community of interest
to justify a single-plant unit as appropriate.17 All of
Respondent's regular employees work at the Burling-
ton facility exclusively with no interchange of
employees between jobsites. Moreover, employees of
RCA are under separate and distinct supervision
from the employees who work at Respondent's other
jobsites.18 Accordingly, we find no substantial
evidence to establish that the RCA facility has been
s 406 U .S. 272, 278 (1972).
See In . 3, supra
10 But cf. Atlantic Technical Services Corporation, 202 NLRB 169 (1973).
11 The functions of these so-called "waxers" are set out more fully in the
discussion of unit placement, infra.
12 Nor do we attach great weight to the fact that apparently there was no
transfer of equipment or other assets from Sanitas to Respondent. In
according this factor little weight in these circumstances, we are especially
cognizant of the peculiar nature of the cleaning industry and the rather
insignificant impact the equipment and assets will have upon the industry's
nature. Basically , Respondent's contractual obligations only necessitate the
utilization of its own pails , mops , wax, and other cleaning implements.
Accord , Maintenance, Incorporateit 148 NLRB 1299 (1964). See also
Overnight Transportation Co., 157 NLRB 1185, enfd. 372 F.2d 765 (C.A. 4,
1%7), cert. denied 389 U.S. 838 (1%7).
13 As noted by the Administrative Law Judge, Sanitas employed five
foremen whereas Respondent employs three . Robert Barnett, Samtas'
overall "supervisor," was replaced by Edward Sheaff who retained similar
charge of Respondents operations at RCA. Donald Coming became
Respondent's general manager, a position which had no counterpart in the
Sanitas operation . Additionally , the status of two or three "foremen"
employed by Respondent was litigated at the hearing but left unresolved by
the Administrative Law Judge who found that issue pretermitted by her
conclusion that Respondent was not a successor to Sanitas . Our resolution
of the status of these employees is set forth in our discussion of unit
placement , infra.
14 Accord, Maintenance, Incorporated, supra.
15 Donald Coming, Respondent's general manager, did all the employee
interviewing and hiring. Corning testified that he told each of the former
Sanitas employees who applied for work that Respondent was nonunion
and the job would be so operated . According to Coming, such applicants
replied that they did not care whether the job was union or not . Corning
further testified that he would not have hired former Samtas employees if he
felt that they were union and that he was going to go through this hassle. A
refusal to hire for this reason would constitute a violation of Sec . 8(a)(3).
N.L.R.B. v. Burns International Security Services, 406 U.S. 272, 280, fn. 5;
Columbus Janitor Service, 191 NLRB 902, 903 (1971); Greengate Mall, Inc.,
209 NLRB 37 (1974), (ALJD). However, since there is no allegation or
evidence of such discriminatory conduct and since the complaint does not
allege any such violation we make no finding as to whether such a violation
occurred.
ie See Welsh Co., 146 NLRB 713 (1964); National Cash Register Co., 166
NLRB 173 (1967).
17 Cf. Haag Drug Company, Incorporated, 169 NLRB 877 (1968).
1s Ed Sheaff, Respondent's RCA supervisor, is charged with day-to-day
authority at the plant including the power to hire , discharge, and effect the
terms and conditions of employment . The record further indicates that if
Sheaff encounters a serious problem , he refers it to Don Corning,
Respondent's general manager. Although Corning does not spend all of his
time at the Burlington facility, he has ultimate hiring and firing authority
only for that plant . Respondent employs other general managers who
perform the same duties and have the same authority at Respondent 's other
jobsites . See Oriole General Cleaning Services, Inc., 186 NLRB 833 (1970);
Big N Department Store No. 333, 199 NLRB 174 (1972).
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
effectively merged into a more comprehensive unit so
as to have lost its individual identity.19
Nor do we find here that mere diminution in the
unit scope relieves the successor of his duty to
bargain. Although in other circumstances we believe
that it may be a relevant factor to be considered,
among others, in determining whether or not a new
employer is a successor, such is not the case here
since we have concluded that the slight changes
instituted by Respondent are not such as to affect
employee attitudes significantly, and since no reason-
able basis has been offered for doubting the Union's
continued majority status.20 Accordingly, the totality
of circumstances persuades us that sufficient criteria
exist which warrant a finding that there has been no
basic change in the employing industry.
In making this determination , we take issue with
the Administrative Law Judge's finding that Lincoln
Private Police, Inc.,21 is "virtually on all fours with
the present case ." Such reliance on Lincoln overlooks
fragmentation of the employing industry there which
does not exist in the present case . Thus, in Lincoln,
the Board confronted a situation involving a number
of security guard contracts providing services at
locations throughout Puerto Rico. Lincoln's prede-
cessor, Industrial Guard Services, Inc., had been a
party to 61 such contracts of which Lincoln acquired
only 26, or 42 percent. Apparently, after a number of
Industrial 's clients canceled their service contracts,
Lincoln's agent began the independent solicitation of
Industrial's clients for the continuation of guard
services upon Industrial 's anticipated demise which
occurred 2 months later . The remaining 35 contracts
or 58 percent were acquired by competing guard
service companies . One such company , Metropolitan
Security Services , Inc., acquired the largest portion
which constituted an amount almost the same as that
acquired by Lincoln. This splitting asunder of the
19 See Frisch's Big Boy 111-Mar, Inc., 147 NLRB 551, fn . 1 (1964); Weis
Markets, Inc., 142 NLRB 708 (1963); Dixie Belle Mills, Inc., 139 NLRB 629
(1962).
20 See Zan 's Foodliner, Inc., d/b/a Zim 's IGA Foodliner, et al. v.
N.LRB., 495 F.2d 1131 (C.A. 7, 1974), review denied 43 U.S.L.W. 3199
(Oct. 15, 1974).
21 189 NLRB 717 (1971).
22 Nor is Nova Services Company, supra, a case involving the same
predecessor, in close congruence with the instant case as suggested by the
Administrative Law Judge.
Unlike the present case, there , upon successfully soliciting a contract to
provide janitorial service to a bank's facilities , the alleged "successor"
assumed only a small part of the predecessor's operation at that location.
Moreover, a competing enterprise of the alleged "successor" assumed much
of the bank work, all of which Sanitas had performed . Under these
circumstances, an indispensable prerequisite for a finding of successor-
Ship-a substantial continuity in the employing industry-was absents
Here, however, Respondent has succeeded to the entire cleaning contract
previously performed by Sanitas for RCA, and Respondent has continued
the cleaning operation in essentially the same manner . Thus, the basic
nature of the employing industry is unaltered.
We also take issue with the Administrative Law Judge 's conclusion that a
nonsuccessorship finding here is reinforced by the supreme Court's
interpretation of the successorahip concept in Howard Johnson Company,
employing industry is not evidenced in the present
case.22
We conclude, therefore, that Respondent is a legal
successor to Sanitas and that Respondent has
violated the Act by refusing to recognize and bargain
with the Union.
Having made this determination, it is necessary to
resolve the status of the so-called "spares" 23 and of
three "foremen"24 for purposes of unit placement.
As previously noted, Respondent employs 12 to 14
so-called "spares" who supplement the services
provided by Respondent's regular part-time employ-
ees. Unlike these regular part-timers who work
exclusively at RCA's Burlington facility under the
supervision of Ed Sheaff, the "spares" are full-timers
employed out of Respondent's central office in
Needham. The "spares" work on an irregular basis at
various locations serviced by Respondent. While
their primary function is to wax floors, the "spares"
also are dispatched to fill in for absentees on an ad
hoc basis as needed at various locations. Consequent-
ly, the waxers who work at the RCA Burlington
establishment differ from time to time.25 The waxers
generally work in teams of three and, unlike
Respondent's RCA employees, utilize company
trucks in traveling to the jobsites which require
service. The "spares" also receive higher wages than
do the regular employees 26 and they are guaranteed
50 hours' work per week if they request it.27 Upon
the foregoing, we find that the "spares" do not share
a sufficient community of interest'with the Respon-
dent's cleaning employees at RCA28 and they are
therefore excluded from the designated unit.
The status of three so-called "foremen," Robert J.
Beaulieu, Jr., Francis J. O'Connor, and James F.
McNamara, Jr., was left unresolved by the Adminis-
trative Law Judge. General Counsel contends that all
three are nonsupervisory employees and should
Inc. v. Detroit Local Joint Executive Boars Hotel and Restaurant Employees
and Bartenders International Union, AFL-CIO, 94 S.Ct. 2236 (1974). Howard
Johnson involved an action under Sec. 301 of the LMRA. As the Court
carefully pointed out, its holding in that case was that Howard Johnson was
not required to arbitrate with the union representing the previous
employer's employees in the circumstances of that can. Whether Howard
Johnson was or was not a "successor employer" for any other purpose was
not decided. Id at 2244, fn. 9.
23 See fn. 11, supra, and accompanying text.
24 See fn. 13, supra, and accompanying text.
sa While the evidence in the record is insufficient to clearly establish the
relative amounts of time worked by the regulars and the waxers at the RCA
facility, it is apparent that there is no interchangeability between the waxers
and Respondent's cleaning employees at RCA. Moreover, because of
changes of assignment, each waxer spends relatively little time working at
RCA.
as Waxers receive $2.75 an hour to start, whereas regular cleaners begin
at $2.25 an hour . Even if a waxer fills in for a regular cleaner who is absent,
the waxer would receive the hourly rate of $2.75.
71 On the other hand, cleaners at RCA average 40 hours a week and
work no more than that.
ss Cf. Cablecom-General Inc., 190 NLRB 506 (1971); Curcie Brothers,
Inc., 146 NLRB 380 (1964); and R. L Polk and Company, 118 NLRB 1454
(1957).
BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 29
therefore be included in the designated unit. We
agree.
Here, all three individuals in question were
formerly employed by Samtas at the RCA facility in
Burlington . With respect to Robert J. Beaulieu, Jr.,
the parties stipulated that as of January 4, 1974,29 he
worked for Respondent at RCA's Burlington facility
and was not a supervisor within the meaning of the
Act. We so find and therefore include Beaulieu in the
designated unit on the crucial date in question.30
As of January 2, 1974, Francis J. O'Connor was
employed by Respondent at RCA performing essen-
tially the same duties and at the same hourly wage as
with Sanitas. While employed with Sanitas, O'Con-
nor did not have the authority to hire, fire, nor
effectively so recommend, as that authority was
vested solely in Sanitas Supervisor Robert Barnett.
Under Respondent's employ, Edward Sheaff re-
placed Robert Barnett as supervisor. If anything out
of the ordinary routine occurred on the job, Mr.
O'Connor would see Mr. Sheaff for instructions.31
While Mr. Sheaff's testimony indicates that Mr.
O'Connor may have been given supervisory powers
at some period after Respondent assumed the
contract at RCA, it is also clear that as of January 4,
1974, Mr. O'Connor was not vested with any
supervisory authority. Thus, if Mr. O'Connor was
absent from the job, a regular spare usually filled in.
Any assignments, training, or instruction Mr. O'Con-
nor performed were based on greater experience, as
well as the rather routine nature of his work. On this
basis, we find that Mr. O'Connor is not a supervisor
within the meaning of the Act. Accordingly, he is
included in the unit as of January 4, 1974.
Similarly, as of January 2, 1974, James F. McNa-
mara, Jr., became employed by Respondent at RCA
performing the same duties and at the same hourly
wage as with Sanitas . Mr. McNamara's position and
authority under the Respondent is basically the same
as that of Mr. O'Connor.32 We find, therefore, that
Mr. McNamara is not a supervisor within the
meaning of the Act and he is included in the unit as
of January 4, 1974.
ORDER
The Respondent, Boston-Needham Industrial
Cleaning Co., Inc., Needham, Massachusetts, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
29 This is the date on which the Umon demanded that Respondent
recognize and bargain with the Umon.
30 The record indicates that , while working for Sanitas, Mr. Beaulieu was
a dues-paying member of Local 254 of the Building Service Employees.
31 The record indicates that Mr. O'Connor not only receives his
instructions from Mr . Sheaff but also from RCA Supervisors Joe Rainville,
Mazone , and John Andrews
(a) Refusing to recognize and bargain collectively
with Building Service Employees ' International
Union, Local 254, AFL-CIO, as the exclusive
bargaining representative of all employees in the
appropriate unit in violation of Section 8(a)(1) and
(5) of the Act. The appropriate unit is:
All cleaning maintenance employees employed by
Respondent at the RCA Corporation facility in
Burlington, Massachusetts, but excluding all
office clerical employees, professional employees,
guards and supervisors as defined in Section 2(11)
of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of the employees in the above-described unit.
(b) Post at the RCA facility in Burlington,
Massachusetts, copies of the attached notice marked
"Appendix."33 Copies of said notice, on forms
provided by the Regional Director for Region 1,
after being duly signed by an authorized representa-
tive of the Respondent, shall be posted by it in
conspicuous places, including all places where
notices to employees are customarily posted, imme-
diately upon receipt thereof, and be maintained by it
for at least 60 consecutive days thereafter. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 1, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
MEMBER KENNEDY , dissenting:
The reversal of the Decision of the Administrative
Law Judge is unwarranted. I think her conclusion
that the instant case is controlled by Lincoln Private
Police, Inc., 189 NLRB 717 (1971), is clearly correct.
My colleagues err, I think, in trying to distinguish the
instant case from Nova Services Company, 213 NLRB
No. 14 (1974), which involved cleaning services
previously performed by Samtas. The Board there
adopted the analysis of Administrative Law Judge
32 In any event , Mr. McNamara was a foreman for Sanitas only until
November 1, 1973.
33 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ordman and that analysis is applicable to the instant
case.
I would adopt the Decision of the Administrative
Law Judge in its entirety.
Upon the entire record,2 together with careful observa-
tion of the witnesses and consideration of the briefs, I
make the following:
FINDINGS OF FACT
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively
with Building Service Employees' International
Union, Local 254, AFL-CIO, as the exclusive
bargaining representative of our employees.
WE WILL, upon request, bargain collectively
with the above-named Union for the following
appropriate unit with respect to rates of pay,
wages , hours of work, and other conditions of
employment:
All cleaning maintenance employees em-
ployed by Respondent at the RCA Corpora-
tion facility in Burlington, Massachusetts,
but excluding all office clerical employees,
professional employees, guards and supervi-
sors as defined in Section 2(11) of the Act.
BOSTON-NEEDHAM
INDUSTRIAL CLEANING
Co., INC.
DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN , Administrative Law Judge: Pur-
suant to a charge filed by Building Service Employees'
International Union, Local 254, AFL-CIO (the Union), on
January 4, 1974, a complaint was issued on February 28,
1974, against Boston-Needham Industrial Cleaning Co.,
Inc. (Respondent), alleging that since January 4 Respon-
dent has violated Section 8(a)(5) and (1) of the Act' by
refusing to recognize and bargain with the Union as the
exclusive collective-bargaining representative of Respon-
dent's cleaning maintenance employees working at an
RCA facility in Burlington , Massachusetts . Respondent
concedes its refusal to bargain but denies that it was or is
under any obligation to recognize or bargain with the
Union.
Pursuant to due notice , a trial was held before me in
Boston , Massachusetts , on April 8 and 9, 1974. All parties
were represented by counsel and were afforded full
opportunity to be heard, to present oral and written
evidence , and to examine and cross -examine witnesses.
The parties waived oral argument and have all filed
posttrial briefs.
I National Labor Relations Act, as amended (62 Stat 136, 73 Stat. 519,
29 U S C Sec. 151 el seq )
1. PRELIMINARY FINDINGS
The complaint alleges , the answer admits, and I find
that:
At all times material herein Respondent, a Massachu-
setts corporation with its principal office and place of
business in Needham, Massachusetts, has been engaged in
the business of providing cleaning and maintenance
services to business establishments. In the course and
conduct of its business Respondent annually provides
cleaning and maintenance services valued in excess of
$50,000 to businesses directly engaged in interstate
commerce. Respondent is now and at all times material
herein has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. The Issue
Through the end of 1973, the RCA plant in Burlington,
Massachusetts, was covered by a cleaning maintenance
contract with Sanitas Services of Massachusetts, Inc.
(Sanitas), which was a party to a collective-bargaining
agreement between Maintenance Contractors of New
England, Inc. (the Association) and the Union covering all
janitorial employees in Massachusetts of the Association's
members. Toward the end of December 1973, Respondent,
not a member of the Association and not a party to any
collective-bargaining agreement, obtained the contract for
cleaning the RCA facility commencing January 2, 1974.
Respondent, which has a total of about 175 employees,
began performance under its RCA contract with approxi-
mately 30 regular employees, of whom around 20 had been
working for Sanitas at the RCA installation. On January 4,
1974, the Union demanded that Respondent recognize and
bargain with the Union for the janitorial employees at
RCA. Respondent rejected the demand.
The ultimate question to be decided is whether Respon-
dent was legally obligated to recognize the Union as the
bargaining representative of its employees regularly work-
ing at the RCA facility. All the parties take as their point of
departure the question whether Respondent is a "succes-
sor" to Sanitas. If Respondent is held to be a successor, it
must then be determined whether certain "foremen" and
full-time floor waxers should be included within the
bargaining unit.
B. The Facts
Apparently for a considerable length of time Sanitas had
the contract for janitorial and cleaning services at the RCA
2 Transcript corrected by an Order issued simultaneously herewith
BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 31
facility in Burlington , Massachusetts. Sanitas employs a
total of some 300 persons .3 As of the end of December
1973, Sanitas had working at the RCA installation 7 full-
time employees (apparently daytime workers), 30 part-time
employees (working around 3 or 4 hours a night, Monday
through Friday), 5 persons designated as "foremen," and 1
overall "supervisor," namely, Robert Barnett.
As a member of the Association, Sanitas was signatory to
a collective-bargaining agreement with the Union covering
"employees engaged in the Contract Building Cleaning
Industry, wherever employed in [Massachusetts] perform-
ing janitorial services." Collectively the members of the
Association have around 3,000 employees. The collective-
bargaining agreement included standard 30-day union
security and dues checkoff provisions. Sanitas records
show that as of December 28, 1973, 31 of its employees at
the RCA Burlington facility were actually members of the
Union. Testimony established that three additional part-,
time employees had been hired within the preceding 30
days and thus had not as yet been designated as union
members on the Company 's records .4
Respondent has about 150 to 175 employees and
performs contract janitorial services at some 60 locations.
Toward the end of December, RCA and Respondent
executed a contract calling for Respondent, inter alia, to
provide a full-time overall supervisor, plus the following
personnel Monday through Friday: 3 porters for 8 hours, 1
matron for 8 hours, 1 day foreman for 8 hours, 26 night
cleaners for 3 hours, and 4 night foremen for 3 hours.
Thomas P. O'Riordan, Respondent's president, treasurer,
and apparently sole owner, testified, credibly and without
contradiction, that this portion of the agreement was orally
modified so as to require only that Respondent provide the
total specified number of hours per week, with discretion in
Respondent to distribute the hours and work as it deems
advisable. RCA pays for the services on a per-hour basis.
Francis H. Newman, Jr., union business agent, testified
that he first learned on December 21, 1973, that Respon-
dent was going to replace Sanitas as the cleaning
contractor at the RCA installation. He thereupon visited
the plant and had all the employees sign new union
authorization cards "for the purpose of collective bargain-
ing" and "so that we would know that everybody had
signed the union card, in case we had to come to the
Board." Newman informed the employees that Respon-
dent was "a non-union company" and that the employees
"would have a problem of getting a job with" Respondent.
He instructed them to call Respondent's office and apply
for jobs. As a result of such calls, some 20 Sanitas
employees were hired by Respondent to continue on the
jobs they had been performing. Respondent hired other
employees who applied for jobs in response to newspaper
advertisements that ran for 2 weeks. All employees were
"cleared" by RCA.
3 There is no direct evidence as to this figure in the present record
However, in Nova Service Company, 213 NLRB No. 14, Administrative Law
Judge Ordman found that Sanitas has "over 300 employees" as of
November 1973 There is no reason to question that figure.
4 As previously noted , five persons were listed as "foremen " Although
the status of so-called "foremen" was litigated, that issue is pretermitted by
the conclusion reached herein . Accordingly the relevant evidence is not
discussed
Donald Coming, Respondent's general manager , did all
the employee interviewing and hiring. Each of the former
Sanitas employees who applied for work with Respondent
said that he was calling at the Union's suggestion . Corning
told each of them that Respondent was nonunion and the
job would be so operated. According to Corning, such
applicants replied that they did not care whether the job
was union or not. Both Corning and O'Riordan conceded
at the hearing that they knew that Sanitas was a union
employer. Corning also testified: "I wouldn't have hired
[former Sanitas employees] if I felt that they were union,
that I was going to go through this hassle. I could get
plenty of people . I was doing this as a favor. They're all
college boys; they needed a job." He also testified: "We
told them when they called we were a non-union company.
We didn't hide anything."
When Respondent took over on January 2, Barnett,
Sanitas' supervisor , was replaced by Edward Sheaff. Above
Sheaff was Corning as general manager, which position
had had no counterpart in the Sanitas operation.5
Respondent's operating methods appear to have been
substantially the same as those of Sanitas, with one
significant exception. Whereas Sanitas had had approxi-
mately 30 to 32 regular part-time employees working nights
at the RCA facility, Respondent reduced the number of
regular part-time night workers to an average of about 25.
Their services are supplemented, on an irregular basis, by
those of so-called "waxers" or "spares." The waxers or
spares are employees who work out of Respondent's
central office in Needham. Respondent employs some 12
to 14 waxers, who, generally in teams of 3, travel in
company trucks to various locations serviced by Respon-
dent. The primary function of these full-time employees is
to wax floors, but they also are dispatched to fill in for
absentees on an ad hoc basis as needed at various
locations. Some so-called waxers or "spares" are regularly
assigned to specified locations but, unlike the regular part-
time workers, they serve at more than one location. The
waxers or spares , as a class, receive higher wage rates than
do the regular employees and are guaranteed 50 hours'
work per week if they want it .6 Waxers are dispatched to
locations on an availability basis , with the result that the
waxers who work at the RCA Burlington establishment
differ from time to time . The evidence in the record is
insufficient for any accurate estimate of the relative
amounts of time worked by the regulars and the waxers at
the RCA facility. Further, even precisely presented records
for the period covered would not be entirely helpful, since
for the first few weeks waxers were used extensively for the
purpose of making time studies of the entire operation. In
testifying, O'Riordan indicated that in the main the waxers'
work would probably be largely concentrated toward the
end of the week.
As previously stated, on or about January 4, 1974,
5 Respondent also had three persons classified as "foremen," as
contrasted to Sanitas ' five . See fn 4
6 Although O'Riordan said the difference in wage rates reflects the
difference between full-time and part-time workers , this does not appear to
be entirely so It appears that Respondent has some part -time "spares." And
its five or six daytime "regular" employees at the RCA facility work
fulltime, i.e., 8 hours a day, Monday through Friday
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent received the Union's formal demand for
recognition. Respondent rejected the demand, apparently
without stating any reason for the rejection.
The evidence also establishes that Respondent's wage
rates differ from those of Sanitas. While the waxers receive
more than the rates provided in the Association contract,
Respondent's "regular" employees receive less than the
union rates. The complaint originally alleged an unlawful
unilateral reduction of wages and benefits, but that
allegation was deleted by amendment at the outset of the
hearing
At the hearing Respondent introduced into evidence an
antiunion declaration signed by 29 persons, apparently all
regular employees of Respondent at the RCA Burlington
plant. It was received by Respondent (and a copy by the
Board) around the middle of March 1974. However,
Respondent does not now rely on that petition or any other
evidence of employee opposition to the Union as support
for Respondent's refusal to bargain.
Discussion and Conclusion
All the parties have presented as the first question to be
decided whether Respondent is a "successor" to Sanitas as
the employer of the cleaning personnel at RCA Burlington
facility.7 A negative answer to that question will end the
matter, since the complaint does not allege any basis other
than successorship for a bargaining obligation. In many
situations resolution of the successorship issue might well
depend in substantial part on the appropriateness of the
"successor" bargaining unit claimed.8 However, as set
forth below, under the particular facts here presented, the
successorship issue can be decided without resolution of
the bargaining unit issues litigated at the heanng.9
Although the Board has in numerous cases set forth
broad, general criteria for determining "successorship," the
decision in each case must be made on the basis of the
"totality" of the particular facts, with no single element or
group of factors in itself decisive. Howard Johnson Co. v.
Detroit Local Joint Executive Board, etc., supra; Radiant
Fashions, Inc.," 202 NLRB 938 (1973). Even with such
particularized consideration, Board decisions are not
always easily reconcilable. See JAM [Atlantic Technical
Services Corp.] v. N.L.R.B., 498 F.2d 680, fn. 3 (C.A.D.C.,
1974).
It would serve no useful purpose to analyze in detail a
great many Board decisions because one, Lincoln Private
Police, Inc., 189 NLRB 717 (1971), is virtually on all fours
r In many situations this somewhat glib formulation of the issue would
be unproductive or inadequate Cf Howard Johnson Co v. Detroit Local
Joint Executive Board, Hotel & Restaurant Employees, ei al, 417 U S. 249, in
9(1974)
1 Cf N LR B v Burns International Security Services, 406 U S 272, 280
(1972), Border Steel Rolling Mills, 204 NLRB 814 (1973).
9 These concerned the inclusion in or exclusion from the unit of the
waxers and the so-called "foremen "
10 We do not here reach the question whether it is essential for
"successorship" that employees of the old employer constitute a majority
(rather than only a substantial part) of the bargaining unit claimed under
the new employer Cf. Spruce Up Corporation, 209 NLRB 194 (1971)
ii As previously noted, the status of two or three "foremen" employed
by Respondent was litigated at the hearing . Without deciding that issue, it
can be said that , even if they were "supervisors" rather than "employees"
within the statutory definitions , they clearly were not management-level or
with the present case. There, as here, the new employer
obtained a contract covering one of many installations
serviced by the prior employer and the location in question
constituted a relatively small (though not entirely insub-
stantial) part of the new employer's total operations. In
both cases the alleged "successor" was a smaller company
than the "predecessor." In both cases a majority of the
members of the claimed single-location bargaining unit
had previously been employed by the former employer 'O
but there was no continuity of major supervision.li As was
the fact in Lincoln, it appears here that there was no
transfer of equipment, uniforms, or other assets from the
old to the new contractor. In each case there was evidence
that when the new employer took over, it knew that the
prior employer's workers were unionized, although the new
employer may not have known the details of the governing
collective-bargaining agreement . The only apparent differ-
ence of possible significance between the two cases is that
in Lincoln the union had been certified as the representa-
tive of the prior employer's employees whereas there is no
evidence here that the Union had ever been certified as the
representative of Sanitas' employees. But the presence or
absence of certification would not be determinative of
successorship as such. Makela Welding, Inc. v. N.L.R.B.,
387 F.2d 40 (C.A. 6, 1967); Columbus Janitor Service, 191
NLRB 902, 903 (1971). If anything, the absence of
certification would render the Lincoln nonsuccessorship
ruling a fortiori proper in the present case, where the
Sanitas employees were worked under a union-security
clause and, so far as appears, never affirmatively expressed
their union preference. 'See Zim's Foodliner, Inc. v.
N. L. R. B., 495 F.2d 1131 (C.A. 7, 1974) (dissenting
opinion); Atlantic Technical Services Corp., 202 NLRB 169
(1973), enfd. 498 F.2d 680 (C.A.D.C., 1974). Thus, on the
authority of Lincoln Private Police, Inc., it is here found
that Respondent is not a successor of Sanitas.
The complaint does not allege any independent unfair
labor practices which might warrant the issuance of a
bargaining order in the absence of a successor 's bargaining
obligation. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969).12 Accordingly, there is' no need to decide
whether the Union represented a majority in an appropri-
ate unit.
The foregoing conclusion accords with the decision of
Administrative Law Judge Ordman in Nova Service
Company, 213 NLRB No. 14 (1974), involving another
company which, like the present Respondent, was awarded
a contract for services previously performed by Sanitas.
high-echelon personnel . No high-level supervisor for Sanitas was retained
by Respondent
12 O'Riordan testified that he would not have hired any former Sanitas
employees if he "felt that they were union ." Had he refused to hire for that
reason, Respondent would have violated Section 8(aX3) N LR. B V Burns
International Security Services, 406 U.S 272 , 280, fn 5 (1972), Columbus
Janitor Service, supra, 191 NLRB at 903 (1971); Greengate Mall, Inc, 209
NLRB 37 (1974) But there is no allegation or evidence of such
discriminatory conduct
Since the complaint does not allege any such violation , no opinion is here
expressed as to whether Respondent committed unfair labor practices by
O'Riordan 's testimony , given in the presence of employees , or by in effect
conditioning the employment of former Sanitas employees on their
accepting the "fact" that Respondent was "a non-union company" and was
"not interested" in unions
BOSTON-NEEDHAM INDUSTRIAL CLEANING CO.
The General Counsel and the Union seek to distinguish
Nova on the ground that there the alleged "successor" had
acquired the contract covering only part of one installation
formerly serviced by Sanitas whereas in the present case
Respondent obtained the contract for the entire RCA
facility at Burlington. First , it should be observed that
there is no similar factual difference between the facts in
the present case and those in Lincoln Private Police, upon
which Administrative Law Judge Ordman based his
decision in Nova. Neither the General Counsel nor the
Union attempts to distinguish Lincoln . Second , while it is
true that Respondent here obtained a contract for servicing
the entire RCA Burlington installation , the General
Counsel and Union would in effect sever the floor waxing,
a substantial part of the work , from the rest of the
operation. By excluding the waxers from the appropriate
bargaining unit , the General Counsel and the Union would
limit Respondent 's "successorship" obligation to only part
of the contract , 13 thus bringing the present case into even
closer congruence with Nova. 14 While the presently
13 The General Counsel and the Union apparently concede that
Respondent is under no bargaining obligation if the waxers are included in
the bargaining unit, with the result that former Sanitas employees do not
constitute a majority of the unit members. But see the contrariety of views
in Spruce Up Corporation, supra.
14 There is now pending before the Board a motion to reopen the record
33
unreviewed decision in Nova [Board's decision issued
August 28 , 19741 is not controlling as precedent in the
instant case, it is persuasive . The nonsuccessorship finding
there, as here, is compelled by the Board's controlling
decision in Lincoln Private Police.
The nonsuccessorship conclusion finds reinforcement in
the Supreme Court's restrictive interpretation of the
successorship concept in Howard Johnson Co. v. Detroit
Local Joint Executive Board supra, issued after Administra-
tive Law Judge Ordman's decision in Nova
CONCLUSION OF LAW
Respondent has not violated Section 8(aX5) and (1) of
the Act, as alleged in the complaint.
[Recommended Order for dismissal omitted from publi-
cation.]
in Nova for the receipt of evidence that , contrary to Administrative Law
Judge Ordinates finding, Nova actually obtained the cleaning contract for
the entire bank facility there involved . With no attempt to predict the
Board's action on the pending motion in Nova, it is here again observed that
Lincoln involved the transfer of a contract for servicing an entire
installation.