North Hills Services, Inc.

National Labor Relations Board - Board Decisions

Apr 28, 2006

346 N.L.R.B. 1099 (N.L.R.B. 2006)

NORTH HILLS OFFICE SERVICES
346 NLRB No. 96
1099
North Hills Office Services, Inc. and Service Employ-
ees International Union, Local 32B-J.1 Case 29–
CA–25930
April 28, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND
SCHAUMBER
On January 14, 2005, Administrative Law Judge Ray-
mond P. Green issued the attached decision. The Re-
spondent filed exceptions and a supporting brief to which
the Charging Party filed an answering brief. The General
Counsel filed cross-exceptions and a supporting brief to
which the Respondent filed an answering brief.2
The National Labor Relations Board has delegated its
authority in this proceeding 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,3 and conclusions
except as specified below and to adopt the recommended
Order as modified and set forth in full below.4
We adopt the judge’s findings, for the reasons set forth
in his decision, that the Respondent violated Section
8(a)(1) by: coercively questioning night-shift employees
about their union activities on June 30, 2003;5 directing
night-shift employees to remove their union T-shirts on

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO effective
July 25, 2005.
2 There were no exceptions to the judge’s finding that the Respon-
dent violated Sec. 8(a)(1) by granting a wage increase in order to dis-
suade its employees from supporting the Union. There were also no
exceptions to the judge’s recommended dismissal of allegations that the
Respondent unlawfully: (1) directed and induced employees to sign a
petition withdrawing their membership from the Union; (2) changed
employees Esmerelda Leon and Julio Jimenez’ work hours; (3)
changed Jimenez’ job duties; (4) prohibited Leon from removing soda
cans from the building; and (5) refused to change employee Ana Joya’s
job duties.
3 The Respondent excepted to some of the judge's credibility find-
ings. 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 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.
4 We shall substitute a new notice in accordance with our decision
in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354
F.3d 534 (6th Cir. 2004).
Additionally, the record indicates that many of the Respondent’s
employees do not speak English fluently and may have difficulty un-
derstanding a notice posted in English. Accordingly, we shall order that
the Respondent post the notice to employees in both English and Span-
ish. Flying Foods, 345 NLRB 101 fn. 3 (2005), and cases cited therein.
5 All dates refer to 2003, unless otherwise indicated.
July 1, and implementing a new policy on July 2 requir-
ing employees on the night shift to wear a uniform;6 im-
plementing a “no-talking” rule in early August; and di-
recting off-duty employees to stop distributing union
leaflets in a nonworking area in August and on October
14.7 We similarly adopt the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) by issuing a
warning to employees Ana Joya, Sandra Hernandez, and
Maria Mendoza on July 1 for distributing union literature
during “company time.”
The judge also found that the Respondent violated
Section 8(a)(1) by changing day-shift employees Es-
merelda Leon and Julio Jimenez’ lunch schedules so that
they ate lunch at separate times and violated Section
8(a)(3) and (1) by discharging employees Joya and Her-
nandez. We agree with the judge as we further explain
below. For the reasons stated below, however, we re-
verse the judge’s finding that the Respondent violated
Section 8(a)(1) by distributing the September 22 edition
of its “Plain Talk” newsletter to employees.8
The judge failed to address in his decision numerous
allegations of violations raised by the General Counsel in
the complaint. The General Counsel excepted to the
judge’s failure to address two of those allegations.9 We

6 An employer’s workplace rule violates Sec. 8(a)(1) when it is
promulgated in response to union activity. Lutheran Heritage Village-
Livonia, 343 NLRB 646, 647 (2004). Here, the Respondent’s uniform
rule followed on the heels of its unlawful directive to employees to
remove their union t-shirts and had the same objective—preventing the
display of union insignia. In these circumstances, we find that the Re-
spondent’s uniform policy was motivated by and was in response to
those activities.
7 We find that the area between the building’s entrances and the
parking lot or sidewalk where the handbilling in question occurred was
not a part of the Respondent’s work area. See, e.g., Santa Fe Hotel &
Casino, 331 NLRB 723 (2000) (holding that an area outside of an em-
ployer’s facility is not a “work area” if the work performed there is
merely incidental to the employer’s main function). For this reason, the
Respondent could not prohibit off-duty employee handbilling in that
area. Stoddard-Quirk Mfg. Co., 138 NLRB 615 (1962) (holding that an
employer can limit distribution of union materials in its “work areas”).
In finding this violation, we do not rely on the judge’s statement that
the Respondent’s directive to off-duty employees to stop handbilling on
these occasions was unlawful for the additional reason that the directive
carried with it a threat of discipline.
8 Member Liebman dissents on this issue. See fn. 21 infra.
9 There were no exceptions to the judge’s failure to address allega-
tions that the Respondent unlawfully: (1) threatened an employee with
discharge in retaliation for distributing union literature (complaint pars.
15(b) and 17(c)); (2) interrogated an employee about a union meeting
(complaint par. 18(a)); (3) impliedly threatened an employee with
unspecified reprisals for attending a union meeting (complaint par.
18(c)); (4) threatened to decrease an employee’s working hours if he or
she refused to sign a petition withdrawing membership in the union and
promising not to attend future union meetings (complaint par. 19(b));
(5) interrogated an employee about the reasons for her activities on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1100
find that the Respondent violated Section 8(a)(1) by of-
fering to assist employee Mendoza in withdrawing her
membership in the Union but we dismiss the allegations
that the Respondent violated Section 8(a)(1) by convey-
ing to employees an impression of surveillance.10
1. The judge found that the Respondent violated Sec-
tion 8(a)(1) on or about July 3 by changing the schedules
of day-shift employees Esmerelda Leon and Julio
Jimenez so that they ate lunch at separate times. The
judge’s decision, however, contains insufficient analysis
to support his conclusion. Nevertheless, for the reasons
that follow, we agree that the schedule change violated
Section 8(a)(1).
Leon and Jimenez were open union supporters, and the
Respondent was aware of their union activities. In re-
sponse to Operations Manager Eddie Matos’ coercive
questioning of employees on June 30, Leon identified
herself as a former member of Local 32B-J. Six pro-
union employees, including Leon and Jimenez, wore
union T-shirts to work on July 1, and again on July 2,
despite Building Supervisor Alfonso Riano’s July 1
unlawful directive that they stop wearing the shirts. After
employees wore the union T-shirts again on July 2, the
Respondent unlawfully implemented a new uniform pol-
icy. The following day, Leon’s and Jimenez’ lunch
schedule was changed, depriving them of their opportu-
nity to meet and talk to each other during their
lunchbreak. These facts are sufficient to satisfy the Gen-
eral Counsel’s initial burden to show that Leon’s and
Jimenez’ Section 7 activity was a substantial or motivat-
ing factor in the Respondent’s decision to change their
lunch schedules. Manno Electric, 321 NLRB 278, 280–
281 (1996); Wright Line, 251 NLRB 1083 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982), approved in NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393, 398–403 (1982).11 Thus, the
focus of our remaining inquiry is whether the Respon-

behalf of the union and threatened her with discipline for those activi-
ties (complaint par. 21); and (6) threatened an employee with discipline
in retaliation for his or her activities on behalf of the union (complaint
par. 23). Accordingly, we shall dismiss these complaint allegations.
10 Member Liebman dissents on this issue. See fn. 24 infra.
11 Regarding the Wright Line analysis, Member Schaumber notes
that the Board and circuit courts of appeals have variously described
the evidentiary elements of the General Counsel’s initial burden of
proof under Wright Line, sometimes adding as an independent fourth
element the necessity for there to be a causal nexus between the union
animus and the adverse employment action. See, e.g., American Gar-
dens Management Co., 338 NLRB 644, 645 (2002). As stated in
Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright
Line is a causation analysis, Member Schaumber agrees with this addi-
tion to the formulation.
dent demonstrated that it would have changed the em-
ployees’ lunch schedules even in the absence of their
Section 7 activities.
The Respondent asserts that it changed the employees’
lunch schedules in July because the employees were tak-
ing their lunches together away from the building and
because of an incident where the employees were un-
available to answer a service call. The Respondent fur-
ther asserts that it made this change at the request of its
client, Linque Management. The judge found that there
was no real connection between the Respondent’s July
change in lunch schedules and the Respondent’s need to
always have an employee available to respond to service
calls. We agree.
According to the Respondent, it changed the employ-
ees’ lunch schedules because of an incident, which oc-
curred after lunch, in September or October. Linque
Management Building Manager Robert Kinsley received
a call about an overflowing toilet and was unable to lo-
cate either of the Respondent’s two day-shift employees
because they left work early. This incident, however,
occurred months after the July schedule change and not
as a result of the employees eating lunch together. It,
therefore, provides no justification for the schedule
change.12
The record also belies the Respondent’s contention
that employee availability to respond to service calls dur-
ing the employees’ lunchbreak was a problem. Whenever
Riano needed assistance during the employees’ lunch-
break, one of the employees would always stop eating
lunch and respond to his call. There is no evidence that
Leon or Jimenez had taken lunch away from the building
prior to July, or at any time for that matter. Similarly,
there is no evidence that these employees ever failed to
respond to lunchtime service calls.
In these circumstances, we find that the Respondent
failed to satisfy its rebuttal burden to show that it would
have changed the employees’ lunch schedules even in the
absence of their Section 7 activity. Accordingly, we af-
firm the judge’s conclusion that the change in lunch
schedules violated Section 8(a)(1).13
2. We also agree with the judge’s finding that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
when it discharged Joya and Hernandez on October 14.
In finding that the discharges were unlawful, however,
the judge failed to clearly explain his Wright Line analy-

12 There were no exceptions to the judge’s factual finding that the
schedule change occurred in July.
13 There were no exceptions to the judge’s failure to find that the
change also violated Sec. 8(a)(3) as alleged.
NORTH HILLS OFFICE SERVICES 1101
sis or fully analyze the evidence presented by the Re-
spondent in support of its Wright Line rebuttal defense.
Having conducted the Wright Line analysis, we neverthe-
less find the Respondent’s rebuttal evidence unavailing
for the reasons set forth below.
The Respondent has a contract with Linque Manage-
ment to provide cleaning services in a commercial office
building. Although not mentioned by the judge in his
decision, in either August or October, Linque Manage-
ment’s building manager, Kinsley, told the Respondent’s
vice president of operations, Tom Pellegrino, that a ten-
ant had complained about an argument between Riano
and employees in a public lobby on the third floor of the
building.14 Kinsley testified that during his conversation
with Pellegrino about the incident, he told Pellegrino not
to let this happen again and that if there were further dis-
turbances in the building, the Respondent might need to
make some personnel changes on the night shift. At no
time during the conversation did Kinsley indicate that the
Respondent would lose its cleaning contract if another
incident occurred.
On October 14, from approximately 5 to 6 p.m., Joya,
Hernandez, and Mendoza distributed union handbills to
persons leaving the building. Riano came outside and
directed them to stop handbilling.15 They did not stop
distributing leaflets, however, until just prior to the be-
ginning of their shift at 6 p.m.
When Joya came into the building after handbilling,
she asked Riano for an update on a request for a raise she
made the day before. This discussion occurred in the
basement by the Respondent’s supply closet and in the
presence of other employees. No tenants were present.
According to the credited testimony, Riano began yelling
and screaming at Joya, telling her that she should call the
office about the raise and that she could get the number
from the same people who gave her the union leaflets.
Riano also said that because Joya was “good at handing
out papers, go get the answer [about a raise] someplace
else.” Hernandez intervened on behalf of Joya and told
Riano to stop yelling at Joya. Riano told Hernandez to
keep her comments to herself and go to work. At no
point during the incident did any employee yell or curse,
as Riano conceded during his testimony.
Riano, however, called Pellegrino and Matos and told
them that the employees were cursing him and that he

14 Kinsley specifically named the tenant. The tenant, however, testi-
fied that she never lodged such a complaint with Kinsley. Kinsley also
testified that his conversation with Pellegrino occurred in August while
Pellegrino testified that it occurred in October.
15 As discussed above, we adopt the judge’s finding that Riano’s di-
rective was a violation of Sec. 8(a)(1).
felt that he was losing control of the employees. Riano
also prepared written warnings for Joya and Hernandez.
When Pellegrino and Matos arrived at the building at
approximately 6:30 or 7 p.m., they discovered that Joya
and Hernandez had two previous warnings. Accordingly,
Pellegrino, Matos, and Riano discharged Joya and Her-
nandez at the end of the shift around 9 p.m.
There is substantial record evidence of these employ-
ees’ union activities and the Respondent’s knowledge of
those activities. The discharges also came immediately
following Joya’s and Hernandez’ participation in lawful
union handbilling outside of the building. Considering
the numerous other violations found by the judge and
adopted by the Board in this case, there is substantial
evidence of the Respondent’s animus to the employees’
Section 7 activities, including those of Joya and Hernan-
dez. Accordingly, we find that the General Counsel has
satisfied his initial burden to show that Joya’s and Her-
nandez’ union activities were a substantial or motivating
factor in their discharge. Manno Electric, supra; Wright
Line, supra. Thus, again the focus of our remaining in-
quiry is whether the Respondent demonstrated that it
would have discharged Joya and Hernandez even in the
absence of their union activities.
The Respondent contends that it discharged Joya and
Hernandez because Linque Management had informed it
that further disturbances in public areas of the building
could not happen again, and that it “acted solely to pro-
tect its contract with its client.”16 The record, however,
does not support the Respondent’s contention.
While Linque Management Building Manager Kinsley
told Pellegrino not to let similar incidents occur again,
Kinsley did not threaten to end their contractual relation-
ship if further incidents occurred.17 Even assuming an-
other incident in a public area of the building might have
impacted the parties’ relationship, the October 14 inci-
dent did not occur in public. It occurred in the building’s
basement outside of the presence of the building’s ten-
ants.
The Respondent’s proffered reason for the discipline is
further undercut by the credited testimony that Riano, not
Joya or Hernandez, did the yelling and screaming. Ri-
ano’s repeated references during the incident to the em-

16 See R. Br. in Support of Exceptions, p. 24.
17 The Respondent claims that it disciplined the employees on Octo-
ber 14 because Kinsley had complained earlier in October about an
argument between Riano and employees in a public area of the build-
ing. As discussed above, however, Kinsley testified that he complained
to Pellegrino in August. This unexplained inconsistency in the evidence
purportedly supporting the Respondent’s justifications for its actions
undercuts the Respondent’s Wright Line defense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1102
ployees’ handbilling strongly suggests that the real rea-
son for the discipline was that Riano was upset by the
handbilling and the employees’ defiance of his unlawful
directive to stop it. In these circumstances, we find that
the Respondent has not satisfied its rebuttal burden to
show that it would have disciplined the employees even
in the absence of their union activities. This evidence
would also support a finding that the Respondent’s prof-
fered reason for the discipline is pretextual.18 Accord-
ingly, we affirm the judge’s conclusion that the dis-
charges violated Section 8(a)(3) and (1) of the Act.19
3. The judge found that the Respondent violated Sec-
tion 8(a)(1) by distributing the September 22 edition of
its “Plain Talk” newsletter to employees. The judge
based his finding on his understanding that the newsletter
had previously been found unlawful by the Board in
North Hills Office Services, 344 NLRB 1083, 1097
(2005) (North Hills I). We reverse.
Contrary to the judge’s statement, the Board did not
find that the September 22 newsletter was unlawful in
North Hills I.20 Further, for the reasons that follow, we
find that distributing the newsletter to employees did not
violate the Act.
The newsletter contained the following statement
about the Union:
Many of you must have read newspapers regarding the
bigotry and the bias crimes committed against Hispanic
workers in Farmingville. 32BJ has shown their true
colors when they went to the Federal Labor Board with
a group of employees and told the Federal Labor Board
that at North Hills many of the hardworking Hispanic
people we employ are undocumented. 32BJ is creating
problems for hardworking Hispanic people! 32BJ is
trying to get the INS to threaten North Hills employees.
You have to ask yourself why did the Union engage in
such gutter tactics. When you see a 32BJ representative
or a sympathizer, ask them why they told the Labor
Board that the people working at North Hills are un-

18 In making this finding, we do not rely on the judge’s characteriza-
tion of the standard for determining whether an employer’s asserted
business justification for an adverse employment action is pretextual. A
finding of pretext necessarily means that the reasons advanced by the
employer either did not exist or were not in fact relied upon, thereby
leaving intact the inference of wrongful motive established by the Gen-
eral Counsel’s initial showing. ADS Electric Co., 339 NLRB 1020,
1023 (2003); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd.
705 F.2d 799 (6th Cir. 1982).
19 We specifically disavow the judge’s gratuitous and improper
comment that Spanish-speaking men have an overblown sense of ma-
chismo.
20 See North Hills I, 344 NLRB at 1084 fn. 10.
documented. To verify that they told this to the Labor
Board, you need only call the attorney at the Board . . . .
This is the most unprincipled tactic that any union can
use and only a union as unscrupulous as 32BJ would
engaged [sic] in this kind of activity.
We recognize that threats involving immigration or
deportation can be particularly coercive. Such threats
place in jeopardy not only the employees’ jobs and work-
ing conditions, but also their ability to remain in their
homes in the United States. Smithfield Packing Co., 344
NLRB 1, 9 (2004) (citing Viracon, Inc., 256 NLRB 245,
247, 252–253 (1981)); Mid-Wilshire Health Care Center,
342 NLRB 520, 524 (2004). Here, the Respondent did
not make a threat. It represented to employees its view of
what the Union had done and what the Union allegedly
planned on doing. The newsletter did not say that the
Respondent had taken or would take any action regarding
employees’ immigration status. Because employees
would reasonably understand that the newsletter did not
refer to any action within the control of the Respondent,
we find that it was not an unlawful threat. See Smithfield
Packing, supra; Pacific Grain Products, 309 NLRB 690,
691 (1992) (rejecting contention that union official’s
statement was threat because union official did not have
the ability to carry out the alleged threat). Consequently,
we find that the newsletter referring to the Union’s con-
duct did not interfere with, restrain, or coerce employees
in the exercise of their Section 7 rights. See, e.g., Smith-
field Packing, supra (dismissing allegation that employer
threatened employees by saying that if employees voted
the union in, the union would “turn Immigration on the
Latinos” because statement did not involve any action
within the control of employer). Accordingly, we shall
dismiss this allegation.21

21 Our dissenting colleague contends that the newsletter’s reference
to the “Federal Labor Board” would reasonably tend to discourage
employees from turning to the Board for assistance or from cooperating
with the Board for fear of being reported to immigration authorities.
We note, however, that the newsletter does not predict adverse conse-
quences should employees seek out Board assistance or cooperate with
Board investigations. On the contrary, the newsletter expressly encour-
aged employees to speak with Board agents so that they could confirm,
for themselves, that the Union had taken the conduct referred to in the
newsletter. Thus, unlike our colleague, we do not find that the newslet-
ter discouraged employees from dealing with the Board.
Contrary to the majority, Member Liebman would find that the Re-
spondent’s distribution of the September 22 “Plain Talk” newsletter
violated Sec. 8(a)(1), particularly in the context of the Respondent’s
other, unlawful antiunion conduct, as found by the Board. In Member
Liebman’s view, the newsletter’s repeated references to the “Federal
Labor Board,” in connection with the Union’s asserted efforts to create
immigration-law difficulties for employees, would discourage employ-
ees from bringing claims to the Board and from cooperating with the
NORTH HILLS OFFICE SERVICES 1103
4. The complaint alleged that the Respondent violated
Section 8(a)(1) by offering to assist employee Maria
Mendoza in withdrawing her membership in the Union.
The judge failed to address this complaint allegation and
the General Counsel excepted to the judge’s failure to do
so. We find merit in the General Counsel’s exception.
During the July 1 meeting where Mendoza received a
discriminatory warning for distributing union literature
during “company time,”22 Matos asked her whether she
knew that employees already had a union, referring to the
incumbent union, NOITU. Mendoza responded that she
knew there was a union because they took $15 in dues
from her paychecks. Matos then said that he was “going
to help [Mendoza] to get out of 32B-J” but that “if [she]
had signed some papers it was going to be difficult to get
[her] out of 32B-J.” At no point during his testimony did
Matos deny making these statements.
The General Counsel contends that Matos’ statements
constitute an unlawful offer of assistance to withdraw
membership in the Union. We agree. “An employer may
lawfully inform employees of their right to revoke their
authorization cards, even where employees have not so-
licited such information, as long as the employer makes
no attempt to ascertain whether employees will avail
themselves of this right nor offers any assistance, or oth-
erwise creates a situation where employees would tend to
feel peril in refraining from such revocation.” R. L. White
Co., 262 NLRB 575, 576 (1982) (footnote omitted).
Nevertheless, an employer may not “exceed the permis-
sible bounds of providing ministerial or passive aid in
withdrawing from union membership.” Chelsea Homes,
298 NLRB 813, 834 (1990), enfd. mem. 962 F.2d 2 (2d
Cir. 1992) (finding violation when employer provided
sample form and preaddressed envelope). The Board
may also find such statements unlawful when made in
the context of contemporaneous unfair labor practices.
Air Flow Equipment, Inc., 340 NLRB 415, 418 (2003);
see generally Register Guard, 344 NLRB 1142, 1143–
1144 (2005).
Here, Matos offered Mendoza assistance in withdraw-
ing her membership in the Union in the context of sev-

Board, for fear of being reported to immigration authorities. Notably,
the newsletter was attached to employees’ paychecks and included a
large picture of a rat. Employees who both faced the real possibility of
employer reprisals and who were discouraged from turning to the
Board for protection would reasonably tend to be chilled in their exer-
cise of Sec. 7 rights. The Board “must be careful to ensure that employ-
ees are not improperly discouraged from seeking to vindicate their legal
rights, including access to the Board.” Regal Cinemas, Inc., 334 NLRB
304 (2001), enfd. 317 F.3d 300 (D.C. Cir. 2003).
22 As discussed above, we adopt the judge’s finding that the warning
issued to Mendoza on this occasion violated Sec. 8(a)(3) and (1).
eral contemporaneous unfair labor practices specifically
directed at Mendoza: on June 30, Matos coercively inter-
rogated Mendoza about her union activities; on July 1,
Building Supervisor Riano unlawfully directed Mendoza,
as well as other employees, to remove a union t-shirt; on
July 1, Riano and Matos issued Mendoza a discrimina-
tory warning contemporaneously with Matos’ offer to
assist her to withdraw her membership in the Union; and
on July 2, Riano unlawfully implemented a new uniform
rule in response to Mendoza’s, as well as other employ-
ees’, union T-shirts. In these circumstances, Mendoza
would reasonably construe Matos’ offer of assistance as
an implicit invitation to withdraw her membership in the
Union. Coming on the heels of the discriminatory disci-
pline issued to Mendoza for participating in union activi-
ties, the offer also reasonably presented the possibility to
Mendoza that Matos would force her to withdraw her
membership in the Union or suffer further discipline.
Matos’ statement, therefore, created a situation where
Mendoza would tend to feel peril in refusing Matos’ of-
fer. Accordingly, Matos’ statement violated Section
8(a)(1). R. L. White Co., supra.
5. The complaint alleged that on two separate occa-
sions the Respondent violated Section 8(a)(1) by convey-
ing to employees an impression of surveillance. The
judge’s decision did not address these complaint allega-
tions and the General Counsel excepted to the judge’s
failure to do so. We find no merit in the General Coun-
sel’s exceptions.
Leon testified that during a July 1 meeting, Building
Supervisor Riano told Leon that two of her coworkers
had reported to Riano that Leon drove them to a union
meeting on June 29. Riano did not deny making this
statement, but did testify that he never asked any em-
ployee to provide him with any information about the
June 29 union meeting.
Mendoza testified that, during the July 1 meeting
where she was given a discriminatory warning for dis-
tributing union literature during “company time,” Matos
told her that two of her coworkers had informed him that
Mendoza was distributing union literature during work-
ing hours. Matos did not deny making this statement to
Mendoza.
The General Counsel contends that where an employer
informs an employee that coworkers are reporting on
their union activities, the employer creates an impression
of surveillance. We disagree. The gravamen of an im-
pression of surveillance violation is that employees are
led to believe that their union activities have been placed
under surveillance by the employer. South Shore Hospi-
tal, 229 NLRB 363 (1977), enfd. in relevant part 571
F.2d 677 (1st Cir. 1978) (emphasis added). Volunteering
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1104
information concerning an employee’s union activities
by other employees such as occurred here, particularly in
the absence of evidence that management solicited that
information, does not create an impression of surveil-
lance. See, e.g., Register Guard, supra at 1144 (finding
that employer’s statements indicating employees had
volunteered information about coworkers’ union activi-
ties did not create impression of surveillance); Rock-
Tenn Co., 315 NLRB 670, 682 fn. 19 (1994), enfd. 69
F.3d 803 (7th Cir. 1995), and overruled on another point
by Chelsea Industries, 331 NLRB 1648 (2000), enfd.
285 F.3d 1073 (D.C. Cir. 2002).
We recognize that Matos’ statements did not take
place in circumstances entirely free of unlawful conduct.
Even if Matos’ statements are viewed in light of the Re-
spondent’s unlawful conduct, however, they do not es-
tablish impressions of surveillance because Matos clearly
indicated that another employee was the source of his
information about Mendoza’s and Leon’s union activi-
ties. Cf. SKD Jonesville Division L.P., 340 NLRB 101,
102 (2003) (finding that supervisor’s statement that he
heard that employee was going to organize, during con-
versation that included an unlawful threat of retaliation,
did not establish an unlawful impression of surveil-
lance).23 Accordingly, we shall dismiss these complaint
allegations.24

23 For this reason, Sam’s Club, 342 NLRB 483, 483–484 (2004),
cited by our dissenting colleague, infra, is distinguishable. In Sam’s
Club, the employer’s statement revealed the employer’s knowledge of
an employee’s union activities but did not reveal the source of the
employer’s information. Here, Matos’ statement made clear that his
source was another employee.
Although Chairman Battista agrees that this case can be distin-
guished from Sam’s Club, he dissented in Sam’s Club, finding that the
evidence there failed to establish that employees were under the im-
pression that the employer was “surreptitiously watching” them or
“spy[ing] upon them.”
24 Contrary to the majority, Member Liebman would find that the
Respondent unlawfully created an impression of surveillance on both
occasions. The test for whether an employer unlawfully creates an
impression of surveillance is whether under the circumstances, the
employee reasonably could conclude from the statement in question
that his protected activities are being monitored. Sam’s Club, supra.
Here, the circumstances include the Respondent’s other unlawful con-
duct directed against the employees involved, as well as their co-
workers.
The July 1 statement of Operations Manager Riano to employee
Leon—that Riano knew from Leon’s coworkers that he had driven
them to a June 29 union meeting—occurred in a conversation during
which Leon was issued an unlawful warning and shortly after Leon and
other employees were unlawfully interrogated about the union meeting.
On the same day, the Respondent distributed a newsletter that, as the
Board has found in a previous case (North Hills Office Services, 344
NLRB at 1084), created an unlawful impression of surveillance with
respect to the union meeting.
AMENDED CONCLUSIONS OF LAW
1. Replace the judge’s Conclusion of Law 10 with the
following:
“10. By offering an employee assistance to withdraw
her membership in the Union in the context of contempo-
raneous unfair labor practices, the Respondent has vio-
lated Section 8(a)(1) of the Act.”
2. Replace the judge’s Conclusion of Law 13 with the
following:
“13. The Respondent has not violated the Act in any
other manner.”
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, North Hills Office Services, Inc., Wood-
bury, New York, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Threatening to discharge or impose other reprisals
on employees or issuing warnings to or discharging em-
ployees because of their union membership, activities, or
support.
(b) Interrogating employees about their union mem-
bership or activity.

The July 1 statement of Supervisor Matos to employee Mendoza—
that he had received reports, from Mendoza’s coworkers, that she was
handing out union literature on company time—was made in similarly
coercive circumstances. Mendoza was contemporaneously issued an
unlawful warning for the reported conduct. Shortly before, on June 30,
Matos had unlawfully interrogated Mendoza about her union activities.
The majority finds no violation because “[v]olunteering information
concerning an employee’s union activities by other employees such as
occurred here, particularly in the absence of evidence that management
solicited that information, does not create an impression of surveil-
lance.” Contrary to the majority, the fact that the Respondent’s supervi-
sors told Leon and Mendoza that other employees were the source of
the information but did not indicate to Leon or Mendoza just how or
why management received this information about their union activities
supports a finding of a violation under Sam’s Club, supra (relying on
fact that respondent’s manager “never revealed how he came by the
information.”). Under the circumstances here—including unlawful
interrogations and related unfair labor practices—employees in the
position of Leon and Mendoza would reasonably suspect that the in-
formation concerning their union activities had not been volunteered by
their fellow employees, but rather had been extracted coercively, in
connection with the Respondent’s efforts to monitor employees. Id. at
483–484. In addition, the majority’s position fails to take into account
that no innocent explanation for the comments of Riano or Matos was
communicated to Mendoza or Leon. Indeed, “[t]here is no record evi-
dence of a legitimate purpose for making the statement[s].” Mountain-
eer Steel, Inc., 326 NLRB 787 (1998), enfd. 8 Fed. Appx. 180 (4th Cir.
2001).
NORTH HILLS OFFICE SERVICES 1105
(c) Directing employees on the night shift to remove
union T-shirts and requiring them to wear company uni-
forms that substantially obscured the union T-shirts.
(d) Requiring employees to take separate lunchbreaks
in order to discourage them from engaging in union ac-
tivities.
(e) Prohibiting employees from talking to each other
during working hours in order to discourage their union
activities.
(f) Directing off duty employees not to engage in un-
ion leafleting activity in the parking lot.
(g) Offering employees assistance to withdraw their
membership in the Union in the context of contempora-
neous unfair labor practices.
(h) Giving wage increases to employees in order to in-
duce them to refrain from joining or assisting Local
32BJ.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of the Order, offer
Ana Joya and Sandra Hernandez full reinstatement to
their former jobs, or if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously en-
joyed.
(b) Make Ana Joya and Sandra Hernandez whole, with
interest, for any loss of earnings and other benefits suf-
fered as a result of the discrimination against them, in the
manner set forth in the remedy section of the judge’s
decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharges
and warnings of Ana Joya, Sandra Hernandez, and Maria
Mendoza and within 3 days thereafter, notify them in
writing, that this has been done and that the discharges
and warnings will not be used against them in any way.
(d) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facility in Garden City, New York, copies of the at-
tached Notice marked “Appendix”25 in both English and

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
Spanish. Copies of the notice, on forms provided by the
Regional Director for Region 29, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency
of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since June 30, 2003.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT discharge or otherwise retaliate against
employees for supporting Service Employees Interna-
tional Union, Local 32B-J, or any other labor organiza-
tion.
WE WILL NOT coercively question employees about
their union support or activities.

tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1106
WE WILL NOT direct employees on the night shift to
remove union T-shirts and require them to wear company
uniforms that substantially obscure the union T-shirts.
WE WILL NOT require employees to take separate
lunchbreaks in order to discourage them from engaging
in union activities.
WE WILL NOT prohibit employees from talking to each
other during working hours in order to discourage their
union activities.
WE WILL NOT direct off duty employees not to engage
in union leafleting activity in the parking lot.
WE WILL NOT offer employees assistance in withdraw-
ing their membership in the Union.
WE WILL NOT give wage increases to employees in or-
der to induce them to refrain from joining or assisting the
Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, within 14 days from the date of the Board’s
Order, offer Ana Joya and Sandra Hernandez full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed.
WE WILL make whole Ana Joya and Sandra Hernandez
for any loss of pay they may have suffered as a result of
our discrimination against them.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharges and warnings of Ana Joya and Sandra
Hernandez, and WE WILL, within 3 days thereafter, notify
each of them in writing that this has been done and that
the discharges and warnings will not be used against
them in any way.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful warning of Maria Mendoza, and WE WILL, within 3
days thereafter, notify her in writing that this has been
done and that the warning will not be used against her in
any way.
NORTH HILLS OFFICE SERVICES, INC.
Amy Gladstone Esq., for the General Counsel.
Alan Pearl Esq. and Nancy M. Hark Esq., for North Hills.
Katchen Locke Esq., for the Union.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case in Brooklyn, New York, on various days in June and Au-
gust 2004. The charge in Case 29–CA–25930 and the first
amended charge were filed against North Hills on October 29,
2003, and January 21, 2004. The charge and amended charge
in Case 29–CA–25996 were filed against North Hills on De-
cember 4, 2003, and January 8, 2004.
A consolidated complaint issued on March 12, 2004, but on
June 8, 2004, the Regional Director approved a settlement
agreement between the Union and Linque, which resulted in the
withdrawal of the charge in Case 29–CA–25996, the elimina-
tion of that company as a Respondent eliminated the illegal
discharge allegations relating to Julio Jimenez and Esmerelda
Leon. As amended, the allegations that remained are as fol-
lows:
1. That on June 30, 2003, the Respondents, by Eddie Matos,
its operations manager, (a) interrogated employees about Local
32BJ, (b) induced and offered to assist an employee to with-
draw membership from the Union, and (c) threatened to dis-
charge an employee for distributing union literature.
2. That on June 30, 2003, Respondents, by Alfonso Riano,
(a) directed employees to remove T-shirts with union logos, (b)
threatened employees who refused to remove these T-shirts, (c)
conveyed the impression that employees’ union activities were
under surveillance, (d) threatened an employee with discharge
because he/she distributed union literature, (e) directed em-
ployees to refrain from distributing union literature, and (f)
instituted an overly broad no-solicitation/distribution rule, pro-
hibiting employees from distributing literature during working
hours.
3. That on July 1, 2003, the Respondent, for discriminatory
reasons issued warnings to Sandra Hernandez, Maria Mendoza,
and Ana Joya.
4. That on or about July 2 or 3, the Respondent required em-
ployees to wear company uniforms which covered up and ob-
scured the union T-shirts.
5. That on July 8, 2003, the Respondent, by Alfonso Riano,
(a) interrogated an employee about attending a union meeting,
(b) conveyed an impression of surveillance, (c) impliedly
threatened an employees with reprisals for attending a union
meeting, (d) directed and induced employees to sign a petition
withdrawing their membership in the Union, and (e) threatened
to eliminate night-shift hours if an employee refused to sign the
petition.
6. That on July 20, 2003, the Respondent for discriminatory
reasons, changed the lunchbreak and shift schedules of Julio
Jimenez and Esmerelda Leon.
7. That in late July 2003, the Respondent, for discriminatory
reasons instituted a new rule prohibiting employees from talk-
ing to each other while working.
8. That in late July 2003, the Respondent by Riano, told em-
ployees who were engaged in leafleting in the parking lot, that
they could not do so because it was private property.
9. That on August 1, 2003, the Respondent, by Riano, for
discriminatory reasons, refused to change Ana Joya’s job re-
sponsibilities so that she no longer had to clean bathrooms.
10. That on or about August 2003, the Respondent for dis-
criminatory reasons, made Jimenez mop the stairs 5 days a
week.
11. That on September 22, 2003, the Respondent by its
newsletter, made false statements regarding an alleged attempt
by the Union to report employees to the Immigration and Natu-
ralization Service (INS).
NORTH HILLS OFFICE SERVICES 1107
12. That on or about September 29, 2003, the Respondent,
by Alfonso Riano, interrogated and threatened employees re-
garding their union activities.
13. That on September 29, 2003, the Respondent, for dis-
criminatory reasons, prohibited Leon from removing soda cans
as she had been permitted to do in the past.
14. That on or about October 14, 2003, the Respondent, by
Riano told employees to stop distributing union literature at the
back entrance to 990 Stewart Avenue and threatened employees
with discharge if they continued to do so.
15. That on October 14, 2003, the Respondent, for discrimi-
natory reasons, issued a warning to Sandra Hernandez and Ana
Joya.
16. That on October 14, 2003, the Respondent, for discrimi-
natory reasons, discharged Sandra Hernandez and Ana Joya.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the brief filed, I
make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits and I find that it is an employer
within the meaning of Section 2(2), (6), and (7) of the Act. It
also is admitted and I find that Service Employees International
Union, Local 32BJ, AFL–CIO is a labor organization within the
meaning of Section 2(5) of the Act.
North Hills Office Services is a cleaning contractor that does
business in the New York/New Jersey Metropolitan area. In
the present case, it has a contract to provide such services for a
company called Linque Management at an office building lo-
cated at 990 Stewart Avenue in Garden City, New York.1
North Hills employs about 400 cleaning employees who
work at about 60 to 65 locations. Since 1974, with one excep-
tion, its employees, on a companywide basis, in the classifica-
tions of matrons and porters, have been represented by another
labor organization called the National Organization of Indus-
trial Trade Unions (NOITU).
The Stewart Avenue location is a six-story office building
occupied by various commercial and governmental tenants.
The Respondent, Local 32BJ and NOITU have not been
strangers to one another or indeed, to the National Labor Rela-
tions Board (the Board).
In a decision at 342 NLRB 217 (2004), the Board found that
the North Hills violated Section 8(a)(1), (2), and (5) and that
NOITU violated Section 8(b)(1)(A) and (2) of the Act. In that
case, the Company, in the summer of 2002, had taken over the
operations of a company called Harvard Maintenance Inc. at an
office complex in Rutherford, New Jersey. In doing so it hired a
majority of Harvard’s employees who had been represented by
Local 32BJ. Instead of recognizing and bargaining with Local
32BJ, whose contract provided for higher rates of pay than the
contract with NOITU, North Hills assisted NOITU in obtaining

1 Originally, the complaint alleged that Linque and North Hills were
joint employers. However, as Linque entered into a separate settlement
agreement the allegations against it was dropped.
employees to sign union authorization cards and illegally rec-
ognized NOITU as the bargaining representative. Concluding
that NOITU did not represent an uncoerced majority of these
employees, the Board also held that NOITU had violated the
Act by accepting recognition and by executing a collective-
bargaining agreement covering these employees. In that case,
the cast a characters was much the same as in the present case.2
In another case, JD(NY)–38–04, Judge Edelman dealt with a
situation where Local 32BJ was attempting to organize Re-
spondent’s employees at another location during the spring and
summer of 2003. As in the present case, the employees were
covered by a contract with NOITU. In that case, the judge
concluded that the Respondent violated the Act by (a) discharg-
ing and suspending two employees because they supported
Local 32BJ; (b) demanding that employees show green cards
and/or social security cards in order to discourage membership
in Local 32BJ; (c) impliedly threatening employees with dis-
charge; (d) illegally interrogating employees about their union
activities; (e) engaging in surveillance of employee union ac-
tivities, and/or creating the impression that it was engaged in
surveillance; (f) directing employees not to talk to union repre-
sentatives; and (g) telling employees that selecting the union
would be futile. In that case, Judge Edelman discredited the
Respondent’s witnesses including Pellegrino and Matos who
also testified in the present case. Also at pages 18 and 19, he
concluded that the Respondent violated the Act by creating the
impression of surveillance via the issuance of a July 1, 2003
issue of “Plain Talk” which was also issued to the employees in
the present case.
At 990 Stewart Avenue, there were 2 employees who were
assigned to work the day shift and about 13 who worked during
the night. Since much of the cleaning was done in the tenant’s
spaces, most of the Respondent’s employees began their shifts
after 6 p.m. The evidence shows that the day-shift employees
of the Respondent were actually supervised by Robert Kinsley
who was the property manager for Linque. The two employees
of the Respondent who worked on the day shift were Esmerelda
Leon and Julio Jimenez and also worked the night shift. The
remaining employees worked at night under the direct supervi-
sion of Alfonso Riano.
The hierarchy of the Respondent is as follows. Paul Kaplan
is the president. Tom Pellegrino is the vice president of opera-
tions. Mindy Levy is the controller and she is involved with
various accounting and human resource functions, including
making sure that the Company is complying with the wage
rates and other terms of the contract with NOITU. Eddie Matos
is the operations manager and he is in charge of the day-to-day
operations of the Company at all of the locations where it is
working. Alfonso Riano is the night-shift supervisor of the
employees located at 990 Stewart Avenue. (He may also have
some contact with the two day-shift employees and can tell
them what to do.)

2 I note that Judge Kern did credit the testimony of Pellegrino to the
extent that he denied the allegation that he had threatened employees
with discharge.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1108
Local 32BJ began an organizing campaign amongst the em-
ployees of the Respondent in or about the spring of 2003. As
the target bargaining unit was all of the Company’s employees,
Local 32BJ engaged in organizing activity at 990 Stewart Ave-
nue and other locations.
A. Late June and July 2003
In late June 2003, Local 32BJ organizer Ericka Bozzi started
to approach employees who worked at 990 Stewart Avenue.
Initially, she spoke to these workers in the parking lot of the
building or in a café that was nearby. In this respect, she was
successful in getting six of the employees to support the Union,
these being Marcia Reyes, Ana Joya, Maria Mendoza, Sandra
Hernandez, Julio Jimenez, and Esmerelda Leon.
The evidence shows that the Respondent was aware that Lo-
cal 32BJ was organizing at least by June 25 as it published a
newsletter called “Plain Talk” on that date which stated:
All of us know that Local 32BJ has declared war on NOITU
and the Company. We do not know why, except that your
dues must be the incentive and represents a lot of m money to
the unions.
Be on Guard against Local 32BJ’s dirty tricks.
On Sunday, June 29, 2003, Bozzi held a meeting at a church
that was attended by five of the six employees named above.
(Jimenez was not there). The employees signed union authori-
zation cards and were given other cards to pass out to their
coworkers during off hours. This they did on Monday, June 30,
2003. Also, at the meeting, the employees signed a petition
indicating their support for Local 32B and they were asked to
hand this to the Employer. In this regard, it appears that Julio
Jimenez attempted to do this on July 1 or 2, 2003, but that Ri-
ano refused to accept the paper and it was left on a desk in the
office.
Esmerelda Leon testified that at about 9 p.m. on June 30,
2003, after the shift had ended, Eddie Matos visited the build-
ing with Alan Jimenez, a NOITU representative, and held a
meeting with some of the employees. She testified that Matos
asked who had attended the Local 32BJ meeting and also asked
if anyone had been affiliated with Local 32B in the past. Leon
testified that she said that she had previously been a member of
Local 32B when she worked at Bloomingdale’s whereupon
Matos asked her what the benefits were. She testified that she
described some of the benefits and that the meeting ended.
Matos, for his part, denied these contentions and stated that he
did not become aware of the union meeting at the church until
several days later.3 Matos testified that he did meet with the
cleaning employees at around 6 p.m. on June 30 because Riano
had told him that some of the employees were not following his
orders. Matos testified that he went to the building to remind
the employees that they had to respect Riano and that they
could not talk back to him. He states that he told the employees

3 But note that on July 1, 2003, the Company issued a bulletin to its
employees, which referred to the union meeting at the church that was
held on June 29.
that if they had any problems with Riano’ instructions to them,
they should contact him (Matos).
On July 1, 2003, the Respondent, by Supervisor Riano issued
written warnings to Sandra Hernandez, Ana Joya, and Maria
Mendoza. These warnings stated:
This warning is for interrupting the cleaners on company time
and not permitting them to do their work on June 30, 2003.
With respect to these warnings, the evidence shows that (a)
the Company does not have any rule prohibiting solicitations or
distributions during working time or on company property and
(b) the actual solicitations took place while employees were not
actually engaged in work. Therefore, there was no actual inter-
ruption in work. For example in the cases of Sandra Hernandez
and Ana Joya, they credibly testified that they either asked
other employees to sign union cards or handed out a union leaf-
let while they were waiting for Riano to open the closet near
the end of the shift so that they could put their cleaning tools
away. Thus, although the evening shift runs from 6 to 9 p.m.,
these employees had actually completed their work when the
solicitation occurred. As to Maria Mendoza, Riano at first
asserted that he saw her hand something to another employee
on the third floor. But he then testified that he never actually
saw Maria give anything to anyone that night.
On July 1, 2003, the Respondent published and distributed
another issue of Plain Talk that read:
Local 32BJ had a meeting on Sunday, June 29th in a house of
worship. They desecrated it by using it to spread lies about
their rate of pay. Attached is a paycheck from a national
company doing business on Long Island competing with us
and having a contract with 32BJ and paying its employees
$6.50 per h our and the union dues is $26.00 In other words,
you will pay Local 32BJ $2.30 for every hour that you work.
Local 32BJ has been forging documents. Please be careful
when you give them a copy of your signature, especially
when they are using it for unlawful purposes. 4
On July 1, 2003, the six employees who signed cards for Lo-
cal 32B arrived at work wearing union T-shirts. On the front in
large letters, the shirt states, “SEIU Justice for Janitors.” It also
has a picture of a raised fist holding a broom. On the back it
reads, “Standing Up for the American Dream.” The shirt also
has the Union’s name written on the sleeve. There is really no
dispute that on July 1, 2003, Alfonso Riano, with agreement of
his boss, told these employees to take off the union t-shirts. In
this regard, Julio Jimenez testified that when he asked Riano
why he had to take off the T-shirt, he was told that it was not
permitted to use propaganda on private property. Ana Joya
testified that Riano told her that she had to take off the Local
32B T-shirt or she would be fired. Sandra Hernandez testified
that Riano told her that if she didn’t take off the Local 32B T-

4 In Judge Edelman’s decision at JD(NY)–38–04, he concluded that
the Respondent by issuing this document, violated Sec. 8(a)(1) by
creating the impression that its employees union activities were under
surveillance.
NORTH HILLS OFFICE SERVICES 1109
shirt, “we are going to have to give you a warning.” Riano
denies that he made such a threat and Jimenez did not testify as
to any threat of discharge made to him.
Notwithstanding the instruction by Riano, these six employ-
ees arrived at work on the following day (July 2), wearing the
T-shirts. On this occasion, instead of telling the employees to
remove the shirts, Riano distributed aprons with North Hills’
logos on them and told them to wear them over their clothes.
This would have had the effect of covering the front and back
of the union T-shirts but not the union logo on the sleeve. In
any event, after the distributing the company uniforms, which
these night-shift employees at this location had never worn
before, the employees gave up on wearing the union T-shirts at
work. (The two day-shift employees, Julio Jimenez and Es-
merelda Leon, had previously been required to wear company
uniforms during the day shift and obviously it was far more
likely that the day-shift workers were going to encounter ten-
ants than the night-shift workers who mostly worked after the
tenants left the building.)
There is no dispute that in early July 2003, the employees of
990 Stewart Avenue received raises. (I’m not sure if employ-
ees working at other locations also got raises.) Pellegrino testi-
fied that the wage increases came about after NOITU requested
in June 2003 (for some reason unknown to him), that all bar-
gaining unit employees be brought up to $6.50 per hour.
Mindy Levy, the Company’s controller testified, however, that
NOITU did not initiate the wage increases; that they were initi-
ated by the Company.
At the time of these wage increases, the contract between
NOITU and the Respondent was not due to expire for about 5
more months (until the end of November 2003), and there is no
evidence that those two parties had commenced negotiations
for a new agreement. In any event, it is obvious that by the
time that these raises were contemplated and given, both
NOITU and the Respondent were aware that Local 32BJ had
just commenced an attempt to organize the porters and cleaning
employees. It therefore is probable that each entity thought that
one way to blunt this organizing effort was to grant wage in-
creases during the midterm of their collective-bargaining
agreement and not wait for a new agreement to be negotiated.
On or about July 8, 2003, NOITU’s representative, Alan
Jimenez met with the night-shift employees before the shift
began. Ana Joya testified that after the meeting, Riano came
over to her and asked her to sign a piece of paper. Similarly,
Esmerelda Leon and Sandra Hernandez stated that they were
also approached by Riano to sign what appeared to them to be a
blank piece of paper. With respect to this document, Julio
Jimenez claimed that he signed the document but that it was in
English and he was not told what it was for. Similarly, Maria
Hernandez stated that she was asked to sign the document by
Riano but that she signed a document without reading it.
Although the General Counsel contends that this document
was a petition withdrawing membership in Local 32BJ, none of
the employee could actually recognize the offered document
(GC Exh. 7), as the one they signed, either because it was
folded, or because they couldn’t or didn’t read it. Thus, al-
though General Counsel’s Exhibit 7 has the names of these
employees on it, the testimony regarding the document is, to
my mind too ambiguous to base a finding that the Respondent
violated the Act in this respect.
In or about July 2003, Leon and Jimenez, both of whom
worked during the day, were told that they no longer could eat
their lunches together; that they had to break up their lunches so
that one would be available if needed. At another time, they
were told that since their hours of work were from 9 a.m. to 4
p.m., they were required to stay until their shifts ended and then
go home.
As to leaving early, the Employer asserts that it merely was
insisting that these two employees stay on the job for the time
that they were being paid for. In this respect, the evidence was
that the employees were hired to work the evening shift that ran
from 6 to 9 p.m. and which normally ended at around 8:50 p.m.
when the employees were expected to put away their tools. I
don’t think that the Employer’s insistence that its employees
work the full time that they were being paid, constitutes a viola-
tion of the Act.
The Respondent argues that the lunchbreak change, which
did not alter the amount of breaktime either employee had, was
caused by the need to have an employee always available in the
event that a tenant needed to have something done. Although
Riano conceded that Leon and Jimenez had eaten together for
quite a while. He testified that he decided to change this after a
tenant complained about an overflowing toilet. However, Ri-
ano acknowledged that in the past, when he needed a porter, he
was able to have one of the two employees stop eating and do
the required task. Thus, there seems to be no real connection
between Riano’s need to have an employee available for emer-
gencies and his requirement that they eat at separate times.
B. August 2003
Moving on to August 2003, the General Counsel asserts that
the Respondent violated the Act when it required Jimenez to
mop the stairs every day. This, it is contended, was an exam-
ple of requiring an employee to perform a more onerous duty in
retaliation for his union activity.5
Jimenez’ job during the day time was to clean the bathrooms,
the parking lot, and the lobby areas. At night, he cleaned the
cafeteria and the basement. Part of the Respondent’s contrac-
tual responsibilities was to mop the two stairways. And in this
respect, Jimenez testified that before August when he was told
that he had to mop the stairs everyday, he sometimes mopped
the stairs as “a favor” to Alfonso Riano.
The fact is that mopping the stairs every day is not different
from Jimenez’ normal duties (cleaning), and can hardly be
described as more onerous. What it requires is simply to take a
pail of water with a mop into the elevator, take the elevator to a
floor, take the pail to the stairwell, put the mop into the pail and
proceed to mop the stairs from floor A to floor B. Then one
takes the pail back to the elevator and goes to the next floor. I
shall recommend that this allegation be dismissed.

5 I note that another of the General Counsel’s witnesses, Sandra
Hernandez testified that at a meeting in the parking lot held on June 27,
2004, Jimenez complained about being required to mop the floors eve-
ryday.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1110
The Company asserts that Riano issued two warnings to Ana
Joya, one on August 8, 2003, and the other on August 29, 2003.
These allegedly were for insubordination and neither was al-
leged in the complaint or any amended complaints to be a vio-
lation of the Act.
Jimenez testified that at the August meeting where he was
assigned to mop the stairways every day, Riano told the em-
ployees that he didn’t want to see them talking among them-
selves during working hours. Sandra Hernandez testified that
Riano told the employees that he didn’t want anyone talking in
the hallways. Esmerelda Leon testified that Riano said that the
employees could not talk inside the building and that they had
to be separated while they worked. This was denied by Riano
who testified that there was no rule prohibiting the employees
from talking while at work. And indeed, the Respondent’s writ-
ten rules do not contain any such prohibition. The Company
rules do, however, prohibit “employee gatherings” during
working time.
On balance, and in light of the mutual corroboration of the
employee witnesses, I am going to credit their account and
conclude that in August 2003, Riano told them that they no
longer could talk to each other during working hours. While
not necessarily a rule of the Company (more like Riano’s rule
for this particular building), this local prohibition on solicitation
was, in my opinion, overly broad and therefore a violation of
Section 8(a)(1) of the Act.
The Union engaged in some leafleting activity outside the
building in August 2003. But for the sake of clarity and be-
cause there was another incident involving leafleting in October
2003, I shall discuss this under a separate heading.
C. September 2003
On September 22, 2003, the Respondent issued a newsletter
to its employees that stated:
Many of you must have read the newspapers regarding the
bigotry and the bias crimes committed against Hispanic
workers in Farmingville. 32BJ has shown their true colors
when they went to the Federal Labor Board with a group of
employees and told the Federal Labor Board that at North
Hills many of the hardworking Hispanic people we employ
are undocumented. 32BJ is creating problems for hardwork-
ing Hispanic people! 32BJ is trying to get the INS to threaten
North Hills employees. You have to ask yourself why did the
Union engage in such gutter tactics. When you see a 32BJ
representative or a sympathizer, ask them why they told the
Labor Board that the people working at North Hills are un-
documented. To verify that they told this to the Labor Board,
you need only to call the attorney at the Board, Amy Glad-
stone. . . . This is the most unprincipled tactic that any union
can use and only a union as unscrupulous as 32BJ would en-
gage in this kind of activity.
On or about September 29, 2003, the Union held a rally in
front of the building at which Esmerelda Leon spoke through
an amplification system.6 It seems that during this rally, Leon
had some unkind things to say about Riano.
According to Leon, after reporting to work, Riano asked her
why she said those things about him and called her a bitch.
Leon states that when he pressed her about what she said about
him, she told him that she was telling the truth and that he
treated her like a bitch. Leon testified that at one point during
this argument, she told him that he should not argue with her
and that “he should get a man like him.” Leon further testified
that later in the evening, Riano told her that she no longer could
pick up the cans and that if she continued to do so, he would
give her a note.
Riano testified that there was a demonstration outside the
building in September and that he heard Leon accuse him of
treating the employees like animals and that he did not respect
them. He testified that he approached Leon and told her that
she should be careful about what she said because he never
disrespected the employees and never treated anyone badly.
According to Riano she shouted at him and said that he should
look for a man to which he responded that she was a bitch. As
he understood it, Leon was calling him a “maricone,” which is
for Spanish speaking people, a stronger epitaph than being
called a “faggot” in English.
As far as picking up cans, Riano testified that he told Leon
that she should not do this because it was taking up too much
time from her normal duties. (I assume that everyone is talking
about Leon’s practice of taking the cans for herself so that she
could pocket the five-cent deposits.) Leon further testified that
she nevertheless ignored his instruction and continued to re-
move and take cans from the garbage. As to this allegation, I
am going to recommend that it be dismissed. Whether or not
Riano was motivated by Leon’s union activity, it is my opinion
that the Company can insist that its employees work for the
Company and not for themselves while on the clock. And to
the extent that Leon managed to make a few extra bucks by
retrieving soda bottles and cans, the amounts would be trivial.
(It takes 100 cans to equal $5.)
D. Leafleting
In August 2003, the Union along with employees Sandra
Hernandez and Maria Mendoza handed out leaflets in front of
the building near the entrance.7 They engaged in this activity
from about 12 noon to 1 p.m., this being a time that they were
not required to be at work. The Union’s witnesses testified that
Riano came out and told them that they were not allowed to
distribute fliers at this location because it was private property.
On the same evening between 5 and 6 p.m., these employees
again distributed leaflets and were again told by Riano that they
could not do so because they were on private property.

6 The parties agree that this event took place on September 29, 2003,
although Esmerelda Leon remembered it as taking place on July 29,
2003.
7 The leaflets asserted that the employer required Sandra Hernandez
to clean the bathrooms and that the chemicals it used irritated her
throat.
NORTH HILLS OFFICE SERVICES 1111
On October 14, 2003, employees Hernandez, Joya, and Men-
doza handed out leaflets while wearing their union T-shirts.
The testimony was that at about 5:30 p.m., Riano came out and
told the employees that they could not hand out the leaflets
because they were on private property. When the employees
refused, Kingsley, Linque’s agent called the Nassau County
police who told him that the employees were within their rights
to leaflet at the property. At 6 p.m. the employees stopped
leafleting and went to work.
Insofar as the leafleting, Riano testified that on one occasion
he told the employees that a tenant had complained that they
were interrupting the exit from the building. He states that he
told Jimenez, “Julio, please, can you distribute those leaflets
outside the parking lot, outside of the property of the building?”
Riano testified that when Jimenez refused he returned inside,
told the security officer what was happening, and that the secu-
rity officer went out to speak to them.
The evidence shows that neither the Respondent nor Linque
have any proprietary interest in the facility. They are contrac-
tors who manage the building and clean it. There was no evi-
dence that the actual owners of the building sought to prevent
protect any property interest and there was no evidence that the
employees who were engaged in the leafleting activity inter-
fered with the ingress or egress of tenants or their guests.
Whether some tenants may have complained about the leaflet-
ing is not relevant. This is, after all a country where individuals
sometimes are inconvenienced by others who want to get their
message out.
E. The Discharges of Ana Joya and Sandra Hernandez
Until sometime in August 2003, Sandra Hernandez was the
person on the night shift who was primarily responsible for
cleaning the bathrooms. She complained that the chemicals
irritated her throat and the Union distributed leaflets complain-
ing about this. Accordingly, in mid-August, Riano decided to
rotate the woman to clean the bathrooms. But at some point, he
decided to assign Ana Joya to this job. According to Joya, she
complained to Riano about this and he promised that when he
hired another person, he would have her clean offices again.
According to Joya, there were two new employees hired but
Riano refused to change her assignment. She testified that he
said, “I’m not doing any changes at this time.” Based on this
evidence, I do not think that the General Counsel has proved
that the Respondent refused to reassign Joya because of her
union activity and I shall recommend that this allegation be
dismissed.
On Friday, October 10, 2003, an incident occurred between
Riano and Marcia Reyes. Although the General Counsel con-
tends that this incident had nothing to do with Ana Joya and
Sandra Hernandez, it clearly did as it set the stage for what later
happened between him and these two workers. To the extent
that the legality of the discharges of Joya and Hernandez de-
pend on the intent of the persons who decided to discharge
them, the Respondent argues that the events involving Marcia
Reyes, certainly affected the state of mind of Riano.
That Friday, Riano got into an argument with Marcia Reyes
about picking up paper from the offices. She told him and his
assistant, Graciella Pena, that she wasn’t going to do it and
“you can do what you like.” She also told Riano that he was a
“nobody” and that he couldn’t tell her what to do. At one point,
according to Riano, Reyes called him a “maricone.”8 At
around the end of the shift, Riano attempted to hand a warning
to her but she refused to take it. He did, however, manage to
have his superior, Tom Pellegrino, come down to the building
and give her a warning on Monday, October 13, 2003. This
warning was for insubordination and essentially charged Reyes
with refusing to follow orders and for shouting at her supervi-
sors. At that time, Reyes was also told that it would be best if
she transferred to a different building. She refused.
While Pellegrino was at the building on October 13 to give
the warning to Reyes, Joya approached him and demanded to
be paid more money for cleaning the bathrooms. Pellegrino
responded that he would have to talk to his superiors and get
back to her.
On Tuesday, October 14, 2003, Hernandez, Joya, and Men-
doza handed out leaflets while wearing their union T-shirts.
Their testimony was that at about 5:30 p.m., Riano told them
that they could not hand out the leaflets because they were on
private property. The evidence also was that Linque’s agent,
Kingsley, called the Nassau County police who said that the
employees were within their rights to leaflet at the property. At
6 p.m. the employees went to work.
When Ana Joya arrived at work, she asked Riano if he had
an answer for her about the raise. Riano responded that she
should call the office. As this was taking place in the base-
ment, Sandra Hernandez, Esmerelda Leon, and perhaps other
employees were standing nearby.9 There was a lot of testimony
about this event by these people and there was, predictably, two
alternative versions as to who was yelling at whom and what
type of curses, if any, were made.
According to Ana Joya, she asked if Riano had an answer
about the raise and he said that she should call the office. Joya
states that he said that if she needed the telephone number, she
could get it from the same people who gave her the flyers. She
states that Riano said that he was going to fire her if she didn’t
go back to work and that she replied, “[Y]ou’re not going to get
rid of me that easy” and that he didn’t have to treat workers in
that fashion. She claimed, but no other person confirmed, that
Riano threw a pair of gloves at her when he said, “Shut up and
go to work.” She denies cursing or yelling at Riano.
Esmerelda Leon testified that he heard Ana Joya ask Riano
for a change from the bathrooms. She states that Riano told
Joya that she should call the company and that if she didn’t like
it the doors are open and she can go. Leon testified that she
didn’t hear anything else and that did not hear either person
yelling, although Riano’s tone of voice was a “little bit

8 I should note that at various points in the transcript this word is
misspelled.
9 Sandra Hernandez testified that Jimenez and another employee
named Antonio was also present during this transaction. Jimenez, who
testified at great length about various other things, was not asked by the
General Counsel or the Respondent to give his account of what hap-
pened on October 14 in the locker room. Antonio was not called as a
witness.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1112
stronger, higher voice.” According to Leon, she did not hear
anyone use any curse words toward Riano during this transac-
tion.
Sandra Hernandez testified she heard Joya ask Riano if he
had an answer for her and he said, “[Y]ou are good at handing
out papers, go get the answer someplace else.” She testified that
during the conversation between Joya and Riano she intervened
and told him that he should stop yelling at Joya. Hernandez
states that Riano responded that she should keep her comments
to herself and go back to work. According to Hernandez, Joya
was not yelling at Riana and that Riano started to scream at
Joya before he told her to go clean the bathrooms.
Riano’s version is quite different. He testified that after he
told Joya that he did not have an answer about her requested
raise, Joya started to yell and curse at him in front of other em-
ployees. He testified that she used words, which the translator
characterized as calling him and the company as “idiots” or
“fools.” He testified that when Sandra Hernandez intervened,
the other workers started to laugh at him and they collectively
started saying things like, “are you a man or a chicken?”
According to Riano he said to himself, “everything is lost,”
meaning I suppose that he felt that he had lost any semblance of
control over the employees. He asserts that he therefore placed
calls to Tom Pellegrino and Eddie Matos and told them that he
couldn’t take the employees cursing at him anymore. He states
that he told Matos that the situation was out of control and that
he needed help.
Pellegrino and Matos then went to the building and Riano al-
legedly told them that the workers were cursing at him and that
he was losing control. By this time, Riano had written up
warnings for Hernandez, Joya, and Reyes. And after determin-
ing that they had received previous warnings,10 Pellegrino and
Matos testified that they decided to discharge all three. Pelle-
grino then spoke to each of the employees and told them that
they were being discharged because of insubordination.11
I note that Marcia Reyes was one of the three employees dis-
charged on October 14, 2003, and that she was among the
group of six employees who were actively engaged in Local
32BJ’s organizing efforts. Nevertheless, despite a charge hav-
ing been filed on her behalf alleging that her discharge was
unlawful, the complaint does not allege that either the August
warnings or her termination on October 14, 2003, was unlaw-
ful.

10 The evidence shows that Joya received prior warnings on August
8 and 29. It is not alleged by the General Counsel that these warnings
were violative of the Act. In the case of Sandra Hernandez, she had
previously been terminated by the Company for excessive absences and
had been rehired, through the efforts of NOITU, before Local 32BJ
started its organizing effort.
11 Although the Company has a progressive disciplinary system that
normally requires three warnings before a discharge, this is not written
in stone and an employee may be discharged for a serious offense with-
out any prior warnings.
II. ANALYSIS
Insofar as this Company is concerned, there has been an on-
going contest between one union (NOITU), and another union,
Local 32BJ, which has been seeking to organize the employees
for several years. (As noted above, NOITU has a company-
wide contract with the Respondent.) This contest was mani-
fested as early as the summer of 2002, after the Respondent
took over the operations of Harvard Maintenance Inc., at an
office complex in New Jersey and attempted to compel the
employees there to forego their representation by Local 32BJ
and compel them to join NOITU. That situation resulted in a
Board Order at 342 NLRB 208, which concluded that the Re-
spondent and NOITU violated various provisions of the Na-
tional Labor Relations Act.
The organizing activity involved in the present case com-
menced in the spring of 2003 and was not limited to the em-
ployees located at 990 Stewart Avenue. Judge Edelman con-
cluded in another case, that Local 32BJ also attempted to or-
ganize employees at a location in Melville, New York. He also
concluded that those efforts were met by a serious of unfair
labor practices that commenced in May 2003 and included the
unlawful discharges and suspensions of employees, threats of
discharge and surveillance of employees’ union activities.
Thus, when Local 32BJ organizers started to communicate
with employees at 990 Stewart Avenue, the Respondent was
already aware that organizing had already begun with respect to
at least one other location. Therefore, by May 2003, the Re-
spondent was aware generally that Local 32BJ had begun an
effort to organize its employees. It also was aware with respect
to the present location, that the Respondent knew of Local
32BJ’s organizing efforts by at least one day before June 25,
2003. This is shown by its issuance of a newsletter called
“Plain Talk” on June 25, 2003. (I will assume that it would
likely take at least 1 day to write, print, and distribute such a
newsletter to employees.) And the newsletter makes it plain
that the Respondent was not happy with Local 32BJ’s organiz-
ing efforts. It stated:
All of us know that Local 32BJ has declared war on NOITU
and the Company. We do not know why, except that your
dues must be the incentive and represents a lot of m money to
the unions.
Be on Guard against Local 32BJ’s dirty tricks.
The Union held a meeting at a church on Sunday, June 29,
2003, where some employees signed cards and were given
cards to distribute to other employees at the workplace. They
also signed a petition supporting Local 32BJ that was at least
left on the supervisor’s desk on the following day.
The evidence shows that on Monday evening, June 30, 2003,
the Operations Manager Eddie Matos visited 990 Stewart Ave-
nue and held a meeting with some of the employees in the pres-
ence of Alan Jimenez, a representative of NOITU. The credible
evidence is that Matos asked who had attended the church
meeting with Local 32BJ and which employees had been affili-
ated with that union in the past. I do not credit Matos’ testi-
mony that he was not aware of the church meeting until several
days later. (The Respondent, on July 1, 2003, put out an issue
of Plain Talk that mentioned the meeting at the church on June
NORTH HILLS OFFICE SERVICES 1113
29.) I also conclude that in this respect, the Respondent inter-
rogated employees in violation of Section 8(a)(1) of the Act.
Also on June 30, 2003, Sandra Hernandez, Ana Joya, and
Maria Mendoza talked to other employees during the night shift
and gave them either union cards or some other type of union
literature.
On July 1, 2003, the Respondent issued warnings to these
three employees and each warning stated:
This warning is for interrupting the cleaners on company time
and not permitting them to do their work on June 30, 2003.
The Respondent claims that these warnings were justified
under Board law as it asserts that a company may legitimately
make rules prohibiting employees from engaging in solicita-
tions or distributions of literature in working areas during work-
ing time. Citing Stoddard-Quirk Mfg. Co., 138 NLRB 615, 616
(1962), and Farah Mfg. Co., 187 NLRB 601 (1970).
The problem with the Respondent’s argument is that it did
not have a rule that prohibited either solicitations or distribu-
tions. Therefore, employees who otherwise were engaged in
union activity were not on notice that such activity was prohib-
ited by their employer and could not reasonably have believed
that such union activity might result in disciplinary action
against them. In the absence of a valid rule, it is my opinion,
that the Respondent violated the Act by issuing warnings to
employees who were engaged in this union activity. In this
regard, the evidence shows that these solicitations and/or distri-
butions were extremely short in duration and were not, in fact,
disruptive to their own work or to the work of other employees.
I note that even when an employer promulgates a presump-
tively valid no-solicitation and no-distribution rule, its promul-
gation and enforcement will be unlawful if the reason for its
promulgation is in response to a union’s organizing activity.
Jensen Enterprises, 339 NLRB 877 (2003).
By the same token, I conclude that the Respondent violated
the Act in August 2003, when Riano told employees that they
could no longer talk to each other while at work. Although the
evidence does not show that the Respondent promulgated a new
company wide rule, the evidence does show that at this location
at least, supervisor Riano instructed employees not to talk while
at work, and this therefore became the local rule. In my opin-
ion this instruction was overly broad and I concluded that Ri-
ano’ statements constituted a violation of Section 8(a)(1) of the
Act. Thus, rules that prohibit solicitations on company time are
presumptively unlawful as they can “reasonably be construed
as encompassing both working and nonworking time.” Litton
Systems, 300 NLRB 324 (1990), enfd. 949 F.2d 249 (8th Cir.
1991), cert. denied 503 U.S. 985 (1992); Industrial Wire Prod-
ucts, 317 NLRB 190 (1995), and Eastex Inc., 215 NLRB 271,
274 (1974), enfd 550 F.2d 198 (5th Cir. 1977), affd. 437 U.S.
556 (1978). Prohibitions restricting solicitation during working
hours are facially unlawful because they imply a prohibition
from the beginning to the end of the shift. Our Way, 268
NLRB 394 (1983).
On July 1, 2003, the six night-shift employees who wore un-
ion T-shirts to work, were told by Riano to remove them. Ana
Joya was told that if she didn’t remove the T-shirt she would be
fired. Sandra Hernandez was told that she would receive a
warning if she didn’t remove the T-shirt. On the following day,
when employees again arrived at work with the T-shirts, they
were given company aprons and told that they had to wear
them. These aprons covered up the Local 32BJ T-shirt except
for the sleeves.
Although the evidence shows that the day-shift employees
were required to wear a company uniform, the evidence also
shows that the night-shift employees at this building were not
required to do so until July 2, 2003.
The union T-shirts contained the Local 32BJ logo on the
sleeve. On the front it states, “SEIU Justice for Janitors” along
with a raised fist holding a broom. On the back of the shirt, it
states, “Standing Up For the American Dream.”
The Respondent contends that it was within its rights in tell-
ing the employees to remove the T-shirts and in requiring then
to wear the uniform, which effectively covered up almost all of
the union T-shirt. I do not agree.
Absent “special circumstances” an employer cannot prohibit
its employees from wearing union insignia, buttons, or T-shirts
while at work. Republic Aviation Corp., v. NLRB, 324 U.S.
7933, 801–803 (1945); Wellstream Corp., 313 NLRB 698
(1994); Caterpillar Inc., 321 NLRB 1178, 1180 (1996).
The Respondent might argue that the use of uniforms was
necessary in order to allow the tenants of the building to iden-
tify them as being rightfully on the premises. But although this
would be more appropriate for the daytime employees, it
clearly was not the case for the night-shift employees, who for
the most part, began their work after most of the tenants went
home. Moreover, the credible evidence shows that at least at
this building, the Respondent’s night-shift employees had not
previously been required to wear company uniforms.
The Respondent cites United Parcel Service, 312 NLRB
596, 597 (1993), enf. denied 41 F.3d 1068 (6th Cir. 1994), for
the proposition that “special circumstances” can be demon-
strated to justify a prohibition on union insignia where its dis-
play would interfere with the public image of the employer.
See also Nordstrom Inc., 264 NLRB 698, 700 (1982); Ever-
green Nursing Home, 198 NLRB 775, 778–779 (1972). In
United Parcel Service, supra, the Board held that a small unob-
trusive pin, free of a provocative message, did not unreasonably
interfere with the employer’s public image. On the other hand,
the Board in United Parcel Service, 195 NLRB 441, 450
(1972), refused to find a violation when the employer banned a
much larger pin. Other cases cited by the employer are Produce
Warehouse of Coram, Inc., 329 NLRB 915, 918 (1999); Sears
Roebuck & Co., 300 NLRB 804, 806 (1990). In Noah’s New
York Bagels, 324 NLRB 266, 275 (1997), the Board held that
although the employer could not ban its employees from wear-
ing union T-shirts, it could ban T-shirts that mocked the em-
ployer’s kosher policy. In Pathmark Stores, Inc., 342 NLRB
378 (2004), the Board upheld the employer’s ban on employees
wearing shirts that said, “Don’t cheat about the meat.”
I reject the Respondent’s argument that the statements on
32BJ’s shirts were provocative. The shirts portray a fist hold-
ing a broom and a slogan, “Justice for Janitors.” In my opinion,
the shirts did not disparage the Employer’s product, were to be
worn when the vast majority of the tenants were not present,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1114
and were not remotely comparable to those in Pathmark or
Noah’s Bagels.
Accordingly, I conclude that by prohibiting the employees
from wearing union T-shirts while at work, and by requiring
them to wear company uniforms that largely obscured the mes-
sage on the Union’s T-shirt, the Respondent has violated Sec-
tion 8(a)(1) of the Act.
The evidence in this case shows that on July 1, 2003, the
employees at 990 Stewart Avenue, received pay increases.
This occurred 3 days after the Union’s meeting with the em-
ployees at the church. This also occurred during the middle of
the collective-bargaining agreement between the Respondent
and NOITU and that contract contained provisions for wage
increases made when the agreement was executed. That con-
tract was not set to expire until the end of November 2003 and
from what I can see, negotiations for a new agreement had not
yet started.
The Respondent presented two witnesses to testify about this
subject and each gave contradictory versions. Pellegrino testi-
fied that at some unspecified date in June 2003, NOITU, for
some unexplained reason, asked the Company to bring the
minimum contract wage up to $6.50 per hour and the Company
agreed. The other witness, Mindy Levy testified that the idea of
raising the minimum wage rate was the Company’s and that it
was not initiated by NOITU. The Respondent offered no real
evidence as to when this decision was made, except that it as-
serts in its brief that it must have been made at least 1 week
before July 1, 2003, because that is the amount of time it would
have taken for the outside payroll company to make the
changes effective on July 1. (In its brief, counsel suggests the
date as being June 24, 2003, which would be 1 day before its
Plain Talk publication dated June 25, 2003.)
In any event, it is clear that the Company was aware of Local
32BJ’s organizing activity by May 2003, if not specifically at
990 Stewart Avenue, then at least at its nearby facility in Mel-
ville, New York. That is, the Company was aware by mid-May
2003 that Local 32BJ was intending to organize the employees
in the Company’s existing collective-bargaining unit with
NOITU. Moreover, the Company’s decision to raise wages at
990 Stewart Avenue could easily have been made, contrary to
its assertion, at any time between June 24 and 30. I don’t know
that it impossible to implement a wage increase within a shorter
time than counsel asserts.
Benefits granted upon the advent of a union organizing cam-
paign (assuming the Employer is aware of it), creates a pre-
sumption that they are granted to influence employees to with-
hold their support for unionization. Yoshi’s Japanese Restau-
rant & Jazz House, 330 NLRB 1339, 1344 (2000); B & D Plas-
tics, 302 NLRB 245 (1991); Speco Corp., 298 NLRB 439, 443
(1990). To rebut this presumption, the Employer must establish
a legitimate explanation for the timing of the grant of benefits.
The General Counsel cites Carter’s Inc., 339 NLRB 1089
(2003), for the proposition that an employer failed to rebut the
presumption merely by asserting that there was high employee
turnover and that higher wages were being given by its com-
petitors. In finding the violation, the Board relied on the lack
of evidence showing that the Employer planned or contem-
plated the wage increase before the onset of union activity.
The Respondent cites In re Morse Operations, 336 NLRB
1090 (2001), presumably for the proposition that for pay in-
creases to violate the Act, the General Counsel has to prove that
the Respondent was aware of the Local 32BJ’s organizing ac-
tivity.
Since the wage rates of these employees, as of July 1, 2003,
were contractually set and as I conclude that the decision to
raise those rates was made after the Respondent became aware
of Local 32BJ’s organizing activities and before any new con-
tract negotiations started with NOITU, I find that the Respon-
dent granted this benefit in order to dissuade its employees
from becoming members of Local 32BJ and to induce them to
stay members of NOITU.12
With respect to the September 22, 2003 newsletter referring
to the INS, this same newsletter was previously found to violate
the Act by Judge Edelman who cited 6 West Limited Corp., 330
NLRB 527, 545 (2000). The Respondent asserts that this type
of communication is protected by Section 8(c) of the Act.
Nevertheless, I see no compelling reason to disagree with Judge
Edelman’s finding on this score, particularly as I have con-
cluded that the statements in the newsletter should be taken in
the context with the other numerous violations found in the
present case.
The evidence shows that there were two instances where the
Union and some of the employees engaged in leafleting outside
of 990 Stewart Avenue. This leafleting was carried out in the
parking lot and probably was done at variant distances from the
doors of the building. In any event, the evidence does not show
that the employees, no matter how close they came to the doors,
blocked the ingress or egress of any persons entering or leaving
the premises. Nor is there any evidence to show that this leaf-
leting activity was carried out in anything other than a safe,
inoffensive and peaceable manner. Finally, the evidence does
not show that the Respondent had any proprietary interest in the
property or in the parking lot adjacent to it.
On both occasions, Riano told employees who were engaged
in this leafleting activity that they could not do so because they
were on private property. On the second occasion in October
2003, the building manager’s agent, Kingsley, called the police
but the police told him that the employees were within their
rights.
Riano’s statements border between a company directive and
an assertion of opinion. But Riano was the Respondent’s repre-
sentative when dealing with its employees at 990 Stewart Ave-
nue and his statements that leafleting activity was improper
because such activity constituted trespass (and therefore argua-
bly illegal), may reasonably be viewed by the employees as a

12 A different conclusion would have been reached if NOITU and the
Respondent had commenced contract negotiations to replace the collec-
tive-bargaining agreement that was set to expire in November 2003.
Thus, in RCA del Caribe, 262 NLRB 963 (1982), the Board held that
even where a rival union filed a petition for an election, the employer
was obligated to continue to bargain with the incumbent union and to
execute a contract if an agreement is reached. (Of course such a con-
tract would become null and void if the rival union won the election
and was certified as the exclusive collective-bargaining representative.)
NORTH HILLS OFFICE SERVICES 1115
directive, carrying with it an implied threat of disciplinary ac-
tion. As such, I conclude that these statements constitute viola-
tions of Section 8(a)(1) of the Act. International Business Ma-
chines Corp., 333 NLRB 215, 219–221 (2001).
In my opinion, the discharges of Ana Joya and Sandra Her-
nandez present a difficult issue. To my mind the evidence
shows two possible scenarios concerning their discharges on
Tuesday, October 14, 2003.
Obviously, the first question here is what was the Em-
ployer’s motivation or intent in discharging these two employ-
ees. And in this regard, it is not necessary for the General
Counsel to present direct evidence of discriminatory intent
(such as a smoking gun in the form of an employer memoran-
dum or e-mail), or a confession by one of the owners or manag-
ers. It is enough that the General Counsel prove, through cir-
cumstantial evidence and by a preponderance of the evidence
(not beyond a reasonable doubt or by a clear and convincing
standard), that the Employer’s agent or agents was motivated in
this action by a belief that his employees were engaged in ac-
tivities in support of a union or that they were engaged in pro-
tected concerted activities.
The next question is, assuming that the discharges or other
disciplinary actions were motivated by employee union or pro-
tected concerted activities, would the Employer have taken the
same action for other reasons despite the employees’ union or
protected activity? The issue here again is intent, normally
proved by circumstantial evidence. It is not enough for an em-
ployer to prove that it could or might have taken a disciplinary
action for an alleged employee offense. In the event that the
General Counsel has made out a prima facie case, the Employer
must convince the trier of fact to believe its assertion that it
would have taken the action notwithstanding the employees’
union or protected activity. Therefore, the trier of fact does not
substitute his or her own judgment as to what business actions
are appropriate by a reasonable employer. He or she determines
whether or not to believe the Employer’s asserted business
justification. If the asserted reason is absurd, manifestly false,
contradictory, highly unreasonable, or unlikely, the trier of fact
can reasonably conclude that the person stating the reason is
not telling the truth. And in this regard, the administrative law
judge who is the trier of fact in cases before the NLRB acts
essentially in the same role as the members of a jury do when
deciding the factual questions in a civil action.
Here, the General Counsel has offered substantial evidence
showing the Employer’s knowledge of the union activities of
Joya and Hernandez. She has also offered substantial evidence
to show the Employer’s animus to employee activities support-
ing the organizational efforts of Local 32BJ.
In the present case, there were two events leading up to the
discharges. One involved and incident between Riano and
another employee named Marcia Reyes that occurred on Fri-
day, October 10, 2003. The other involved the fact that on
Monday afternoon, October 14, 2003, employees, including
Joya, Hernandez, and Reyes, participated in leafleting activity
in the parking lot.
With respect to the events on Friday, the credible evidence
shows Reyes refused to follow Riano’s instructions and that she
called him names, including “maricone,” which for Spanish-
speaking men (having an overblown concern about machismo),
seems to be the worst thing one person can call another. Al-
though the General Counsel asserts that the events involving
Reyes are not relevant to the discharges of Joya and Hernandez,
I think that she is incorrect as it was this incident on Friday,
that set the stage for and may very well have influenced the
mind set of Riano on Tuesday.
Concerning Monday, there are a few facts that are not in dis-
pute. First, some employees including Joya, Hernandez, and
Mendoza participated in leafleting activity outside in the park-
ing lot during the afternoon and before their shift started. As
noted above, I have already concluded that Riano came out and
told them that they should not be doing this as they were on
private property. They continued despite his statements. The
second is that at some point after the shift started, Joya asked
Riano if she was going to get a raise for cleaning the bath-
rooms. And the third is that there was a blowup.
The first scenario is that Joya, emboldened by her leafleting
activity on October 14, demanded that Riano give her an an-
swer to her previously requested wage increase and that when
he refused to do so, she flew off the handle and started yelling
at him. In this scenario, Hernandez rushed to Joya’s aid,
whereupon the two of them proceeded to humiliate Riano in
front of the other employees by calling him names including
“maricone,” and thereby leading him to believe (keeping in
mind his Friday experience with Reyes), that he no longer
could command the respect of or control of the employees.
The second scenario is that Riano, upset by the leafleting ac-
tivity that took place earlier that afternoon and miffed by the
employees’ ignoring his direction to leave, overreacted to
Joya’s request for a pay increase and started yelling at her; not
because she was asking for a raise but because of the union
activity that she and the other employees were engaged in. In
this scenario, Joya and Hernandez merely responded to Riano’s
intemperate outburst.
There is no definitive test by which either I or anyone else
can determine which of these two scenarios is substantially
true. Each person involved, asserts that he or she was the soul
of reasonableness and never raised his or her voice. Each as-
cribes the outburst to the other. And neither version is free
from doubt.
On the basis of the record as a whole, including demeanor
considerations, I am going to credit the version given by the
employees and discredit the uncorroborated version given by
Riano. That does not mean that I make this finding with a high
degree of certainty. But on the whole, at least 51 percent of me
believes that the employees’ version of these events is correct.
I therefore conclude that it was Riano and not Joya, who initi-
ated the yelling match in response to her request for a raise.
Although her request for a raise was a personal one and not a
concerted matter, I am inclined to believe that Riano’s overre-
action to her request was motivated by his displeasure with her
and Hernandez’ union leafleting activity that took place earlier
in the day. I do not credit his assertion that either Joya or Her-
nandez engaged in the yelling and cursing that he attributed to
them.
In view of the legal standard set out in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1116
denied 455 U.S. 989 (1982), I conclude that the Respondent
violated Section 8(a)(1) and (3) of the Act by discharging Ana
Joya and Sandra Hernandez.
CONCLUSIONS OF LAW
1. The Respondent, North Hills Office Services, Inc., is an
employer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service Employees International Union, Local 32BJ,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. By threatening to discharge or impose other reprisals on
employees or by discharging Ana Joya and Sandra Hernandez
because of their union membership, activities, or support, the
Respondent has violated Section 8(a)(1) and (3) of the Act.
4. By interrogating employees about their union membership
or activity, the Respondent has violated Section 8(a)(1) of the
Act.
5. By issuing warnings to employees because of their union
activities or support, the Respondent violated Section 8(a)(1)
and (3) of the Act.
6. By directing employees to remove union T-shirts and re-
quiring them to wear company uniforms that substantially ob-
scured the union T-shirts, the Respondent has violated Section
8(a)(1) of the Act.
7. By requiring employees to take separate lunchbreaks in
order to discourage them from engaging in union activities, the
Respondent has violated Section 8(a)(1) of the Act.
8. By prohibiting employees from talking to each other dur-
ing working hours, the Respondent has violated Section 8(a)(1)
of the Act.
9. By directing off duty employees not to engage in union
leafleting activity in the parking lot, the Respondent has vio-
lated Section 8(a)(1) of the Act.
10. By publishing in its newsletter statements regarding an
alleged attempt by Local 32BJ to report employees to the Im-
migration and Naturalization Service, the Respondent violated
Section 8(a)(1) of the Act.
11. By giving wage increases to employees in order to in-
duce them to refrain from joining or assisting Local 32BJ, the
Respondent violated Section 8(a)(1) of the Act.
12. The aforesaid violations affect commerce within the
meaning of Section 2(6) and (7) of the Act.
13. Except to the extent found herein, I recommend that the
other allegations be dismissed.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
The Respondent having discriminatorily issued warnings to
and discharged certain employees, it must offer them reinstate-
ment and make them whole for any loss of earnings and other
benefits, computed on a quarterly basis from date of discharge
to date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
I further recommend that the Respondent be required to ex-
punge from its records any reference to the unlawful discharges
and warnings.
[Recommended Order omitted from publication.]