Environmental Maintenance Solutions

National Labor Relations Board - Board Decisions

Jul 30, 2010

355 N.L.R.B. 334 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 58
334
Environmental Maintenance Solutions, Inc. and Local
Union 966, International Brotherhood of Team-
sters, Petitioner

Environmental Maintenance Solutions, Inc. and
Pedro Valenzuela Castillo. Cases 2–RC–23211
and 2–CA–38340
July 30, 2010
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On August 24 and 25, 2007, pursuant to a Stipulated
Election Agreement, an election was conducted in a unit
of the Employer’s cleaning technicians. The tally of bal-
lots showed 28 votes for the Petitioner and 15 against,
with 6 challenged ballots. Fifty-eight employees were
eligible to vote. The Employer filed timely objections to
the conduct of the election.
On August 28, 2008, Administrative Law Judge Elea-
nor MacDonald issued the attached decision.1 The Em-
ployer and the Union filed exceptions, supporting briefs,
and answering briefs. The Employer also filed a reply
brief.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions,3 to

1 Following the election, the Regional Director issued a Report on
Objections sustaining Employer Objection 6, which alleged that the late
opening of the polls on the second day of the election may have af-
fected the election results. The Regional Director concluded that the
late opening may have disenfranchised nine employees who did not
vote and, when combined with the six challenged voters, this may have
affected the election.
On January 9, 2008, in an unpublished Order, the two sitting mem-
bers of the National Labor Relations Board remanded the case to the
Regional Director to determine the eligibility of the six challenged
voters. The Board stated that if the number of eligible challenged vot-
ers, plus the 9 employees who did not vote exceeded the Union’s 13-
vote victory margin, the election should be set aside. Having consid-
ered the matter, as a three-member panel, we reaffirm this earlier deci-
sion to remand the case.
Subsequent to the election, the General Counsel issued a complaint
alleging that the Employer had violated Sec. 8(a)(1) and (3) of the Act
by discharging employees Jorge Donoso and Pedro Valenzuela for
concerted and union activities and by informing their employees that
the two had been discharged for trying to unionize the Company.
Upon remand, the Regional Director ordered the representation and
unfair labor practice cases consolidated, and assigned them to an ad-
ministrative law judge for a hearing, rulings, and decision.
2 The Union has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. Standard Dry
adopt the recommended Order, and to issue a Certifica-
tion of Representative.
The judge dismissed the unfair labor practice com-
plaint and rejected the Employer’s objections.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots have
been cast for Local Union 966, International Brotherhood
of Teamsters and that it is the exclusive collective-
bargaining representative of the employees in the follow-
ing appropriate unit:

All full-time and regular part-time cleaning technicians
employed by the Employer at and out of its facility at
199 Tompkins Avenue, Pleasantville, New York, but
excluding all other employees including office cleri-
cal employees, guards, professional employees and su-
pervisors, as defined in the Act.

Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
Specifically, we find no basis to reverse the judge’s discrediting of
certain testimony of the Employer’s observer, Carol Bufo, regarding
Employer Objection 4, which alleged that the Board agent compro-
mised the integrity of the election by allowing employees to loiter near
the polls. In adopting the judge’s credibility finding, we do not rely on
the judge’s statement that Bufo never explained how she could ascer-
tain that five employees were in the supply room if, as she testified,
they entered the room without her knowledge. Instead, we rely on the
judge’s findings that Bufo’s testimony was not credible as to this point
because she neither named the employees who entered the supply room
nor stated that they compromised the secrecy of the ballot by observing
how other employees voted.
3 We agree with the judge in finding no merit in Employer Objection
6, which alleged that the late opening of the polls on the second day of
the election affected the election’s outcome. In doing so, we do not
rely on the judge’s finding that no eligible voters arrived to vote be-
tween the scheduled and actual times for the opening of the polls.
Instead, we adopt the judge in sustaining the challenges to three ballots.
Based on this finding, we conclude that the total of unopened ballots
(3) and eligible nonvoters (9) could not overcome the Union’s 13-vote
margin of victory. Celotex Corp., 266 NLRB 802, 803 (1983). Ac-
cordingly, we shall issue a Certification of Representative.
ENVIRONMENTAL MAINTENANCE SOLUTIONS 335
Olga C. Torres, Esq., for the General Counsel.
Margit Reiner, Esq., for the Regional Director.
Stuart Weinberger, Esq. (Goldberg & Weinberger), of New
York, New York, for the Employer-Respondent.
Christopher Gant, Esq, (Kennedy, Jennik & Murphy, P.C.), of
Cresskill, New Jersey, for the Petitioner.
DECISION*
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. This
case was heard in New York, New York, on June 10, 11, 12, 13
and 18, 2008. The complaint alleges that Respondent, in viola-
tion of Section 8(a)(1) and (3) of the Act, discharged Jorge
Donoso and Pedro Valenzuela for concerted and union activi-
ties and informed employees that Donoso and Valenzuela were
discharged because they tried to bring a union into the com-
pany. Respondent denies that it has engaged in any violations
of the Act.1 An Order consolidating the unfair labor practice
case with the representation case provided for the determination
of challenged ballots and objections.
On the entire record, including my observation of the de-
meanor 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, Pleasant-
ville, New York, is engaged in the provision of data center
cleaning services to commercial customers. Annually Respon-
dent 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

* Correction has been made according to an errata issued on Septem-
ber 12, 2008.
1 At the hearing and in its brief, Respondent objected, on the basis of
Sec. 10(b) of the Act, to the granting of the General Counsel’s motion
to amend par. 10, the conclusory paragraph of the complaint. Par. 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. Par. 8 alleges that Respondent informed
employees that employees were discharged because they tried to bring
a union to the company. Par. 9 alleges that Respondent discriminated
against employees in violation of Sec. 8(a)(1) and (3) of the Act based
on conduct described in par. 7. As originally drawn, par. 10 alleged a
violation of Sec. 8(a)(1) of the Act based on par. 8. This was amended
to allege that the conduct described in pars. 7 and 8 violated Sec.
8(a)(1) of the Act. Respondent does not allege that the charges herein
were filed more than 6 months after the alleged occurrence. Respon-
dent’s objection to the amendment of par. 10 is without merit.
2 The record is hereby corrected so that at p. 7, L. 14, and thereafter
in the record the numbers 881 should read “8(a)(1)”; at p. 190, L. 15,
the question should read “and were there any obstructions”; at p. 323,
L. 15 and thereafter, the correct spelling of the name is Xavier Zapata;
p. 326, L. 25, should read “it would start on the 24th, ending the 29th”;
p. 328, LL. 2 and 3, the correct date is June 29th.
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 in-
volves 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, after-
noon, or evening, and they work weekdays and weekends as the
company requires. The technicians report for work to the facil-
ity, 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 jobsite until the work is completed.
The witnesses described various ways in which technicians
can learn when they are 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 coworkers 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 pay-

3 Zapata is also referred to as Jamal and Eusebio.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
check to other employees. At some unspecified time Donoso
called Local 32BJ and left his name and number with a secre-
tary. No one from Local 32BJ returned his call so Donoso and
coworkers 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 2 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 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 be-
tween 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 tele-
phone 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 4 days and he had never gone 4 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 mes-
sages from the company asking him to return to work. He said
that he did not quit or abandon his job. 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 sched-
uled 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 sched-
uled to work and on June 24, there were 26 technicians on the
schedule. In contrast, on Saturday, June 9, there were 42 tech-
nicians at work and on Sunday, June 10, there were 38 techni-
cians 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 sched-

4 The company produced the document for that job showing that
Donoso had been on the schedule but that the work was never done.
uled 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 Mon-
day, 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 tele-
phoned 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 acknowl-
edged 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 Eng-
lish, he drove, he was mature and he knew how to use the buff-
ers. 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 email 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 Xa-
vier 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 tele-
phone Donoso to find out if he would be working if he were
placed on the schedule. Delgado sent Pawell an email stating
that he had telephoned Donoso and left a message on his an-
swering machine “saying to please 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 prac-
tice charge against the company.
ENVIRONMENTAL MAINTENANCE SOLUTIONS 337
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 pre-
pared by Donoso, Valenzuela, and Franco. Pawell testified that
she first heard about an employee petition during the investiga-
tion 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 be-
cause 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 signa-
tures 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 super-
visor 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 lunch-
room 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 rest-
room in Sam’s Club. Valenzuela’s pay was cut by 50 cents per
hour for the next 3 months as a result of this incident.
Valenzuela testified that his last day of work was Wednes-
day, 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 sched-
ule 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 tele-
phoned him and reported that 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

5 The supervisory issue relating to Valenzuela will be described be-
low.
6 Valenzuela identified Freddy as the operations manager.
in the “beginning of July of 2007” and the day before he ac-
companied 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 warn-
ing. 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 ac-
tive 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 avail-
able. Zapata told Valenzuela to report to the warehouse on
Monday, July 2, at 9:30 a.m. 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 mes-
sages 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 de-
nied 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
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 particu-
lar 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 pro-
ceed. The supervisor inspects the premises after the job is fin-
ished 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 any-
thing 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 worksite.
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 over-
time. 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 em-
ployer’s unlawful motivation must be established as a pre-
condition to finding an 8(a)(3) violation. In Wright Line, the
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 pro-
tected 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 exis-
tence 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 em-
ployee’s protected activity and the adverse employment ac-
tion. 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 im-
proved 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 re-
marks 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 re-
quested the last few days off. Franco testified that after his
conversation with Valenzuela he heard Pawell make the re-
marks in the parking lot and then he called Valenzuela to say he

7 The General Counsel does not contend that Respondent was aware
of Donoso’s call to Local 32BJ.
ENVIRONMENTAL MAINTENANCE SOLUTIONS 339
now knew why Valenzuela had been fired. Valenzuela testified
that the day before the July 3 charge was filed Franco tele-
phoned him about Pawell’s alleged remarks. Franco also testi-
fied that Pawell’s remarks took place the day before they filed
the July 3 charge. I find that the testimony does not admit 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 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 Mon-
day 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 testi-
mony 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 3
months. Valenzuela was given 3 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 employ-
ment action. The General Counsel has not met the burden un-
der 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 evi-
dence 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 email 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 email 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 the General Coun-
sel’s failure to show that Respondent had knowledge of
Donoso’s concerted activities or to show that Respondent be-
lieved 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 pro-
tected activity by Donoso. Donoso did not return to work and
he therefore abandoned his job with the company.
III. CASE 2–RC–23211
A. Background
The election was scheduled to take place on August 24 from
5 to 7 p.m. and on August 25 from 5 to 9 a.m. The appropriate
unit is

All full-time and regular part-time cleaning technicians em-
ployed by the Employer at and out of its facility at 199
Thompkins Avenue, Pleasantville, New York, 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 employ-
ees in the polling area, including, but not limited to, as they
waited to vote.
3. The Union, including through its observer and other em-
ployees, 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 aban-
doned the ballot box when he left the election area.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
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 p.m. on the first day of the elec-
tion. 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 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 partici-
pants agreed that the best location for voters to mark their bal-
lots 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 consid-
ered 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

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 9 years. She appears to
know all of the employees and to be familiar with their jobs.
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 in-
volved 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” be-
cause 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.
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 con-
versations with voters to “hello” and “goodbye.” However,
according to Bufo, Valenzuela did not seem to limit his conver-
sations. 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 2 days of the election. Some of these conversations
“could have” lasted up to 2 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 vot-
ers who appeared on both days. She greeted them and intro-
duced 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

10 This would have occurred on the second day of the election.
ENVIRONMENTAL MAINTENANCE SOLUTIONS 341
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 polling 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 cam-
paign literature in evidence.
On August 25, Covello arrived at the warehouse at 4:15 am.
He left his car in a parking lot belonging to another establish-
ment. 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 a.m. 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 a.m. 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 vot-
ing, twice on the first day of the election and once on the sec-
ond day, the Board agent left the polling area to smoke outside
the warehouse. The smoking episodes lasted from 3 to 5 min-
utes. 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 6 to 8 feet from the
edge of the loading dock. On these occasions the Board agent
sat on a stone wall outside the warehouse about 8 to 12 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 park-
ing lot in order to cast her vote. Bufo called to the Board agent.
Fillhart turned around to get her eyeglasses which she had for-
gotten. 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 em-
ployees 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 con-
versations “could have” lasted up to 2 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 accor-
dance 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 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 2 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 pleas-
antry 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 poll-
ing area are not subject to the strict rule against sustained con-
versations 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
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 in-
structed by the Board agent as to how and where to mark their
ballots and where to return them. Although vague and ambigu-
ous, 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 Un-
ion’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 vot-
ing. 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 inevi-
table that some employees would linger near the supply room
and the polling area during voting hours. The testimony estab-
lishes 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 en-
tered 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 com-
promised or that any voters were turned away. No evidence
was presented that any person actually observed how an em-
ployee 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 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 refer-
ence to confusion. Perhaps Ward was confused because he did

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.
not understand the instructions being given to some of the em-
ployees in Spanish.
I note that the Employer had full knowledge of the condi-
tions prevailing in the loading dock area, the warehouse and the
supply room when it agreed to conduct the election in the loca-
tion 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 Em-
ployer 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 a.m. The
election had been scheduled to begin at 5 a.m. Employees were
scheduled to depart for their jobs at 6 a.m or later. I credit
Covello and Bufo that no employees arrived at the polling place
before 5:22 a.m. 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 dis-
enfranchised 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 elec-
tion 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 ar-
rived at the warehouse to vote before the polling place actually
opened and the election was not affected by the 22-minute de-
lay.
Objections 7 and 8. The testimony shows that on three occa-
sions during a lull in the voting while the polls were open the
Board agent left the polling area to smoke outside the ware-
house. 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
ENVIRONMENTAL MAINTENANCE SOLUTIONS 343
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 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 compro-
mised.
Based on the foregoing discussion I conclude that the objec-
tions to the election should be overruled.
C. Challenges
George Peopplein
The Petitioner Union challenged the ballot of George Peop-
plein. Bufo testified that Peopplein is a “technician supervi-
sor.” 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 ware-
house. Peopplein performs work outside the facility of an un-
specified 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 Peopplein 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 bargain-
ing unit. Peopplein does not clean computer facilities, he does
not go out on jobs with the cleaning crews, he performs differ-
ent 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 techni-
cians and he does not wear the complete standard uniform worn
by unit employees. The challenge to his ballot should be sus-
tained.
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 eligi-
ble 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 em-
ployer.
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 Peti-
tioner and 15 were cast against a labor organization. Thus, the
number of challenged ballots would not change the result of the
election.
I therefore recommend that a Certification of Results of
Election should be issued by the Board.
CONCLUSION 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

12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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.