Environmental Maintenance Solutions

National Labor Relations Board - Administrative Judge Opinions

Aug 28, 2008

02-CA-038340 (N.L.R.B. Aug. 28, 2008)

JD(NY)-34-08
Pleasantville, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
ENVIRONMENTAL MAINTENANCE SOLUTIONS, INC.
Employer
AND Case 2-RC-23211
LOCAL UNION 966, INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
Petitioner
ENVIRONMENTAL MAINTENANCE SOLUTIONS, INC.
AND Case 2-CA-38340
PEDRO VALENZUELA CASTILLO, An Individual
Olga C. Torres, Esq., Counsel for the General Counsel
Margit Reiner, Esq., Representative of the Regional
Director
Stuart Weinberger, Esq., (Goldberg & Weinberger),
of New York, NY, for the Employer-Respondent
Christopher Gant, Esq., (Kennedy, Jennik
& Murphy, P.C.), of Cresskill, N.J., for the Petitioner
DECISION
Statement of the Case
ELEANOR MACDONALD, Administrative Law Judge: This case was heard in New
York, N.Y., on June 10, 11, 12, 13 and 18, 2008. The Complaint alleges that Respondent, in
violation of Section 8(a)(1) and (3) of the Act, discharged Jorge Donoso and Pedro Valenzuela
for concerted and union activities and informed employees that Donoso and Valenzuela were
discharged because they tried to bring a union into the company. Respondent denies that it has
engaged in any violations of the Act.1 An Order Consolidating the unfair labor practice case

1At the hearing and in its Brief, Respondent objected, on the basis of Section 10(b) of the
Act, to the granting of the General Counsel’s motion to amend Paragraph 10, the conclusory
paragraph of the Complaint. Paragraph 7 of the Complaint alleges that Respondent discharged
employees because they engaged in concerted activities and because it believed that they
engaged in union activities. Paragraph 8 alleges that Respondent informed employees that
employees were discharged because they tried to bring a union to the company. Paragraph 9
alleges that Respondent discriminated against employees in violation of Section 8(a)(1) and (3)
of the Act based on conduct described in Paragraph 7. As originally drawn, paragraph 10
alleged a violation of Section 8(a)(1) of the Act based on Paragraph 8. This was amended to
Continued
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with the representation case provided for the determination of challenged ballots and objections.
On the entire record, including my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties on July 24, 2008, I make the following2
Findings of Fact
I. Jurisdiction
Respondent, a New York corporation with an office and place of business located at 199
Tompkins Avenue, Pleasantville, New York, is engaged in the provision of data center cleaning
services to commercial customers. Annually Respondent provides services in excess of
$50,000 to its commercial customers in New York State which customers themselves are
directly engaged in interstate commerce. Respondent admits, and I find, that it is an employer
engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act, and that Local
Union 966, International Brotherhood of Teamsters is a labor organization within the meaning of
Section 2(5) of the Act.
II. Alleged Unfair Labor Practices
A. Background
Mark Vacirca is the president of Respondent. Chris Vitale is the vice president. Marisa
Pawell is the operations manager. Xavier Zapata was the operations manager during the time
relevant to the instant case.3
The company’s business consists of offering specialized cleaning services for computer
locations. A typical job involves dusting and wiping down computer equipment, lifting floor tiles
to clean spaces under the floor, mopping, vacuuming, buffing floors and washing windows. The
employees at issue herein, called cleaning technicians, do not have fixed work schedules; they
work jobs that may begin in the morning, afternoon or evening, and they work weekdays and
weekends as the company requires. The technicians report for work to the facility, usually
referred to as the warehouse, where they load vans with the required equipment and supplies
and then drive to work locations in New York State and out of State.
The unrebutted testimony of Pawell shows that technicians are supposed to bring their
food when they report to work, that they are supposed to eat at the work location and they are
not to leave the job site until the work is completed.
The witnesses described various ways in which technicians can learn when they are
_________________________
allege that the conduct described in Paragraphs 7 and 8 violated Section 8(a)(1) of the Act.
Respondent does not allege that the charges herein were filed more than 6 months after the
alleged occurrence. Respondent’s objection to the amendment of Paragraph 10 is without
merit.
2 The record is hereby corrected so that at page 7, line 14, and thereafter in the record the
numbers 881 should read “8(a)(1)”; at page 190, line 15, the question should read “and were
there any obstructions”; at page 323, line 15 and thereafter, the correct spelling of the name is
Xavier Zapata; page 326, line 25, should read “it would start on the 24th, ending the 29th”; page
328, line 2 and 3, the correct date is June 29th.
3 Zapata is also referred to as Jamal and Eusebio.
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scheduled to work. While present at the warehouse a technician can look at the schedule for
the next day and see whether his or her name is on the schedule and for what time and what
jobs. Sometimes management will call the technician at home or on a cell phone and leave a
message with a reporting date and time for work; these calls are usually placed by Pawell or
Zapata. If an employee asks to be taken off the work schedule for a number of days he must
call in and request a job when he is ready to accept more work.
B. Concerted Activities
Jorge Donoso
Jorge Donoso began working for the company in December 2006. Donoso testified that
he was paid the minimum wage for travel time from the warehouse to the work locations and
that he received his regular hourly wage for actual working time. In April or May 2007 Donoso
asked Zapata to explain the pay system and a meeting ensued where he discussed his pay with
Zapata, Vacirca and Pawell. The discussion showed that Donoso’s pay check was short
$23.60. According to Donoso the company offered him a check for $40 which he refused. As a
result of this meeting Vacirca agreed that Donoso would be paid $9.50 per hour for both travel
and work time.
Donoso said that he discussed with his co-workers the fact that he believed the
company had an unjust method of paying its employees and he told them about the agreement
with Vacirca and showed them his paycheck. At some point Pawell called him to the office and
asked why he had shown his paycheck to other employees. At some unspecified time Donoso
called Local 32BJ and left his name and number with a secretary. No one from Local 32BJ
returned his call so Donoso and co-workers Pedro Valenzuela and Odalis Franco decided to
write a petition requesting the company to adopt better terms and working conditions. The
petition was drafted in Spanish and Franco translated it into English. Donoso, Valenzuela and
Franco signed the petition. During their meal breaks and other breaks the three employees
showed the petition to their fellow employees and solicited their signatures. Donoso placed this
activity as occurring two months before his last day of work which he said was between June 20
and 23, 2007. Thus, the preparation and circulation of the petition would have taken occurred in
April 2007.
Odalis Franco has been employed by Respondent since 2001. Franco testified that he
typed the petition from a handwritten sheet given to him by Donoso. Franco brought the petition
to work so that others could sign it. After he had collected some signatures he gave the petition
to Valenzuela. Franco placed these events in the month of June 2007. Franco testified that
after he stopped seeing Donoso and Valenzuela at work he telephoned Donoso to ask why he
was not working and to give him the petition.
Donoso testified that his last day of work was sometime between June 20 and 23, 2007.
Donoso stated that when he came back to the warehouse after completing his job that day his
name was not on the work order for the next day. After this, Donoso called Zapata and asked
whether he had any work the following day. Zapata replied that there was no work. The next
day, Donoso testified, he called Zapata again and asked whether he had any work and again
Zapata replied that there was no work for Donoso. Donoso testified that he did not telephone
Zapata on the weekend. Donoso stated that he called the company again and asked Pawell
whether there was any work for him. By this time, according to Donoso, he had not worked for
four days and he had never gone four days without work in the past. Pawell told Donoso that
there was no work for him. Donoso stated that he never received any phone calls or messages
from the company asking him to return to work. He said that he did not quit or abandon his job.
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Two weeks after his last day at work Pawell called him and asked that he return his uniforms to
the company.
Zapata testified that Donoso had been scheduled to work on Friday June 22 but that the
job was cancelled. Zapata called all the employees who had been scheduled to go out on that
job and told them not to come in that day.4 Donoso was not scheduled to work on Saturday or
Sunday, June 23 and 24, because the company was slow that weekend. Zapata identified
records which show that on June 23 there were 29 technicians scheduled to work and on June
24 there were 26 technicians on the schedule. In contrast, on Saturday June 9 there were 42
technicians at work and on Sunday June 10 there were 38 technicians at work. On Saturday
June 16 there were 44 technicians at work and on Sunday June 17 there were 39 technicians at
work. On Saturday June 30 there were 36 technicians scheduled to work and on Sunday July 1
there were 30 technicians on the schedule.
Zapata stated that if an employee is not scheduled to work on a Friday but if he is on the
schedule for Saturday, Sunday or Monday he would be called by the company and informed
when he should report to work. Zapata testified that on Monday June 25 Pawell informed him
that Donoso had called her and said he was going to claim unemployment because he was not
given a job on a slow weekend. Zapata testified that he works Saturdays and sometimes he
works on Sundays. Pawell does not work on weekends.
Pawell testified that on Monday June 25 Donoso telephoned her and asked why he was
not on the schedule. Pawell said that she wanted to speak to him. Donoso said he would go to
the unemployment office. Pawell said that she tried to talk to Donoso but he hung up. Pawell
testified that she did not want Donoso to collect unemployment. She had not fired him and he
was still working for the company. However, Pawell acknowledged that during this conversation
she did not inform Donoso what his future work schedule was. Pawell stated that after the
phone call from Donoso she was upset. Donoso was a good worker; he could have grown in
the company, he spoke English, he drove, he was mature and he knew how to use the buffers.
Donoso had many complaints about his job; he wanted night differential pay and he did not like
the work schedule at the company. Pawell said that she wanted to utilize him as much as
possible but it was a problem for him. After speaking to Donoso, Pawell sent the following e
mail to Chris Vitale and Mark Vacirca:
Spoke with Jorge Donoso. He called and I had answered the phone he asked why he
wasn’t on the schedule to work this weekend and I explained to him that I needed to
speak with him. He said I will go for employment, I gather he meant I will go and apply
for unemployment. I have explained to Xavier now that he said that we will wait until he
goes and when they unemployment agency contacts me and asks me if I have work for
him I will let them know that he has a job here, that way he cannot collect. This will most
likely take a couple of weeks by then he will probably be to embarrassed to come back
and if he does I will then find ways and reasons to get rid of him without having him
collect unemployment. (No grammatical or spelling corrections have been made to the
original.)
On July 5 Pawell asked her assistant Joe Delgado to telephone Donoso to find out if he
would be working if he were placed on the schedule. Delgado sent Pawell an e mail stating that
he had telephoned Donoso and left a message on his answering machine “saying to please

4 The company produced the document for that job showing that Donoso had been on the
schedule but that the work was never done.
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come and speak with Maritza (sic) otherwise to return the uniform.” Pawell denied that she fired
Donoso because he engaged in union activities.
Shortly after this day, Vitale asked Pawell to recommend a worker for a friend’s company
and Pawell recommended Donoso for the other job.
Donoso spoke to Valenzuela, Franco and other employees at the end of June. On July
3, 2007 Donoso accompanied Valenzuela to the Regional Office to file an unfair labor practice
charge against the company.
Donoso began working for another company on July 27, 2007. He denied that
Respondent helped him get that job. Donoso said his new employer called and offered him a
job. When asked how his new employer had obtained his name Donoso said that he did not
know.
Zapata testified that he did not know about the petition prepared by Donoso, Valenzuela
and Franco. Pawell testified that she first heard about an employee petition during the
investigation of the instant case.
Pedro Valenzuela
Pedro Valenzuela worked for Respondent from 2000 until 2007. He described himself
as a “technician and supervisor.”5 Valenzuela testified that he and others created a petition
because they had no benefits on the job, no personal days, no sick days, no fixed schedule and
they had to work every weekend and could not spend time with their families. Franco typed the
petition and Valenzuela signed it. Valenzuela asked others to sign the petition and after
collecting about seven or eight signatures he gave it to Donoso. Valenzuela placed this activity
in mid-May 2007.
Valenzuela received a written warning on June 8, 2007 for an incident that occurred on
June 1. Valenzuela was the supervisor for a cleaning job in a doctor’s office. Instead of eating
in the office, Valenzuela took his crew to a Spanish restaurant and then he stopped in a Sam’s
Club. Valenzuela testified that when Pawell found out about this she asked him why he had left
the premises. Valenzuela told her that there was no lunchroom in the facility and it was not
hygienic to eat lunch on the floor of a doctor’s office. He said he stopped to use the restroom in
Sam’s Club. Valenzuela’s pay was cut by 50 cents per hour for the next three months as a
result of this incident.
Valenzuela testified that his last day of work was Wednesday, June 27, 2007. He had
asked to be off the schedule on June 28 and 29. According to Valenzuela, on Friday June 29
he called Freddy and asked for his schedule for Saturday and Sunday.6 Freddy said there was
no work for him. Valenzuela asked about Monday but Freddy said he was not on the schedule
for Monday. Then Freddy said that Zapata and Pawell wished to speak to Valenzuela and that
he should telephone on Monday. On Monday July 2, Valenzuela stated, he called the office and
spoke to Freddy who informed him that he had no work on Tuesday. Valenzuela asked to
speak to Zapata or Pawell but Freddy said they were in a meeting.
Valenzuela testified that on Monday July 2 Franco telephoned him and reported that

5 The supervisory issue relating to Valenzuela will be described below.
6 Valenzuela identified Freddy as the operations manager.
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Marisa was “saying in the office” that Valenzuela had been terminated for “doing things against
the company.” On Tuesday July 3 Valenzuela went to the Regional Office to file a charge
against Respondent. He was accompanied by Franco and Donoso. The charge was sent by
regular mail to Respondent on July 5.
Franco testified that he stopped seeing Valenzuela at work and that “a few days had
passed” when the two spoke by cell phone and Valenzuela said he did not know why the
company was not calling him back to work. Franco further testified that in the “beginning of July
of 2007” and the day before he accompanied Valenzuela to the Regional Office to file the
charge, he spoke to Pawell in the parking lot following his return from completing a job.
Employees Manuel Galarza, Christina and Rosa Galarza were present. According to Franco,
Pawell said that a few years ago a group had brought the Department of Labor to the job and
things got worse. Franco quoted Pawell as saying that was the reason Valenzuela and Donoso
were no longer working at the job, because they were bringing the union and the union is bad
and the union just wants to get money from workers. Franco said that Pawell explained that
Valenzuela did that because he was angry at receiving a warning. Franco testified that a few
minutes later he called Valenzuela and reported this conversation, saying he knew why
Valenzuela had been fired. Franco stated that after Valenzuela stopped working for the
company he and Valenzuela were active in trying to organize the company for Local 966.
Valenzuela testified that on July 4 Pawell telephoned him and asked him to return his
uniforms. Valenzuela stated that when he asked why he was terminated Pawell said “return the
uniforms” and then she hung up. Valenzuela denied that he had quit his job.
Zapata testified that Valenzuela had requested days off on Thursday June 28, Friday
June 29 and Saturday June 30. Respondent’s payroll documents support this testimony and I
credit it. Zapata recalled that Valenzuela telephoned him on Friday to ask about the schedule
for days when he was available. Zapata told Valenzuela to report to the warehouse on Monday
July 2 at 9:30 am. Zapata told Valenzuela he had a lot to do in the warehouse; Valenzuela
would help him with that work and they would speak to Marisa about his work schedule. Zapata
testified that Valenzuela did not come to work on July 2.
Valenzuela did not get a written warning for failing to report to work on July 2. Pawell
testified that it is customary for the company to issue warnings to employees who are “no call/no
show.” Pawell stated that she could not give Valenzuela a warning because he never called her
and he never came in after July 2. Pawell wanted to speak to Valenzuela because he had
requested multiple days off and she wanted to ask about his availability to work as a supervisor.
Valenzuela was not put back on the schedule after July 2 because the company policy after
employees request time off is to put them on the schedule when they call and ask to work.
Pawell testified that she asked Delgado to telephone Valenzuela to check on his status
and see if he intended to come to work. Valenzuela did not answer the calls or any messages
left for him.
Both Pawell and Zapata testified that Freddy Cisneros was responsible for telephoning
employees until April 2007 when he was fired. Respondent’s records show that Cisneros was
terminated on April 9, 2007.
Zapata testified, and Respondent’s payroll records show, that Franco was not at work on
Monday July 2, 2007. Pawell denied speaking to Franco about Donoso and Valenzuela on July
2 and she stated that she “never” discussed Donoso and Valenzuela with Franco. Pawell
testified that the company was closed on July 4 and she did not speak to Valenzuela that day.
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Pawell denied that she fired Valenzuela for engaging in union activities.
C. Supervisors
Every job has a supervisor who is in charge of the work. Valenzuela was often assigned
to be the supervisor of a particular cleaning job. On these occasions he was not paid more than
his regular technician wage rate and he also performed the same work as the technicians.
Sometimes the supervisor is also assigned to drive the van to the job locations. All the
witnesses agreed that the supervisor tells the technicians what room to work in and what tasks
to perform.
Zapata testified that a supervisor is responsible for the job and he tells the technicians in
what order the work is to proceed. The supervisor inspects the premises after the job is finished
and asks the client whether there is anything more he would like done. Valenzuela stated that if
a technician did not perform a job to his liking then he would do it over himself or he would ask
the technician to do it over.
The company contracts with the client for the specific work to be performed and the type
of work is entered on a form that is given to the supervisor. The form may state which rooms
and equipment are to be cleaned and it may state that certain equipment should not be cleaned.
The form may state which equipment is to be brought to the job. In addition, the form may have
specific directions such as the requirement to replace tiles in exactly the same position, or
directions not to plug anything into the floor, or to use a minimum amount of water. The form
may specify that certain rooms are to be waxed and that rugs are to be shampooed later. In
addition, the supervisor may vary a specified order of work if a client is using a part of the
premises thereby denying access to an area at a certain time. Further, when the work crew
arrives at the job, the client may ask the supervisor to do additional work and the client may ask
that certain work be done first. If neither the work form nor the client provides instructions as to
the order in which tasks should be performed, then the supervisor decides in what order to do
the work.
The supervisor decides who does what job at the work site. Valenzuela testified that he
would not give heavy work to women. He would not assign a new employee to a job that
requires extra care.
The supervisor does not hire, fire or promote technicians. He does not discipline
employees. He does not approve overtime. If a job is taking longer than provided on the
schedule the supervisor must call the office for instructions.
Supervisors do not recommend discipline for technicians. However, they are given
evaluation forms to fill out for new employees and review forms for long term employees. On
one occasion, according to Pawell, an employee was discharged because his evaluations were
unsatisfactory and the supervisors said he was not doing enough.
D. Discussion and Conclusions
In deciding this case I must apply Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). The Board has recently explained the
process for finding unlawful motivation in the discharge of employees as follows
Wright Line is premised on the legal principle that an employer’s unlawful motivation
must be established as a precondition to finding an 8(a)(3) violation. In Wright Line, the
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Board set forth the causation test it would henceforth employ in all cases alleging
violations of Section 8(a)(3). The Board stated that it would, first, require the General
Counsel to make an initial “showing sufficient to support the inference that protected
conduct was a ‘motivating factor’ in the employer’s decision. If the General Counsel
makes that showing, the burden would then shift to the employer to demonstrate that the
same action would have taken place even in the absence of the protected conduct.” 251
NLRB at 1089. The ultimate burden remains, however, with the General Counsel.
To establish his initial burden under Wright Line, the General Counsel must establish
four elements by a preponderance of the evidence. First, the General Counsel must
show the existence of activity protected by the Act. Second, the General Counsel must
prove that the respondent was aware that the employee had engaged in such activity.
Third, the General Counsel must show that the alleged discriminatee suffered an
adverse employment action. Fourth, the General Counsel must establish a motivational
link, or nexus, between the employee’s protected activity and the adverse employment
action. Tracker Marine, L.L.C., 337 NLRB 644, 646, (2002).
The General Counsel has met the first element set forth by the Board. The
uncontradicted evidence shows that Franco, Donoso and Valenzuela prepared a petition
demanding improved working conditions and that they solicited signatures on the petition during
meal breaks and other breaks. Further, Donoso called Local 32BJ at an unspecified time but
that union did not return his call.
The General Counsel has not satisfied the next element set forth by the Board. There is
no evidence that Respondent was aware of the preparation and circulation of the petition by
Franco, Donoso and Valenzuela.7 First, the testimony shows that the petition was circulated
during meal breaks and other breaks at work and no testimony indicates that solicitation of
signatures ever took place at the warehouse or in the parking lot. Second, I find that the
testimony about the supposed remarks by Pawell to the effect that Donoso and Valenzuela
were fired because they were bringing the Union to the company is not worthy of belief. Franco
testified that after he did not see Valenzuela at work for a few days he called the latter to ask
about this and Valenzuela replied that he did not know why he was not being called to work.
Since Valenzuela’s last day of work was June 27, and since Valenzuela had asked not to be
assigned any jobs on June 28, 29 and 30, Franco’s call must have been after June 30. If he
had called Valenzuela on the 30th, the answer would have been that Valenzuela had requested
the last few days off. Franco testified that after his conversation with Valenzuela he heard
Pawell make the remarks in the parking lot and then he called Valenzuela to say he now knew
why Valenzuela had been fired. Valenzuela testified that the day before the July 3 charge was
filed Franco telephoned him about Pawell’s alleged remarks. Franco also testified that Pawell’s
remarks took place the day before they filed the July 3 charge. I find that the testimony does
not admit of any other interpretation: both Franco and Valenzuela firmly place on July 2 the
Pawell remarks that Donoso and Valenzuela were fired because they were bringing the union to
the company. As shown above, Franco did not work on July 2. Pawell denies speaking to the
employees about Donoso and Valenzuela on July 2 or at any other time.
I find that the testimony about Pawell’s purported remarks on July 2 was crafted by
Franco and Valenzuela to sustain their claim that Donoso and Valenzuela were discharged
because Respondent believed that they were engaged in union activities. I find that this

7 General Counsel does not contend that Respondent was aware of Donoso’s call to Local
32BJ.
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testimony is not credible. I credit Pawell and I find that Pawell did not inform employees that
Donoso and Valenzuela were fired because they tried to bring a union to the company. Thus
there is no basis to find that Valenzuela and Donoso were discharged because Respondent
believed that they were bringing in a union.
I credit Zapata’s testimony that Valenzuela telephoned him on Friday June 29 and asked
for his work schedule. This would have been in accord with established company policy that
employees must call for work after they have requested time off. I credit Zapata that he asked
Valenzuela to come to the warehouse at 9:30 on Monday July 2 to help him in the warehouse. I
credit him that he told Valenzuela that on Monday they would speak to Pawell about his work
schedule. The record shows that Valenzuela did not report to work on July 2. I note that
Valenzuela testified that he asked Freddy Cisneros for work on Friday June 29 and Monday July
2. This testimony is patently false; Cisneros had been fired in April. Thus, it is clear that
Valenzuela’s testimony about the material facts relating to his employment is not credible. I
have grave doubts about all of Valenzuela’s testimony herein and I shall not credit it where it is
contradicted by more reliable evidence.
It follows that I do not find that Valenzuela was fired by the company. Rather the facts
show that on June 8 he was given a written warning and his pay was cut by 50 cents per hour
for three months. Valenzuela was given three days off at the end of June at his request. After
calling to ask for his schedule Valenzuela was told to report for work in the warehouse on July 2.
He was also told that Pawell would discuss his schedule on July 2. Valenzuela did not report to
work on July 2 and he did not telephone the company that day. The next day he filed a charge.
Thus, Valenzuela did not suffer an adverse employment action. The General Counsel has not
met the burden under Wright Line as to Valenzuela. Valenzuela did not report to work and he
abandoned his job.
Based on the discussion above, I find that there is no evidence that Respondent was
aware of Donoso’s participation in the drawing up and circulation of the petition. Because I have
found above that Pawell did not make the remarks about Donoso and Valenzuela attributed to
her on July 2, I further find there is no evidence Pawell believed that Donoso was bringing a
union to the company.
I credit Zapata that Donoso’s scheduled job on Friday June 22 had been cancelled by
the client and that Donoso was not scheduled on the weekend because work was slow. Pawell
testified, and I credit her, that when Donoso called on Monday June 25 she did not give him a
schedule; she only said she wanted to speak to him. Donoso said he was going to file for
unemployment and then he ended the phone call. It is clear that Donoso was not scheduled to
work that day. Pawell testified that she knew Donoso was dissatisfied with his schedule and his
pay and she wanted to speak to him. The e mail she sent to Vitale and Vacirca after Donoso
spoke to her about claiming unemployment is consistent with her claim that she did not fire him
and, indeed, that she wanted to speak to him before giving him any further work. The e mail
also makes clear that she would be just as happy to get rid of Donoso. However, I credit Pawell
that she asked her assistant to call Donoso on July 5 to see if he would come back to work.
Given General Counsel’s failure to show that Respondent had knowledge of Donoso’s
concerted activities or to show that Respondent believed Donoso was bringing in a union, the
General Counsel has not met the burden of showing that the failure to give Donoso any work on
June 25 or thereafter was due to any protected activity by Donoso. Donoso did not return to
work and he therefore abandoned his job with the company.
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III. Case 2-RC-23211
A. Background
The election was scheduled to take place on August 24 from 5 pm to 7 pm and on
August 25 from 5 am to 9 am. The appropriate unit is
All full-time and regular part-time cleaning technicians employed by the Employer at and
out of its facility at 199 Thompkins Avenue, Pleasantville, NY, but excluding all other
employees including office clerical employees, guards, professional employees and
supervisors, as defined in the Act.
There were approximately 58 eligible voters and 49 ballots were cast. Six voters cast
challenged ballots and 43 votes were counted. The Petitioner received 28 votes and 15 votes
were cast against a labor organization.
B. Objections
The Employer filed Objections to the election. A hearing was directed on the following
objections:
1. The observer for Local Union 966, IBT, talked to employees in the polling area,
including, but not limited to, as they waited to vote.
3. The Union, including through its observer and other employees, electioneered in the
polling vicinity.
4. Employees were allowed to loiter in the polling area.
6. The agent conducting the election for the NLRB arrived at the election on or about a
half an hour after the election was scheduled on August 25, 2007
7. The agent conducting the election for the NLRB left the balloting area on several
occasions during the election.
8. The agent conducting the election for the NLRB abandoned the ballot box when he
left the election area.
Evidence Concerning the Objections
Gerard Covello, the secretary-treasurer of Petitioner testified that he was present on
both days of the election.8 Covello was at the warehouse from about 4 pm on the first day of
the election. Before the start of the election the Board Agent discussed the conduct of the
election with Covello, Union observer Pedro Valenzuela, company controller Licia Albanese,
Employer consultant Lou D’Angelis, and Employer observer Carol Bufo.9 The group discussed

8 I credit Covello’s testimony. He had excellent recall of the events, he answered questions
on cross-examination in a cooperative manner, and he did not shade his testimony even where
he gave answers that were more favorable to the Employer than the Union.
9 Bufo has worked for the employer for nine years. She appears to know all of the
Continued
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the best locations for the ballot box and the ballot marking area.
The election was held in the company’s warehouse in an area close to the loading dock.
The group wished to find a private location where voters could mark their ballots. All the
participants agreed that the best location for voters to mark their ballots was the supply room.
This location was the best available but it was not ideal because other people would have to
enter the room to obtain supplies and equipment to load on the vans before leaving for a job or
to put away supplies and equipment that had been used on a job. The group agreed that the
situation had to be monitored and that the observers and the Board Agent would tell people not
to enter the supply room while a voter was actually inside and marking his ballot. A counter
located about 12 to 15 feet from the loading dock was chosen as the best place on which to put
the ballot box. The group considered whether to put the ballot box farther inside the warehouse,
and therefore farther from the loading dock, but the lighting was not sufficient and the inside
location would have been far from the supply room where the ballots were to be marked. Bufo
testified that she had suggested placing the ballot box farther inside the warehouse but the
Board Agent pointed out that from such a location he and the observers would not be able to
see the supply room where the voters would be marking their ballots.
Technician Carlos Hernandez testified that he returned from a job the first day of the
election. He tried to put his equipment back in the supply room but a gentleman told him that he
could not enter the room because the election was about to take place. That day Harry Ward
was Hernandez’ supervisor. Ward was upset that they were not permitted to place their
equipment back in the supply room. Hernandez was second in line to vote. The Board Agent
called him to vote and gave him a pen and a ballot. He was supposed to go into the supply
room to vote but “someone” said not to go inside the room because there were cameras in
there. Whoever said this to Hernandez explained that the company had put a camera in the
supply room so if he voted in there the company would be able to see how he voted. Instead of
marking his ballot in the supply room Hernandez marked it on a table just outside the supply
room. Hernandez knows of four employees who voted on this table. Hernandez did not see
how anyone voted. No one said anything to him while he was marking his ballot. Hernandez
thought that those waiting to vote after him were two or three steps from him while he was
voting. The marking of the ballots on a table outside the supply room was not the basis of any
objection herein.
Bufo testified that she and the Board Agent stopped people who attempted to go into the
supply room to get equipment and supplies while someone was actually in the supply room to
mark a ballot. About five times someone got through without her knowledge. Bufo did not
name any of the employees involved in these incidents. The only testimony concerning a
complaint by an employee relating to the voting involves Henry Ward. According to Bufo, Ward
objected that he was not able to cast a secret ballot. Ward voted on Saturday and at first he
said he was not going to vote out of annoyance at the confusion in the place. Bufo also said
that Ward “was having a fit” because everyone was speaking Spanish. Bufo told Ward that he
could not leave until “we finish this.” Ward complained to the Board Agent and the latter
assured Ward that he would make sure no one came in while he was voting. In the event, Ward
voted in the supply room and no one else entered while he was there. Ward did not testify
herein.
Bufo testified that there was never an occasion when two voters were marking their
ballots in the supply room at the same time.
_________________________
employees and to be familiar with their jobs.
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Bufo recalled that the ballot box was on a counter in plain view of the Board Agent and
the observers, all three of whom stayed close to the ballot box while the voting was going on.
The witnesses agreed that on the occasions during the election when the Board Agent used the
lavatory, the ballot box was taped up, signed and taken into the lavatory, and then returned
intact when the voting resumed.
Covello testified that the loading dock area where employees gathered both before and
after going out on their jobs was not part of the polling area. Covello said that people gathered
less than 10 feet from the polling area inside the warehouse. Bufo stated that some people
stood around in the voting area after they had voted because they were waiting to leave on a
job.10
The Board agent instructed the observers to limit their conversations with voters to
“hello” and “goodbye.” However, according to Bufo, Valenzuela did not seem to limit his
conversations. By the day of the election, Valenzuela had not been at work for some time and
he and the voters greeted each other. Some of these greetings were in Spanish and while Bufo
could not understand them, she said it seemed like more than just “hello.” Bufo said that
Valenzuela spoke to 20 or 25 voters during the two days of the election. Some of these
conversations “could have” lasted up to two minutes. Bufo complained about these
conversations to the Board Agent. When Valenzuela spoke in Spanish Bufo complained to the
Board Agent that Valenzuela should not be speaking to voters in Spanish. The Board Agent
instructed Valenzuela to speak English and Valenzuela agreed to do so. Bufo said she spoke to
all the voters who appeared on both days. She greeted them and introduced them to the Board
Agent. Bufo also testified that most of the employees did not understand English so she told the
Board Agent that he should give them instructions for the election in Spanish. Bufo identified
two employees to whom Valenzuela spoke for a few minutes “on the sidelines” by name: these
were Donoso and Juan Jimenez. When Valenzuela spoke to them they were not near the ballot
box; they were close to the door of the warehouse at the loading dock.
Hernandez recalled that he voted after work the first day of the election. When he
arrived at the poling area, he asked Valenzuela “How are you doing? How is everything going?
Do you have another job? How’s your family doing.” Valenzuela replied that he was “very well.
How are you? How’s it going? I can’t really talk that much. You guys know what you guys
have to do already.” Hernandez said this is more or less what he heard Valenzuela say to
about four other employees; it was the usual conversation when people have not seen each
other for some time. Hernandez saw Valenzuela leave the polling area at one point to greet
Jose Carpio with a hug at the loading dock, but the Board agent called him back. Hernandez
did not hear Valenzuela tell employees to vote for the Union.
Valenzuela testified that the Board agent told him not to have conversations with the
voters. According to Valenzuela when employees came to vote and expressed pleasure at
seeing him he told them that he could not talk too much. Valenzuela said he never told any
voter to cast a ballot for the Union
There is no evidence that any person wore Union insignia at the election and there is no
evidence that there was any campaign literature in evidence.
On August 25, Covello arrived at the warehouse at 4:15 am. He left his car in a parking

10 This would have occurred on the second day of the election.
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lot belonging to another establishment. Covello, D’Angelis, Valenzuela and Bufo all anxiously
waited for the Board Agent who had promised to arrive at 4:45 am. The Board Agent arrived at
5:22 am. Covello explained that he looked at his watch, and, “The reason I say 5:22 is I worked
for UPS, and anybody who worked for UPS they watch all the time because they’re very time
oriented. And you just automatically glance when somebody comes.”
Covello testified that no employees came to vote before 5:22. Bufo testified that nothing
happened before the election was set up. She said there were no employees present when the
Board Agent arrived. Thus, there is no indication in the record that any employees appeared for
the purpose of voting before the election was set up. That morning, employees would have
been scheduled to depart for their jobs at 6 am or later.
On both days, once the Board Agent had set up the election, Covello and D’Angelis left
the area. Covello stood at his car in the parking lot of another enterprise from which he could
see the warehouse and the loading dock; he could not see the ballot box when it was located in
the agreed upon place on the table inside the warehouse nor could he observe people as they
voted. He could only see people if they were on the loading dock. On occasion, he could see
the observers as they came to the loading dock to stretch their legs during a lull in the voting.
Bufo testified that on three occasions during a lull in the voting, twice on the first day of
the election and once on the second day, the Board Agent left the polling area to smoke outside
the warehouse. The smoking episodes lasted from three to five minutes. During some of this
time the Board Agent was using his cell phone. When the Board Agent went out for a smoke he
moved the ballot box from its location on the counter to a place on the same counter closer to
the loading dock. He explained to Bufo that he was moving the box so that he would have a
direct view of it while he was outside smoking. Bufo testified that after it was moved the ballot
box was six to eight feet from the edge of the loading dock. On these occasions the Board
Agent sat on a stone wall outside the warehouse about eight to twelve feet from the edge of the
loading dock. The observers remained in the area. Bufo stated that while the Board Agent was
outside smoking there was no obstruction blocking his view of the ballot box.
On one of these occasions during a lull when the Board Agent was outside smoking
Bufo informed him that she was going to use the lavatory. The Board Agent said he would be
right in. When Bufo emerged from the lavatory the Board Agent was still outside sitting on the
wall. A short time later employee Martha Fillhart was approaching the warehouse from the
parking lot in order to cast her vote. Bufo called to the Board Agent. Fillhart turned around to
get her eyeglasses which she had forgotten. By the time Fillhart returned the Board Agent was
back at the ballot box and Fillhart did cast her ballot.
Discussion
Objection 1. The evidence shows that both Bufo and Valenzuela greeted the employees
as they arrived to vote. Valenzuela had not been at work for some weeks and so employees
asked after him and his family and Valenzuela replied in kind. I credit Valenzuela that he told
employees he could not speak at length and that he never told voters to cast a ballot for the
Union. Although Bufo said that some of Valenzuela’s conversations “could have” lasted up to
two minutes, she specified only two conversations that lasted a “few minutes.” These were
conversations that took place “on the sidelines” between Valenzuela and Donoso and Juan
Jimenez. I find, in accordance with Bufo’s testimony, that these conversations took place at the
door of the loading dock and away from the actual polling area. Similarly Valenzuela’s greeting
of Carpio with a hug occurred at the loading dock and was swiftly ended by the Board Agent.
Bufo’s testimony makes clear that many of the voters had to be instructed in Spanish. Bufo also
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acknowledged that when she complained to the Board agent that Valenzuela was speaking to
voters in Spanish the Board agent instructed him to speak English and he complied. I find that
Valenzuela’s conduct, as described by Bufo, was not objectionable. The only conversations
lasting up to two minutes took place away from the polling area and not in the area where voters
were lined up to get their ballots or waiting to vote. An innocuous social pleasantry between an
observer and a voter that is not prolonged and is not touching on the election does not
constitute objectionable conduct warranting a new election. Sawyer Lumber Co., 326 NLRB
1331, 1333 (1998). Conversations away from the polling area are not subject to the strict rule
against sustained conversations with prospective voters enunciated in Milchem, Inc., 170 NLRB
362 (1968).
Hernandez described the conversations between Valenzuela and the voters in much the
same way, confirming that the talk was a typical social exchange when people have not seen
each other in a while.11 Hernandez also said that he heard Valenzuela tell four voters that he
could not talk that much and, “You guys know what you have to do already.” I do not find that
this was objectionable. The voters would have been instructed by the Board Agent as to how
and where to mark their ballots and where to return them. Although vague and ambiguous,
Valenzuela’s comment would just as likely have been taken to refer to that circumstance as to
any other. Further, Valenzuela made no reference to the Union or to the outcome of the
election in his statements. Thus, his remarks did not convey any particular meaning. U-Haul
Co. of Nevada, 341 NLRB 195 (2004).
Objection 3. As discussed above, I do not find that the Union’s observer electioneered
in the polling area and there is no evidence that there was any electioneering by any other
person.
Objection 4. The polling area was 12 to 15 feet from the loading dock where employees
returned to work in the evening and arrived for work in the morning. Further, the nature of the
supply room required that it be in sporadic use during the voting. Both of these areas were thus
subject to the “loitering” cited in the Employer’s Objection. However, this possibility was caused
by the choice of polling place. Thus, it was inevitable that some employees would linger near
the supply room and the polling area during voting hours. The testimony establishes that some
employees gathered less than 10 feet from the polling area inside the warehouse. The
evidence shows that both the Employer and the Union agreed on the polling location and
agreed on the supply room as the place where ballots would be marked. The evidence shows
that the Board Agent and Bufo controlled access to the supply room while a voter was inside
marking a ballot. Bufo testified that she and the Board Agent stopped people from going to the
supply room while a voter was actually inside marking a ballot. She also testified that about five
employees entered the supply room without her knowledge. Bufo did not explain how, if the
employees entered without her knowledge, she was able to ascertain that they were in the
supply room. Further, Bufo did not name any of these employees. I do not credit this
testimony. No evidence was presented to show that the secrecy of the ballot was compromised
or that any voters were turned away. No evidence was presented that any person actually
observed how an employee marked his ballot in the supply room. Indeed, the only complaint
made during the actual voting was by Harry Ward who was upset on the first day of the voting
that he could not have access to the supply room to return some used equipment. Also,
according to Bufo, Ward was “having a fit” during the election because everyone was speaking

11 I credit Hernandez. I observed that he conscientiously listened to every question and
reflected before answering. His demeanor was impressive and inspired confidence in his
truthfulness.
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Spanish. Ward told Bufo that he was annoyed that there was confusion. On the second day of
the election Ward threatened to leave without voting but Bufo insisted that he stay and Ward
eventually went into the supply room and voted without disturbance. Ward did not testify herein
so it is not clear what is meant by the reference to confusion. Perhaps Ward was confused
because he did not understand the instructions being given to some of the employees in
Spanish.
I note that the Employer had full knowledge of the conditions prevailing in the loading
dock area, the warehouse and the supply room when it agreed to conduct the election in the
location selected. The Employer knew that employees would come to the loading dock both
before and after work. The Employer knew that employees would require access to the supply
room. The Employer knew the exact distance between the loading dock and the polling area. It
can hardly be heard to complain that the conditions may not have been ideal. Further, after the
first day of the election the Employer was fully aware of the actual voting conditions but it did not
suggest any change or make any complaint to the Board Agent before the second day of the
election. The failure to voice any immediate complaint after the first day of the election is an
indication that the Employer did not see the need for a change in the conduct of the election.
The Employer’s Brief argues that the election should be set aside because four
employees marked their ballots on a table immediately outside the supply room after they were
told that they would be subject to observation by the Employer’s camera inside the supply room.
The Employer’s Election Objections do not state this ground and I shall not consider it.
Objection 6. I credit Covello and I find that on August 25 the Board Agent arrived at the
polling place at 5:22 am. The election had been scheduled to begin at 5 am. Employees were
scheduled to depart for their jobs at 6 am or later. I credit Covello and Bufo that no employees
arrived at the polling place before 5:22 in order to cast their votes. I credit Bufo that no
employees were present when the Board Agent arrived and set up the voting. There is no
evidence that any voter was disenfranchised by the late arrival of the Board Agent. The Board
has stated that it will not set aside an election “based solely on the fact that the Board agent
conducting the election arrived at the polling place later than scheduled, thereby causing the
election to be delayed.” Jobbers Meat Packing, 252 NLRB 41 (1980). It must be shown that the
late opening of the polls affected the outcome of the election. Here, no employees arrived at
the warehouse to vote before the polling place actually opened and the election was not
affected by the 22 minute delay.
Objections 7 and 8. The testimony shows that on three occasions during a lull in the
voting while the polls were open the Board Agent left the polling area to smoke outside the
warehouse. When this occurred the Board Agent moved the ballot box along the counter to a
location closer to the loading dock. The Board Agent explained to Bufo that he was moving the
box so that he would have a direct view of it while he was outside. Bufo testified that when he
went outside to smoke the Board Agent maintained an unobstructed view of the ballot box and
that the observers remained in the area near the box. The Board Agent was seated 8 to 12 feet
from the loading dock. On one such occasion Bufo used the lavatory while the Board Agent
remained seated outside. There is no evidence that the Board Agent ceased his vigilance
during this time. The testimony establishes that one employee approached the polling area to
vote while the Board Agent was outside the warehouse. By the time the employee was at the
polling area the Board Agent had returned to the area and the employee voted without incident.
It is clear from the evidence that the ballot box was never left unattended by the Board
Agent and that he never abandoned it. In fact, the Employer’s witness testified that the Board
Agent had an unobstructed view of the ballot box at all times while he was outside the
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warehouse sitting 8 to 12 feet from the loading dock. Unlike Austill Waxed Paper, 169 NLRB
1109 (1968), cited by the Employer, the ballot box in the instant case was never left wholly
unattended by all the election officials. There is no evidence that the integrity of the election
was compromised.
Based on the foregoing discussion I conclude that the Objections to the Election should
be overruled.
C. Challenges
George Peopplein
The Petitioner Union challenged the ballot of George Peopplein. Bufo testified that
Peopplein is a “technician supervisor.” He does not go out on jobs with the cleaning crews. He
does specialized cleaning for the company at the warehouse and he performs electrical jobs
and maintenance jobs at the warehouse. Peopplein performs work outside the facility of an
unspecified nature but he does not clean computer rooms. Bufo testified that Peopplein wears
the same shirt as the cleaning technicians. Valenzuela testified that the technicians wear a
uniform consisting of a blue T shirt, blue pants, black shoes, a blue belt and a black hat. He
stated that Poepplein does not wear that uniform; he wears construction clothes and a tool belt.
Peopplein performs handyman jobs such as repairing lighting and walls. From the description
of Peopplein’s job duties given by Bufo and Valenzuela it appears that Peopplein is not a
cleaning technician and is not a member of the bargaining unit. Peopplein does not clean
computer facilities, he does not go out on jobs with the cleaning crews, he performs different
work from the cleaning technicians and he seems to have no interaction with the unit
employees. Further, Peopplein does not use the same tools and equipment as the cleaning
technicians and he does not wear the complete standard uniform worn by unit employees. The
challenge to his ballot should be sustained.
Pedro Valenzuela and Jorge Donoso
The challenges to the ballots of Pedro Valenzuela and Jorge Donoso because their
names did not appear on the list of eligible voters should be sustained. I have found above that
they stopped working for the employer and I have not found that they were discharged in
violation of the Act. I need not decide whether Valenzuela was a supervisor as claimed by the
employer.
Juan Jimenez, Jorge Torres and Rafael Rosario
The Employer did not present any evidence in support of its challenge to the ballot of
Juan Jimenez.
The Petitioner withdrew its challenges to the ballots of Jorge Torres and Rafael Rosario.
Conclusions and Recommendation
Based on the foregoing discussion there are three challenged ballots that should be
opened and counted if the number of challenges would affect the outcome of the election.
However, the tally of ballots in the election showed that there were 43 valid votes counted and
that 28 votes were cast for the Petitioner and 15 were cast against a labor organization. Thus,
the number of challenged ballots would not change the result of the election.
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I therefore recommend that a Certification of Results of Election should be issued by the
Board.
Conclusions of Law
1. The General Counsel has not shown that the Respondent engaged in the violations
of the Act alleged in the Complaint in Case 2-CA-38340.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12
ORDER
The complaint in Case 2-CA-38340 is dismissed.
IT IS FURTHER ORDERED that Case 2-RC-23211 is transferred to and continued
before the Board in Washington, D.C.13
Dated, Washington, D.C., August 28, 2008.
____________________
Eleanor MacDonald
Administrative Law Judge

12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 Under the provisions of Sec. 102.69 of the Board’s Rules and Regulations, Exceptions to
this Recommended Decision may be filed with the Board in Washington, D.C., within 14 days
from the date of issuance of this Decision. Exceptions must be received by the Board in
Washington by September 11, 2008. Immediately upon the filing of such exceptions, the party
filing same shall serve a copy thereof upon the other parties and shall file a copy with the
Regional director. If no exceptions are filed thereto, the Board may adopt this Recommended
Decision.