Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial Services, Joint Employers

National Labor Relations Board - Administrative Judge Opinions

Sep 9, 2016

20-CA-149353 (N.L.R.B. Sep. 9, 2016)

JD(SF)–36–16
San Francisco Bay Area, California
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES
PREFERRED BUILDING SERVICES, INC.
and RAFAEL ORTIZ d/b/a ORTIZ
JANITORIAL SERVICES, Joint Employers
and Case 20-CA-149353
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 87
Carmen Leon, Esq., for the General Counsel.
Norma G.Pizano, for the Regional Director.
Tyler M. Paetkau, Esq., for Preferred Building Services, Inc.
Eric P. Angstadt. Esq., for Ortiz Janitorial Services.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, ADMINISTRATIVE LAW JUDGE. Respondent Preferred Building
Services, Inc. (Preferred) and its subcontractor Respondent Ortiz Janitorial Services (OJS)
provide janitorial services in the greater San Francisco Bay area. The General Counsel alleges
that they are joint employers and that they committed various independent violations of Section
8(a)(1) of the National Labor Relations Act (the Act). Further, the General Counsel alleges that
after employees demonstrated with signs and leaflets from the San Francisco Living Wage
Coalition (SFLWC) and from Service Employees International Union, Local 87 (SEIU Local 87
or the Union), employees were terminated in violation of Section 8(a)(3) and (1) of the Act.
Finally, the General Counsel asserts that motivated by a reasonably foreseeable purpose to chill
unionism at its remaining contract locations, Respondents violated Section 8(a)(3) and (1) of the
Act by terminating a contract and a subcontract for janitorial services.
JD(SF)–36–16
2
Complaint issued on December 30, 2015, and was amended further at the hearing.1 The
hearing was held in San Francisco throughout March and April 2016. On the record2 as a whole,3
and after thorough consideration of briefs filed by all parties, the following findings of fact and
conclusions of law are made.
5
A. Jurisdiction
Preferred, a closely-held California corporation, provides building maintenance and
janitorial services to commercial and residential buildings. It has an office located in South San
Francisco, California. OJS is a sole proprietorship owned by Rafael Ortiz (R. Ortiz) with an 10
office located in San Pablo, California. During calendar year 2014, Preferred and OJS admit that
they satisfied one of the Board’s jurisdictional standards.4 I find that Preferred and OJS are
employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.5
Thus the National Labor Relations Board (the Board) has jurisdiction of this controversy
pursuant to Section 10(a) of the Act.615
B. Labor Organization Status
Although Preferred and OJS deny that SEIU Local 87 is a labor organization within the
meaning of Section 2(5) of the Act,7 the evidence of record clearly indicates that it is an 20
organization that exists to deal with employers regarding employee wages, rates of pay, and
conditions of work. Thus, I find that SEIU Local 87 is a labor organization within the meaning of
Section 2(5) of the Act.

1 The underlying unfair labor practice charge and the first and second amended charge were filed by
SEIU Local 87 on April 1, April 16, and May 27, 2015, respectively.
2 An order correcting the transcript issued on August 31, 2016.
3 Specific credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have been
utilized to assess credibility. Testimony contrary to the factual findings has been discredited on some
occasions because it was in conflict with credited testimony or documents or because it was inherently
incredible and unworthy of belief.
4 Preferred admits that it provided janitorial services valued in excess of $50,000 directly to
customers located outside the State of California. Ortiz admits it provided services in excess of $50,000 to
Preferred within the State of California. The Board has limited its statutory jurisdiction to cases having a
substantial impact on commerce. Annual outflow or inflow, direct or indirect, across state lines of at least
$50,000 is the current discretionary jurisdictional standard for non-retail enterprises. Siemons Mailing
Service, 122 NLRB 81 (1959).
5 Sec. 2(2) of the Act, 29 U.S.C. §152(2), sets out inclusions to and exclusions from the term
“employer.” Sec. 2(6), 29 U.S.C. §152(6), defines the term “commerce” to mean, inter alia, interstate
trade, traffic, commerce, transportation, or communication. Sec. 2(7) of the Act, 29 U.S.C. §152(7),
defines “affecting commerce” to mean “in commerce, or burdening or obstructing commerce or the free
flow of commerce. . . .”
6 Sec. 10(a) of the Act, 29 U.S.C. §160(a), provides, inter alia, that the Board is empowered to prevent
any person from engaging in any unfair labor practice affecting commerce.
7 Sec. 2(5) of the Act, 29 U.S.C. §152(5), provides, inter alia, that the term “labor organization” may
be an organization of any kind which exists in whole or in part, to deal “with employers concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work.”
JD(SF)–36–16
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C. Credibility
Specific credibility resolutions will be made throughout this decision. In making these
determinations, the following general principles have been relied upon. First, each witness’
testimony has been considered “in context, including, among other things, her/his demeanor, the 5
weight of the respective evidence, established or admitted facts, inherent probabilities, and
reasonable inferences drawn from the record as a whole.” Double D. Construction Group, Inc.,
339 NLRB 303, 305 (2003). Second, it is quite common to believe some but not all of a witness’
testimony. Daikickhi Corp., 335 NLRB 622 (2001), citing NLRB v. Universal Camera Corp.,
179 F.2d 749, 754 (2d Cir. 1950), revd. on other grounds 340 U.S. 474 (1951); accord: General 10
Fabrications Corp., 328 NLRB 1114 fn. 1 (1999), enfd 222 F.3d 218 (6th Cir. 2000). Third,
testimony which is contrary to a witness’ economic or self-interest will be accoded added
significance. Flexsteel Industries, 316 NLRB 745 (1995) (testimony of current employees which
is adverse to their employer's interests has inherent reliability). Finally, when a witness testifies
in contradiction to a prior sworn statement or with additional evidence not contained in a prior 15
sworn statement, all the relevant facts and circumstances on the record as a whole will be
considered in determining the credibility of testimony at the hearing.
After consideration of their demeanors, established or admitted facts, and inherent
probabilities, it is generally found that Yunuen Useda (Useda), Balbina Mendoza (Mendoza), 20
Joel Banegas (Banegas), Claudia Tapia (Tapia), and Rosa Franco (Franco) were highly credible
witnesses. The testimony given by each of them contained incredibly sensitive facts. At times,
recesses were required due to emotional or volatile testimony. These incidents appeared sincere –
not contrived. For instance, one witness was reluctant to use “bad” words. One became sick and
incapacitated. Another broke down in tears. Moreover, these witnesses corroborated each other’s 25
testimony in an unrehearsed but authoritative manner. R. Ortiz and his wife Veronica (V. Ortiz),
on the other hand, provided general denials and less than full recollection of events. The general
denials were flat recitations without any specificity. When in conflict with the testimony of
Useda, Mendoza, Banegas, Tapia or Franco, their testimony is generally discredited. Specific
credibility resolutions are below.30
D. Alleged Joint Employer Status
1. Background
35
Preferred was established in 1991 by Gregory Dellanini (G. Dellanini) and Robert Squeri
(R. Squeri). Preferred supplies janitorial, window washing, and carpet cleaning maintenance
services in the San Francisco Bay area. Many of its clients are located in the financial district of
downtown San Francisco. The CEO and President of Preferred is G. Dellanini. The Executive
Vice President is Pete Dellanini (P. Dellanini). R. Squeri is the CFO. These individuals manage 40
the business with assistance from General Manager Rob Nave (Nave) and Lauren Squeri (L.
Squeri),8 Account Manager and Executive Sales and Marketing Director. Both R. Squeri and his

8 L. Squeri’s married name is Lauren Carrigan. However, she was generally referred to as “Lauren” or
“Miss Squeri” throughout the transcript. Her married name was not utilized generally.
JD(SF)–36–16
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daughter L. Squeri are admitted supervisors and agents of Preferred within the meaning of
Section 2(11) and 2(13) of the Act.9
OJS is a sole proprietorship owned by R. Ortiz, an admitted supervisor and agent of OJS
within the meaning of Section 2(11) and (13) of the Act. Preferred and OJS deny that R. Ortiz’ 5
wife, V. Ortiz, is a supervisor or agent of OJS. The Contra Costa County “fictitious business
name statement” signed by R. Ortiz at the time he began doing business lists R. Ortiz and V.
Ortiz as registered owners of OJS. R. Ortiz testified that he listed V. Ortiz as an owner only
because someone in the county clerk’s office told him he had to list a second name on the
statement. The listing of V. Ortiz on the county registration is given little weight as the 10
peripheral purpose of the filing does not in and of itself prove that V. Ortiz is an owner.
After a number of leading questions, objected to by Preferred, employee Useda recalled
that in a conversation in November 2014, V. Ortiz said she was the boss. Useda agreed that V.
Ortiz did not schedule Useda’s hours, hand out pay checks, provide cleaning supplies or adjust 15
working problems. This single statement, which occurred during a heated exchange, elicited
through leading questions, is given slight weight. The record reflects that V. Ortiz and R. Ortiz
sometimes performed rank and file janitorial work together and were typically seen together,
including at meetings with employees. Given these circumstances and on the record as a whole, I
find insufficient evidence that V. Ortiz was an agent or supervisor within the meaning of the 20
Act.10
2. Contractual Relationships
In early 2014, Preferred employed around 100 individuals, 90 percent of them as 25
janitors.11 Preferred has service contracts throughout the Bay area. Some of the service contracts
are entered into between the building owner and Preferred. Others are between Preferred and a
building management company. Preferred fulfills these service contracts either using its own
employees or by subcontracting. Preferred had 22 subcontractors in early 2014. When it
subcontracts the work, Preferred remains contractually responsible for the performance of its 30
contract with the Preferred client – either the building owner or a building management
company. Preferred janitors wear a black, short-sleeved polo shirt with the Preferred logo on the
left front of the shirt.
According to R. Squeri’s undisputed testimony, Preferred and OJS do not and have never 35
shared office space, tools or equipment. Preferred has “buying power” and maintains a supplier

9 Sec. 2(11) of the Act, 29 U.S.C. §152(11), provides, inter alia, that in general the term “supervisor”
means any individual with authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward or discipline employees or responsibly direct them. Sec. 2(13) of the Act provides that in
determining whether any person is an “agent” of another person, the question of whether the specific acts
performed were actually authorized or subsequently ratified are not controlling.
10 As to the General Counsel’s argument that V. Ortiz possessed apparent authority to make certain
statements, this will be addressed below.
11 At one point in the transcript, R. Squeri testified pursuant to FRE 611(c) that there were about 100
employees in 2014. At another point in the transcript, R. Squeri testified that currently (meaning April 28,
2016) there are between 150-200 employees, 95-98 percent janitors. The exact number and percentage
need not be resolved.
JD(SF)–36–16
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relationship for over 25 years. Pursuant to a resale license, it makes its purchased supplies
available to its subcontractors at a 10 percent markup. Preferred does not share bank accounts
with any subcontractors. Preferred has separate accounting records and personnel files from OJS.
One of Preferred’s service contracts, dated April 2, 2012, was captioned DivcoWest Real 5
Estate Services Service Agreement – Janitorial Services. It stated that it was entered into
between DWF III Hawthorne, LLC and Preferred for day and night janitorial services for the
period May 1, 2012 through April 30, 2013 at 55 Hawthorne. This service contract was renewed
in 2013 and 2014. At some point during this period, the adjoining building at 631 Howard was
added to the service contract. In 2014, 55 Hawthorne and 631 Howard were sold. The new owner 10
engaged Harvest Properties to manage both buildings. In a letter to Preferred of July 17, 2014,
Harvest Properties stated that all valid service contracts with the prior owner would be honored
by the new owner. During this period, Preferred also had contracts at other locations, including
but not limited to, One Kearny, One Hawthorne, 74 New Montgomery, Yerba Buena Lofts, One
Rincon, and 77 Geary/30 Grant.15
R. Ortiz became an employee of Preferred in 2001. He initially worked as a janitor and
eventually established OJS as a sole proprietorship in 2012. No cash funding was necessary to
start the business. Preferred does not own any equity in OJS. R. Ortiz consulted with Nave of
Preferred about how to start the enterprise. Nave told him he would need a license12 and 20
insurance.13 R. Ortiz paid for the business license and insurance. No one from Preferred ever
gave him any money to help him start his business. According to P. Dellanini, the two companies
do not share any tools or equipment. They do not share bank accounts or accounting records.
This testimony is undisputed and credited.
25
R. Ortiz procured equipment such as mops, brooms, and vacuums as well as cleaning
supplies. He also purchased uniform shirts. According to R. Ortiz, he only purchased shirts that
said “Janitorial.” OJS does not share equipment with Preferred. One method for his purchasing
of equipment, supplies, and shirts was to place an order with Preferred. Preferred ordered such
supplies from its distributor and sold them to OJS and other subcontractors with a mark up for 30
Preferred’s profit. Even with this mark up, the prices offered by Preferred were competitive,
according to R. Squeri. All of OJS’ business has come from subcontracts with Preferred.
Preferred and OJS do not share office space and have no shared supervisory personnel. There is
some dispute regarding whether OJS provided uniform shirts to its employees which said
“Preferred.” However, the remainder of R. Ortiz’ testimony set forth in this paragraph is 35
undisputed and credited.
Pursuant to an October 2012 “Building Maintenance Service Agreement (Independent
Contractor)” (referred to here as the subcontract agreement), OJS agreed to provide office
janitorial cleaning “with standards established by [Preferred] from time to time” at properties 40
identified in the appendix, which “may be modified from time to time to add or remove
particular PREMISES.” The subcontract provided that it was non-exclusive and the
subcontractor bore the risk of loss as well as potential for profitability. It further provided that

12 R. Ortiz applied for his business license in March 2012.
13 R. Ortiz obtained a commercial general liability policy with workers compensation and employer’s
liability coverage dated January 2014.
JD(SF)–36–16
6
OJS “accepts this engagement and undertakes to perform the SERVICES and all related duties
and obligations at all times independently, actively, diligently and continuously in compliance
with the terms of this Agreement.”
The subcontract sets out an independent contractor relationship as follows:5
Independent Contractor. [OJS] is not a partner, joint venture, agent or employee
of [Preferred] for any purpose whatsoever, but is an independent contractor. [OJS]
shall have sole responsibility for and control over the manner and means of
performing the SERVICES in conformance with all legal, governmental and 10
regulatory requirements. [Preferred] is interested only in the results of the
SERVICES performed by [OJS]. [Preferred] has no right to, and does not, control
the manner or prescribe the method or means used by [OJS] to provide the
SERVICES. Without in any way limiting the generality of the foregoing, by
initialing below, [OJS] acknowledges its familiarity with and ability to satisfy the 15
following conditions required by [Preferred]:
* * * *
Profit or Loss. The potential for profitability and the risk of loss resulting from 20
[OJS’] performance of the SERVICES under this Agreement are entirely for
[OJS’] own account. The manner of performing the SERVICES is determined
solely by [OJS]. [Preferred] offers no assurance with respect to [OJS’]
profitability and assumes no responsibility or liability for any losses suffered by
[OJS]. [Preferrred] may, in its sole discretion, from time to time offer [OJS] new 25
job assignments. [OJS] has the right to accept or decline any such offer.
[Preferred] may take [OJS’] history of such acceptances and refusals into account
in offering new assignments.
Expenses and Disbursements. All expenses and disbursements, including, but not 30
limited to those for labor, materials, equipment, supplies, travel and maintenance,
office rental, clerical assistance, and general overhead and administrative costs,
that may be incurred by [OJS] in connection with this Agreement shall be borne
wholly and completely by [OJS]. [Preferred] shall not be obligated to advance any
such amounts nor shall [Preferred] be in any way responsible or liable therefor.35
****
No Supervision or Control by [Preferred]. [Preferred] does not supervise or
regulate [OJS] other than as required by any governmental authority or regulation.
Neither [OJS] nor any [OJS] REPRESENTATIVE is required to attend any 40
training or employee meetings conducted by [Preferred]. [Preferred] does not
exercise any disciplinary authority or control over [OJS] or [OJS’]
REPRESENTATIVES. [Preferred] does not require [OJS] to provide any
mandatory training.
45
JD(SF)–36–16
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“OJS REPRESENTATIVES,” a subcontract term, refers to OJS employees, agents,
servants, contract workers and representatives.” The subcontract provides that OJS “has sole
discretion to hire or engage these individuals. The subcontract further provides that OJS is
“solely responsible” for the supervision and control of its employees, agents, etc. and Preferred
has no power or authority over OJS’ “selection, hiring, firing, the setting of wages, hours and 5
working conditions and the adjustment of grievances.” Preferred does not supervise OJS and
does not exercise any disciplinary authority or control over OJS employees.14 OJS agrees to
indemnify Preferred for any claims regarding wages, salaries, expenses, or any other form of
compensation.
10
Under the terms of the subcontract, OJS is solely responsible for “the direction,
supervision and control” of OJS employees including their “selection, hiring, firing, the setting
of wages, hours and working conditions and the adjustment of their grievances.” Further, OJS is
responsible for determining the method, means, and manner of ensuring that all services are
performed in accordance with applicable laws including payment of wages and withholdings, 15
workers’ compensation, the Service Contract Act of 1965, nondiscrimination laws, and work
authorization status.
According to the subcontract, OJS is responsible for providing all equipment, materials,
and supplies at its own expense. In practice, Preferred sells most equipment, materials and 20
supplies to its subcontractors at a savings to open market prices. OJS is responsible for care and
maintenance of its equipment. To the extent OJS leases equipment from Preferred, OJS is
responsible for any damage or loss. Further, the subcontract provides that OJS may not submit
any claim for payment directly to the building owner or management company.
25
A separate appendix for each subcontract provided a description of the services to be
performed by the subcontractor and specified the supplies, materials, and equipment to be
furnished by the subcontractor. For instance on November 16, 2012, Preferred and OJS executed
a 45-day appendix for 55 Hawthorne Street. The terms required that OJS furnish all janitorial and
cleaning supplies and equipment. A similar appendix was executed on November 1 between 30
Preferred and OJS for 631 Howard. Both of these appendices provided for a day porter at a set
monthly fee and for janitorial services billed on a set amount “per square foot” basis. Both
expired on December 31, 2012. Both were replaced by appendices for the period January 1
through December 31, 2013. Further appendices replaced the 2013 appendices, these for January
1 through December 31, 2014.35
R. Ortiz agreed that he simply signed the Appendix A subcontracts that Preferred offered
him. There is no evidence that he bid the contracts or negotiated the terms. R. Ortiz explained
that Preferred already has a contract with the building for specified cleaning services and as a
subcontractor, he must follow those terms as set out in the janitorial specifications. OJS also 40
submits monthly invoices to Preferred for extra work performed. When Preferred pays OJS, it
sends a list of all the jobs he has performed itemizing each payment. L. Squeri is OJS’ account
manager.

14 This statement amalgamates provisions in two separate portions of the subcontract, Secs. 3(e) and
4(c).
JD(SF)–36–16
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L. Squeri began managing the account at 55 Hawthorne-631 Howard in April 2012. The
work was subcontracted initially to Miguel Lemis and then to Smart Janitorial, owned by
Giovanni [last name unknown]. In October or November 2012, Preferred subcontracted this
property to OJS. In July 2014, new building management, Harvest Properties, took over. Ben
Maxon (Maxon) was their property manager. OJS continued to perform pursuant to the 5
subcontract with Preferred after Harvest Properties assumed management.
3. Hiring, Firing, and Discipline
According to R. Ortiz, Preferred did not refer any applicants for employment to OJS. 10
Preferred conducts its own background checks for its direct janitorial employees. It does not
conduct background checks on its subcontractors’ employees. This testimony is uncontested by
any other record testimony and is credited.
R. Squeri testified that Preferred does not give feedback or direction to its subcontractors 15
regarding employment or personnel matters. R. Ortiz has never consulted with R. Squeri
regarding employee issues. Preferred does not advise its subcontractors like OJS on who or how
long to schedule employees. This is up to the subcontractor. This general testimony is not
credited due to specific conflicting testimony from L. Squeri, R. Ortiz, Useda, Mendoza, and
Banegas.20
According to P. Dellanini, Preferred has never given OJS any input on hiring, firing,
discipline, staffing, or number of hours and shifts of OJS employees. He also testified that
Preferred has never been involved in disciplining or counseling subcontractor employees.
“Employment Responsibilities,” in Preferred’s subcontract with OJS, provides that OJS has sole 25
responsibility for “direction, supervision, and control” of OJS employees. Referring to this
section, P. Dellanini testified that it accurately described the actual relationship between
Preferred and OJS regarding selection, hiring, firing, wages, hours, and working conditions as
well as adjustment of grievances. This may have been P. Dellanini’s understanding. However, as
will be seen below, the specific day-to-day facts as related by L. Squeri, R. Ortiz, Useda, 30
Mendoza, and Banegas belie P. Dellanini’s assertion. Thus, P. Dellanini’s general testimony that
Preferred played no part in OJS’ selection, hiring, firing, disciplining or counseling, wages,
hours, and working conditions as well as adjustment of grievances is not credited.
In July 2014, janitor Useda took a backpack from a donation bin in the lobby of 55 35
Hawthorne. Prior to taking the pack, it is undisputed that Useda thought she had received
permission from a building clerical to take it. On the following day, R. Ortiz was waiting for
Useda in the lobby when she reported to work. R. Ortiz said that Useda was suspended15 because
she had stolen a backpack. He said “those were L. Squeri’s orders and that he could not do
anything for me.” Coworker Franco was present during this conversation and recalled that R. 40
Ortiz said, “it was the order of the female boss that he should dismiss her.” On cross-
examination, Franco agreed that the female boss was named “Lauren” and also agreed that she
had never met “Lauren.”

15 On direct examination, Useda testified that R. Ortiz fired her. On cross-examination, she agreed
that she had been suspended for one week.
JD(SF)–36–16
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According to R. Ortiz, after Useda was removed, L. Squeri and the building manager
investigated the incident. L. Squeri told R. Ortiz that there was a video of the incident. R. Ortiz
did not review the video or speak to building management about the incident. L. Squeri did view
the video and speak to the building clerical. She determined that there had been a
misunderstanding. In an email dated July 23, 2014, L. Squeri wrote to the property manager, 5
In reviewing the video footage and after speaking to the [building clerical],
everyone was aware of the situation strongly felt it was a misunderstanding and
that [Useda] did not act maliciously. . . . Preferred does have a policy that nothing
be removed from the work place without my authorization. However, given the 10
circumstances as well as the length of time (over 2 years), consistency and care
[Useda] has put into her job I felt it was best to reinstate her. However, I did tell
[Useda] along with every other custodian at the building that if another violation
of removing something from the building occurs without my permission it will
result in immediate termination . . . no questions asked.15
A week after the incident, R. Ortiz called Useda and told her that she could return to
work, “And he said that Lauren said that she was going to give me another opportunity.”
According to R. Ortiz, he and L. Squeri both arrived at the same conclusion. That is, that Useda
should be removed from the building after taking the backpack.20
L. Squeri testified that she was not the decision maker but merely relayed
communications from the tenant to R. Ortiz. Thus, the tenant emailed L. Squeri about the
backpack being taken from a charity bin in the tenant’s suite. L. Squeri relayed this to R. Ortiz
who reported back that Useda believed she had been given permission to take the backpack. L. 25
Squeri conveyed this to the tenant who reported back that there may have been a
miscommunication due to a language barrier. Thus, the tenant had no objection to Useda
continuing to work with them. L. Squeri reported this to R. Ortiz: “So I just passed that on to
Rafael and he chose to reinstate her.” L. Squeri’s testimony that she was merely a conduit for
information is not credible and is not supported by R. Ortiz’ testimony or by the email she sent 30
during the investigation. Rather, it appears that L. Squeri alone investigated the matter and made
the decision to return Useda to work. This is what R. Ortiz told Useda in Franco’s presence.
Useda was a solid witness who exhibited recall of events without hesitation and
withstood lengthy cross examination in an equable manner with focus on the actual underlying 35
events. She was forthright and consistent on direct and cross. Her testimony regarding the
backpack incident was thorough and straight forward. Moreover, it is consistent with the emails
of L. Squeri that R. Ortiz told Useda that L. Squeri made the decision to give Useda another
opportunity. Thus, Useda’s testimony, corroborated by Franco and consistent with the undenied
statements attributed to R. Ortiz, is credited.40
Moreover, there is no evidence that R. Ortiz took part in the investigation of the backpack
incident. He did not testify that he and L. Squeri communicated about whether to reinstate Useda
or not. Additionally, it is telling that R. Ortiz considered L. Squeri his supervisor. In light of the
uncontroverted testimony that L. Squeri alone investigated this incident, Useda’s highly 45
believable testimony that she was told that L. Squeri made the decision to reinstate her is
JD(SF)–36–16
10
credited. Thus, the record as a whole indicates with regard to the backpack incident that
Preferred was involved in suspension, investigation, and reinstatement of Useda, an OJS janitor.
On September 19, 2013, janitor Mendoza was terminated at 55 Hawthorne. “Mr. Rafael
told me that Mrs. Lauren said that she didn’t want me there because I had been using the 5
computer.” Apparently Mendoza’s son, who accompanied her to work on that occasion, was the
individual who had used the computer. Mendoza attempted to speak to L. Squeri but did not
reach her. According to R. Ortiz, the office manager and L. Squeri investigated this matter. In an
email to building management dated September 19, 2013, L. Squeri stated,
10
I have already let go of the janitor that authorized her son to enter the building,
and I will be speaking to the rest of the crew to remind them of our rules and to
make sure that they all understand the repercussions of bringing unauthorized
individuals into the building, so this does not happen again.
15
L. Squeri, on the other hand, testified that she merely reported this matter to R. Ortiz and
he investigated the matter. She did not speak to Mendoza about this incident. L. Squeri testified
that R. Ortiz reported back that Mendoza’s son was on site and had used a computer in a tenant’s
office. L. Squeri explained that the building management at 55 Hawthorne knew that a
subcontractor cleaned their building. Nevertheless, L. Squeri explained, “even though they did 20
know that the subcontractor, I am the face and I deal with strictly the property managers. So
that’s the explanation for the language [in the email]. As far as they’re concerned, their contract
is with us and that’s who they deal with.” According to L. Squeri, she “strictly move[s]
information.”
25
Mendoza testified over the course of two days about events which occurred from the fall
of 2013 through early 2015. Her demeanor over this period of time was exceptional and her
testimony highly credible, even when repeating sensitive conversations. Her testimony that R.
Ortiz told her that L. Squeri did not want her working in the building anymore is thus highly
credible. Further, it is supported indirectly by L. Squeri’s email that she has “let go of the 30
janitor.” Accordingly, with regard to this unauthorized guest/computer incident, it is found that
Preferred investigated it and determined that the OJS janitor should be discharged.
In October 2013, Mendoza began working at 631 Howard. According to Mendoza, “Mr.
Rafael [Ortiz] called me to tell me that Mrs. Lauren [Squeri] said there was another building and 35
asking me if I wanted to work there.” Mendoza’s schedule at 631 Howard was Monday through
Friday from 10 a.m. to 2 p.m. On her first day at 631 Howard, Mendoza was greeted by Ortiz
and L. Squeri. According to Mendoza, L. Squeri said she was happy to see that Mendoza was
going to be working for “them” again. Both L. Squeri and R. Ortiz explained Mendoza’s duties
to her. Due to a BART strike, Mendoza gave up this job within a month. Mendoza’s testimony 40
that L. Squeri was involved in rehiring her and explaining her duties to her is credited. Thus it is
found that L. Squeri of Preferred was involved in rehiring Mendoza at 631 Howard and
explaining her duties to her.
In early June 2014, R. Ortiz called Mendoza and said, “there was a new opportunity or a 45
job and he said that Mrs. Lauren wanted to know if I would take it.” Mendoza took the job at
One Kearny beginning June 9, 2014. Her schedule was 5 p.m. to 1 a.m. Monday through Friday
JD(SF)–36–16
11
for the first month. Mendoza’s testimony that R. Ortiz told her on two occasions that L. Squeri
wanted to know if Mendoza would accept employment is credited for the reasons stated above.
Thus, it is found that on yet another specific occasion, Preferred took part in hiring an OJS
employee.
5
4. Supervision, Direction of Work, and Hours
R. Ortiz testified that no one from Preferred ever gave OJS employees instructions or
directions on how to perform their work. P. Dellanini testified that Preferred does not instruct
OJS employees when and where to report to work, when to take breaks, and does not monitor 10
OJS employees hours of work. According to P. Dellanini, Preferred and OJS do not share any
employee handbook or any other written employment policies. P. Dellanini testified that
Preferred has no input into OJS’ rates of pay or work schedules, except that some buildings do
not allow janitorial services until after 6 p.m. Finally, P. Dellanini testified that Preferred and
OJS maintain separate personnel files. 15
Consistent with P. Dellanini’s testimony, there is no evidence that Preferred instructs OJS
employees on when and where to report to work and when to take breaks. There is no evidence
that Preferred and OJS routinely share tools or equipment. There is no evidence of shared bank
accounts, accounting records, employee handbooks, or other written employment policies. There 20
is no evidence that Preferred has input into OJS’ rates of pay or work schedules. There is no
evidence that OJS and Preferred share personnel files.
However, the general testimony from R. Ortiz and from P. Dellanini, an executive who
does not deal on a day-to-day basis with OJS, goes only so far. Specific testimony paints a 25
different picture regarding Preferred instructing and directing OJS employees on how to perform
their work.
On June 9, 2014, R. Ortiz signed a subcontract for One Kearny. He recalled that L.
Squeri told him there was an opportunity there and they arrived at a verbal agreement after she 30
gave him the square footage and the number of people needed was decided. In his deposition, R.
Ortiz stated that L. Squeri told him that two employees were needed for the contract. After
reconsidering, R. Ortiz stated that his deposition was correct. Thus, the deposition statement is
credited and it is concluded that L. Squeri of Preferred determined the number of OJS employees
to handle the job.1635
R. Ortiz denied that he ever referred to L. Squeri as a supervisor. However, R. Ortiz
agreed that in his pre-trial deposition he stated: “She is the one that gives me the jobs, she is the
one that – she is the one that goes with me walking through in the building. She – she is – to me,

16 At hearing, Respondent Preferred objected to use of R. Ortiz’ deposition testimony because
Preferred was not allowed to be present at the deposition. Apparently, according to counsel for the
General Counsel, when alleged joint employers do not admit that they are joint employers, the General
Counsel’s policy is to not allow representatives of the alleged joint employer to be present during
investigation of witnesses produced by the other alleged joint employer. However, there is no evidence
that OJS’ attorney was not allowed representation during the investigatory deposition. Thus, the objection
was overruled.
JD(SF)–36–16
12
she’s like a supervisor so I can tell the employees what they have to do. She is a supervisor just
for myself.” This deposition testimony is credited.
Further, R. Ortiz agreed that he discussed customer complaints with L. Squeri. He usually
spoke with L. Squeri on a daily basis. R. Ortiz let L. Squeri know if one of his janitors would be 5
absent for the day. He also let her know if he would be absent from his day porter position at 55
Hawthorne and adjoining building 631 Howard. R. Ortiz did not communicate directly with the
building representatives of 55 Hawthorne, 631 Howard, 74 New Montgomery and One Kearny,
where he had subcontracts. Communications went through L. Squeri and she relayed them to R.
Ortiz. 10
Mendoza reported to R. Ortiz, who initially introduced himself as a Preferred manager:
“When I met him, he said he was going to stay as a manager and that he worked for the
company, Preferred.” Mendoza testified that R. Ortiz reported to L. Squeri. She based this
conclusion on R. Ortiz’ telling her, “that he had to give her report -- all the reports and she was 15
the one who was going to let us know what we needed to do.” Mendoza also testified that
whenever she needed permission for leave, R. Ortiz would check with L. Squeri first.
These facts are not indicative of sole management of employee supervision, direction of
work and hours by OJS. Rather, these facts support a finding that Preferred was involved in 20
formulating and directing the duties of OJS employees. Thus, contact between R. Ortiz and L.
Squeri was on a daily basis as boss to subordinate. Such contact goes far beyond telling a
subcontractor what its duties are and allowing the subcontractor to effectuate these duties. Based
on these facts, it is concluded that Preferred was involved in the supervision and direction of OJS
janitors.25
When OJS took over the subcontract at 55 Hawthorne in late 2012, R. Ortiz spoke to
Useda and told her that he would be supervising her. Useda testified that R. Ortiz said, “That we
were going to be better [than the prior subcontractor], that we were going to have work for the
company, for Prefer.” Useda noticed that whenever she asked for permission to miss work, R. 30
Ortiz responded that he would notify L. Squeri. About one week after R. Ortiz began, he told
Useda that L. Squeri had authorized only six hours and he had been paying for a seventh hour. R.
Ortiz said he was not going to continue paying the extra hour.
R. Ortiz recalled that this reduction in hours was due to tenants moving out and 35
consequently there being less space to clean. R. Ortiz denied that L. Squeri ever told him to
reduce the work hours of his employees. P. Dellanini testified that he was unaware of any
instruction from Preferred to reduce OJS employee hours.
Useda’s testimony that R. Ortiz told her that L. Squeri told him to reduce hours of work 40
is credited. Both P. Dellanini and R. Ortiz testified about this matter in general while Useda
recalled a specific conversation. Her testimony is this regard was highly believable, open, and
consistent. Further, this testimony is consistent with that of janitor Banegas, whose hours were
similarly reduced. Based upon this testimony, it is concluded that Preferred was involved in
setting the hours of OJS janitor Useda.45
JD(SF)–36–16
13
In about July 2014, about one month after Banegas began working at One Kearny, R.
Ortiz reduced his hours from seven to six hours per day. R. Ortiz told Banegas that “Lauren” told
R. Ortiz it was too little work for too much time. R. Ortiz recalled this reduction in hours and
attributed the reduction to space becoming vacant. Banegas’ testimony is credited. Banegas
testified over a period of two days in a convincing and consistent manner with a highly credible 5
demeanor. He readily admitted when he could not recall specific dates. As to the reduction in
hours, Banegas’ testimony that R. Ortiz stated that L. Squeri told him to reduce hours is credited.
Thus, it is concluded that Preferred was involved in setting the hours of OJS janitor Banegas.
Similar to her prior placement at 55 Hawthorne, after she began working at One Kearny, 10
Mendoza was told by R. Ortiz when she needed permission or when there was a complaint, “that
he needed to let Mrs. Lauren know about it.” A text from R. Ortiz on September 18, 2014 asked
Mendoza to reply stating what time she finished her shift so he could tell L. Squeri. This
testimony is similar to other testimony above that consistently indicates that R. Ortiz consulted
with L. Squeri when OJS janitors were absent or needed to leave work. Thus, it is concluded that 15
Preferred was involved in scheduling OJS janitor Mendoza’s hours of work.
Mendoza cleaned the bathrooms and kitchens on the second and fourth through tenth
floors as well as the lobby at One Kearny. After Mendoza’s first month working at One Kearny,
around July 2014, R. Ortiz told Mendoza and the other workers including Banegas, “that Mrs. 20
Lauren said that she was going to take away two hours because there was not enough work for
all the time that we were working.” R. Ortiz said he would pay for one extra hour so employees
could work seven hours rather than six. This is consistent with the testimony of Banegas and
Useda and is credited. Thus, it is concluded that Preferred was involved in setting the number of
hours of work for OJS janitors.25
On arriving each day, Mendoza signed in with the security guard at One Kearny and
wrote “Preferred” in the column next to her name, as did all janitorial employees at One Kearny.
Mendoza testified that R. Ortiz told employees to write “Preferred” in that column. Mendoza’s
co-worker Banegas confirmed that he also was told by R. Ortiz to fill out the form by writing 30
“Preferred” in the column after his name.
According to P. Dellanini, Preferred did not require any of the OJS employees to sign in
and out. R. Ortiz explained that the security at this building required janitors to sign in to keep
track of who had been given keys. R. Ortiz understood that the form was created by building 35
security. OJS did not receive a copy of the sign-in sheet. R. Ortiz did not testify regarding
whether he told employees to write “Preferred” after their name. On the whole, the testimony
regarding the sign-in sheets warrants the conclusion that OJS held out its employees as those of
Preferred in directing them to sign in referencing Preferred.
40
On January 3, 2014, OJS renewed its subcontract for 631 Howard Street without any
change to the terms of its prior subcontract. No specific hours were set out for the day porter.17
That information was given to R. Ortiz verbally. No specific amount of money is set out for the

17 According to an investigative deposition, R. Ortiz testified that the contract sets forth how many
hours the employee has to be there. The General Counsel offered this deposition testimony as a prior
inconsistent statement. It is definitely an inconsistent recollection of a written document but the issue of
whether R. Ortiz accurately recalled the terms of this written document are not relevant.
JD(SF)–36–16
14
evening shift but the subcontract appendix states that it will be paid at a certain amount per
square foot. The square footage of the building was given to R. Ortiz verbally. L. Squeri agreed
that she made recommendations on the number of hours needed to clean a space based on the
square footage of the space. When reminded that she had previously testified in a Labor
Commission hearing that she recommended the number of custodians to be hired, she explained, 5
that, “it’s essentially hours, so I’m providing my recommendation on how much time you need
to clean square footage.” It is concluded that Preferred recommended the number of employees
for this subcontract.
In October 2013, Tapia was hired to work at 631 Howard from 11 a.m. to 3 p.m., 10
Monday through Friday. Eventually her hours were extended to six hours per day and then to
eight hours per day. Both R. Ortiz and L. Squeri were waiting in the lobby for her when she
arrived on her first day. L. Squeri told Tapia that she was happy she had come back “to work for
them.”18 At the time Tapia was hired, L. Squeri said that Tapia would receive T-shirts to wear
and told Tapia that, “she was like the boss, the boss of Mr. Rafael Ortiz as well.” L. Squeri and 15
R. Ortiz showed Tapia the building and various suites that she would clean. Thus, it is concluded
that jointly Preferred and OJS greeted Tapia, stated they were happy she would be working for
them again, and showed her the duties she would perform. The inference to be drawn from this
uncontroverted testimony is that Tapia was working both for Preferred and OJS. At a minimum,
it is concluded that Preferred participated in instructing Tapia on her duties.20
L. Squeri receives numerous emails from property management. For example, she is
notified of special events which may require that the building show at its best condition. She is
notified when plastic bags are placed in recycling bins. She is notified when the cleaning crew
leaves the lights on all night. She also notifies tenants if the day porter will be absent. L. Squeri 25
testified that when she learns of special concerns or services needed in a particular building
which OJS subcontracts, she passes these directions along to R. Ortiz. L. Squeri explained that
when she stated in an email regarding cleaning a refrigerator, “I will let the crew know they
shouldn’t throw anything away,” she meant that she would relay this to R. Ortiz. She testified
that she never speaks to the janitors – she just relays information through R. Ortiz. Similarly, 30
when One Kearny property managers reported problems with janitors mixing recycling and trash
in the recycling bins, L. Squeri reported this to R. Ortiz.
At another building, 55 Hawthorne, when the tenant of a suite complained about the back
door being left unlocked and that the cleaning had been inadequate, L. Squeri responded by 35
email of April 16, 2014:
There is a relatively new custodian handling this suite. Rafael [Ortiz] checked in
with Linda this afternoon to get the specifics, and we will both talk to Rosa [the
new custodian] this evening to ensure we get this all taken care of right away. 40
Thank you for bringing this all to my attention.
The emails and the other communications give the impression to building management
that the janitors cleaning their buildings are employed by L. Squeri’s employer Preferred or

18 Tapia filled in for R. Ortiz as day porter on Fridays at 55 Hawthorne. She continued these duties for
another month after beginning work at 631 Howard.
JD(SF)–36–16
15
jointly by Preferred and OJS. These communications do not directly prove that the impression is
correct or incorrect but, in light of employee elucidation, an inference is warranted that the
impressions are correct.
In 2014, janitor Banegas, who had worked directly for Preferred since 2008, received a 5
call from Viscarra (a Preferred subcontractor) asking him to work at One Hawthorne. Banegas
accepted and worked Saturday and Sunday from 8 a.m. to 2 p.m. Banegas also covered for other
employees of One Hawthorne during the week. He saw L. Squeri visiting the building on
Tuesdays or Wednesdays when he worked during the week. About five months later, R. Ortiz
took over from Viscarra. After speaking with R. Ortiz, Banegas began working 8 a.m. to 4:30 10
p.m. on Saturday and Sunday. R. Ortiz told Banegas that if any of the clients in the building
asked him who he worked for, he should respond that he worked for Preferred. Banegas
sometimes could not report for work. On those occasions, he called R. Ortiz. According to
Banegas, R. Ortiz routinely responded, “let me talk to Lauren.” This testimony is credited.
15
In June 2014, R. Ortiz placed Banegas at One Kearny from 5 p.m. to 12:30 a.m.,
Monday through Friday. Banegas’ coworkers at One Kearny were Mendoza and Rafael, Jr., the
son of V. and R. Ortiz. Banegas continued working at One Hawthorne on the weekend. Banegas
testified that when he called R. Ortiz to tell him he could not report for work due to back pain, R.
Ortiz responded that was fine and that he would let L. Squeri know. For the reasons stated above, 20
Banegas’ testimony is credited.
Banegas interacted with R. Ortiz when something additional was wanted by a customer.
For example, he recalled that R. Ortiz told him to vacuum an area under a large white table on
the second floor. R. Ortiz told Banegas that L. Squeri had asked for that. Another time, R. Ortiz 25
told Banegas to go back to the ninth floor hallway and re-vacuum because L. Squeri had texted
him about it. R. Ortiz testified that he did not recall receiving any such text from L. Squeri.
Banegas’ testimony is credited on this matter.
5. Wages30
There is no evidence that Preferred set wage rates for OJS employees. P. Dellanini
confirmed that the two companies have separate payroll records. The record clearly reflects that
even though employees Mendoza, Franco, and Useda testified that they were employed by
Preferred, these employees were not on Preferred’s payroll and were paid for their employment 35
by OJS.
6. Other Terms and Conditions of Employment
Many of OJS’ employees testified that they worked for Preferred. For instance, Mendoza 40
testified that she began working for Preferred at 55 Hawthorne in October 2012. Similarly,
Useda testified that she began working for Preferred at 55 Hawthorne in September 2012. Franco
testified that she began working for Preferred in March 2014. However, Mendoza and Franco
and other OJS employees agreed that they were paid by OJS. The testimony of these employees
is not discredited. The record indicates that employees of OJS were sometimes held out as 45
Preferred employees and some of them were told to sign “Preferred” on sign-in sheets. Thus the
testimony that they were Preferred employees is consistent with actions of Preferred and OJS.
JD(SF)–36–16
16
However, it is concluded that Preferred and OJS did not share any employees. Rather, by their
actions, the two entities blurred the employment relationship to building management and
employees.
A further factor creating such confusion was the logo on OJS janitors’ shirts. Sometimes 5
OJS janitors wore black T-shirts that had the word “JANITORIAL” written in all green capital
italics on the upper left front portion of the shirt. Sometimes OJS janitors wore black polo shirts
with the word “Preferred” printed in black on a green sideways diamond with the further words
in small print “BUILDING SERVICES” printed on the two bottom facets of the diamond shape. At
the time she was hired to work at 631 Howard in October 2013, OJS janitor Mendoza was given 10
four shirts that said “Preferred” on them. Mendoza’s testimony that she was given shirts with the
“Preferred” logo on them is credited and consistent with employee production of similar
“Preferred” shirts at hearing.
When janitor Tapia received her shirts, they had the “Preferred” logo on them. She also 15
received a jacket that said “Preferred” and a sweater that said, “Janitor.” When Tapia observed
R. Ortiz working as day porter, he wore a black shirt that had the “Preferred” logo on it. L.
Squeri testified that the only shirts Preferred sold to its subcontractors said “Janitorial” on them.
When Mendoza began work in 2013 at One Kearny, she was given four black shirts from R.
Ortiz. The shirts said “Janitorial.” In around November 2013, R. Ortiz gave Useda two more 20
shirts. One said “Janitorial” and one said “Preferred.” Neither of these shirts fit her so she asked
for another size. R. Ortiz gave her the new size of shirts later and they said “Janitorial.” R. Ortiz
denied that he purchased any shirts that said “Preferred.”
Mendoza wore both the black “Preferred” shirts and the black “Janitorial” shirts while 25
she worked at One Kearny. Banegas received four shirts from R. Ortiz. Two of the shirts said
“Preferred.” The other two said “Janitorial.” Banegas wore these shirts at One Kearny and One
Hawthorne but not at One Rincon. The shirts were mandatory. On one occasion, Banegas forgot
his black T-shirt and R. Ortiz told him to always wear the shirt as a means of identification. The
testimony of Mendoza, Useda, Franco, and Banegas is credited and it is found that R. Ortiz 30
furnished them with some shirts that said “Preferred.”
According to Nave, repairs of equipment by Preferred for its subcontractors are handled
similarly to supplies. That is, Preferred takes care of the repair and charges the subcontractor a
marked-up price over actual expense. R. Ortiz agreed that he sent the vacuum to Preferred for 35
repair since he bought the vacuum from Preferred.
According to employees, supplies and equipment for 55 Hawthorne were in the fourth
floor storage area. The invoices on these supplies showed billing to “Preferred.” Some of the
boxes in which supplies were kept also were labeled “Preferred.” Once Useda saw one of the 40
vacuum cleaners that showed a repair on the vacuum cleaner and it was billed to “Preferred”
with L. Squeri as the contact.
The janitors at One Kearny obtained their supplies from a basement storage room. These
supplies arrived in shipping boxes showing they were shipped to Preferred. At One Hawthorne, 45
supplies were kept in a janitor’s closet in the lobby. Supplies were dropped off in the closet with
invoices on the boxes addressed to Preferred. Employees did not have any knowledge about who
JD(SF)–36–16
17
ultimately paid for these supplies and repairs. R. Ortiz testified that he bought OJS supplies and
equipment both from Preferred and from other sources.
Upon execution of his first subcontract with Preferred, R. Ortiz continued his duties as
day porter at 55 Hawthorne and 631 Howard. Now, however, instead of working directly for 5
Preferred, he was working for his sole proprietorship OJS as the day porter. His day porter duties
and pay did not change. Because he had many other duties with his new company, L. Squeri
suggested and he agreed in 2013 that a separate day porter position for 631 Howard should be
created rather than R. Ortiz continuing as day porter for both buildings. The new subcontract
specified the number of hours for the day porter position.10
7. Applicable Analytical Framework
In BFI/Newby Island Recyclery, 362 NLRB No. 186, slip op. at 15 (2015), the Board
restated its joint employer test as follows:15
We return to the traditional test used by the Board (and endorsed by the Third
Circuit in Browning-Ferris [NLRB v. Browning-Ferris Industries of
Pennsylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982)]: The Board may find that
two or more entities are joint employers of a single work force if they are both 20
employers within the meaning of the common law, and if they share or
codetermine those matters governing the essential terms and conditions of
employment. In evaluating the allocation and exercise of control in the workplace,
we will consider the various ways in which joint employers may “share” control
over terms and conditions of employment or “codetermine” them, as the Board 25
and courts have done in the past. [footnote omitted]
Thus, the Board no longer requires that an alleged joint employer directly or actually
controls essential terms and conditions of employment. It is sufficient that the putative joint
employer has authority to do so.19 Terms of employment such as hiring, firing, disciplining, 30
supervising and directing employees as well as wages and hours are examined to determine
whether such authority exists. Other examples include dictating the number of workers,
controlling scheduling, seniority and overtime, assigning work, and determining the manner and
method of work. Id.; see also, Retro Environmental, Inc., 364 NLRB No. 70, slip op. at 5 (2016).
35
8. Analysis
Considering the existence, extent, and object of Preferred’s control in the context of
factors relevant to determination of an employment relationship, the preponderance of the
evidence indicates that Preferred and OJS are joint employers. Thus, employees of OJS 40
performed services under Preferred’s actual control and direction and were hired, fired, and
disciplined by Preferred. Further, the credible evidence indicates that Preferred and OJS shared
or codetermined hours, scheduling, assignment of work, and determination of the manner and

19 Thus the Board overruled prior precedent to the extent those cases held that mere authority to
control employees’ terms and conditions of employment was an inadequate indicia of joint employer
status unless the authority was exercised directly and immediately and not in a limited and routine
manner. BFI, supra, slip op. at 16.
JD(SF)–36–16
18
method of work. Finally, at times both OJS and Preferred held out OJS employees as Preferred
employees. These facts warrant a conclusion that Preferred and OJS are joint employers.
Preferred played a part in hiring, firing and discipline of the alleged discriminatees and
other employees of OJS. This factor must surely be heavily weighted in that it is a central factor 5
in an employee’s work life.20
 In July 2014, R. Ortiz told Useda that L. Squeri told him to suspend her for stealing a
backpack from the lobby at 55 Hawthorne. The investigation which ensued was
conducted solely by L. Squeri and building management. R. Ortiz did not view the video 10
of the incident. L. Squeri did view the video. Following L. Squeri’s investigation, she
concluded there had been a misunderstanding between Useda and a building clerical
about whether Useda could take the backpack. L. Squeri’s email regarding the
investigation belies her assertion that she was merely a conduit between building
management and R. Ortiz. Thus, her email stated, “I felt it was best to reinstate her. 15
However, I did tell [Useda] along with every other custodian at the building that if
another violation of removing something from the building occurs without my
permission it will result in immediate termination.” (emphasis added).
 Similarly, Preferred investigated the incident involving 55 Hawthorne janitor Mendoza in 20
September 2013. R. Ortiz did not take part in the investigation. L. Squeri reported to
building management, “I have already let go of the janitor. . . .” (emphasis added). “I will
be speaking to the rest of the crew to remind them of our rules . . . .” (emphasis added). L.
Squeri explained that the reason for the language in the email is that she is the “face” for
janitorial services and interacts with building management although they know a 25
subcontractor provides the janitorial service. This explanation is unavailing and appears
to be an afterthought. It does not alter the plain fact that L. Squeri conducted the
investigation. R. Ortiz did not. There is no evidence that R. Ortiz made a decision
regarding appropriate discipline of Mendoza. L. Squeri made the decision.
30
 Later, in October 2013, Mendoza was rehired in a different building located at 631
Howard. R. Ortiz and L. Squeri met her to explain her duties. L. Squeri told Mendoza she
was happy that Mendoza would be working for “them” again. In June 2014, Mendoza
was placed at One Kearny. R. Ortiz told Mendoza that L. Squeri wanted to know if she
would take the position at One Kearny. 35
The record also reflects that Preferred and OJS shared or codetermined matters governing
the essential terms and conditions of employment. Preferred’s dictation of the number of workers

20 See, Aldworth Co., 338 NLRB 137, 139 (2002) (relevant facts involved in joint employer
determination must be given weight commensurate with significance in employee’s work life), cited in
BFI, 362 NLRB No. 186, slip op. at 15, fn. 81.
JD(SF)–36–16
19
to be supplied is indicative of control over mandatory terms and conditions of employment.21
Dictation of the number of hours employees may work is indicative of joint employer status.22
 When awarding work to OJS to clean One Kearny, L. Squeri told him the square footage
and the number of janitors needed to fulfill the subcontract. 5
 On several occasions, R. Ortiz told the janitors that L. Squeri had authorized only six-
hour shifts but he had been paying them to work a seventh hour. R. Ortiz told the janitors
he was not going to continue paying the extra hour and they would now work six hours
per shift.
10
Preferred was involved in supervision and direction of work of OJS janitors. Direction of
the manner and method of work performance is indicative of joint employer status.23
 R. Ortiz and L. Squeri usually spoke on a daily basis. In his investigative deposition, R.
Ortiz agreed that he stated, “She – she is – to me, she’s like a supervisor so I can tell the 15
employees what they have to do. She is a supervisor just for myself.” Thus, it must be
reasonably concluded that directions given to OJS employees by R. Ortiz were directly
from Preferred’s L. Squeri.
 If one of the janitors was going to be absent, R. Ortiz let L. Squeri know. Control of
scheduling is another indicia of joint employer status.2420
In making the joint employer finding, the fact that supplies were labeled with Preferred’s
name and the fact that Preferred provided repair services for OJS equipment have not been relied
upon. The record adequately documents the sale of these supplies and services to OJS as an
arm’s-length transaction. 25
On the other hand, credible testimony and documentation from OJS employees that they
were given Preferred shirts to wear by R. Ortiz and were told to identify themselves, and in some
instances to sign in, as Preferred employees lends support to a finding of joint employer.25
30
Further, the numerous written documents underlying the subcontract relationship between
Preferred and OJS are of little value in determining whether a joint employer relationship exists.
Thus, the fact that a written document provides that the subcontractor has “sole responsibility for
and control over the manner and means of performing” the services; that Preferred “does not

21 See, D&F Industries, 339 NLRB 618, 649, fn. 77, cited in BFI, 362 NLRB No. 186 slip op. at 15,
fn. 85.
22 See, Sec. 8(d) of the Act, 29 U.S.C. §158(d), defining the duty to bargain in good faith over
mandatory terms of employment such as wages and hours. BFI, 362 NLRB No. 186, slip op. at 15, fn. 82.
23 DiMucci Const. Co. v. NLRB, 24 F.3d 949, 952 (7th Cir 1994) (supervision of employees’ day to
day activities, issuance of work assignments are among factors to be considered), cited in BFI, 362 NLRB
No. 186, slip op. at 15, fn. 86.
24 Continental Winding Co., 305 NLRB 122, 123 fn. 4 (1991), cited in BFI, 362 NLRB No. 186, slip
op. at 15, fn. 84.
25 See, e.g., Whitewood Oriental Maintenance Co., 292 NLRB 1159, 1162 (1989) (decided under
NLRB v Browning-Ferris Industries, 691 F 2d 1117 (3d Cir 1982), cited by General Counsel: fact that
janitors wore badges of alleged joint employer and that company used alleged joint employer’s stationary
for transacting business relied upon in finding joint employer status.
JD(SF)–36–16
20
exercise any disciplinary authority or control” over OJS; that OJS has “sole discretion” over
supervision and control of its employees and Preferred “has no power or authority” over hiring,
supervision, direction, discipline, selection, etc. cannot override the actual facts of the
relationship. Thus, the written documents do not overcome the weight of the credible testimony
of record that L. Squeri did exercise disciplinary authority or control, did supervise OJS 5
employees, and was involved in setting number of hours per shift and number of employees per
shift.
Finally, the general testimony of P. Dellanini, who was not actively involved with
subcontractor matters, that Preferred has never provide OJS any input regarding hiring, firing, 10
wages, hours and working conditions is belied by the more specific testimony of L. Squeri, R.
Ortiz, and the alleged discriminatees. Thus, this general testimony has been disregarded in favor
of the more specific testimony of those actually involved in such matters.
Preferred argues that BFI requires that there be either actual or reserved control over the 15
physical conduct of an alleged employee and that the Board stressed that under the new test, a
simple service under an agreement to accomplish results such as an independent contractor
agreement does not form an employment relationship. (Preferred Br. at 2) This argument is
rejected. As found above, the preponderance of the evidence reveals a different relationship than
a mere contractor/subcontractor agreement. The evidence indicates, rather, that Preferred 20
actually directed the work of OJS employees; participated in hiring, discipline, and discharge;
and set terms and conditions of employment.
Preferred contends that it did not exercise or have reserved authority to exercise physical
control over OJS employees citing to the California Labor Commission (CLC) which Preferred 25
claims constitutes a finding that it was not the common law employer of OJS employees.
Preferred argues that utilizing the common law standard embodied in BFI, a CLC
Hearing Officer concluded by decisions of January 6, 2016 that Preferred was not the employer
of the alleged discriminatees Banegas, Mendoza, and Useda. Preferred and OJS conceded these 30
decisions did not have a preclusive effect.26 The decisions defined the term “employer” as “any
person who directly or indirectly, or through any agent or other person, employs or exercises
control over wages, hours or working conditions of any person.”27 The term “employ” was
defined in the decision as “to engage, suffer, or permit to work.”28 The decisions concluded that
each alleged discriminatee had failed to establish that there was an employment relation between 35
her/himself and Preferred. As stated in the Banegas decision, page 6; Mendoza decision, page 6;
and Useda decision, pages 5-6:
The preponderance of the evidence suggests that Defendant Ortiz was Plaintiff’s
employer. Consequently, the application of the terms “employ” and “employer” 40

26 We are “not offering it for preclusive effect, but as a factor, relevant factor, issue of joint
employment, not collateral estoppel.” (Tr. 1282:13-15).
27 Decision of the Labor Commissioner, p. 5, citing State Industrial Welfare Commission Order 5-
2001.
28 Id.
JD(SF)–36–16
21
lead to the conclusion, in this matter, that the Plaintiff was not an employee of . . .
Preferred.
As Preferred correctly noted at hearing, there is no preclusive effect from these
holdings.29 Thus, having thoroughly considered the potential materiality beyond the ultimate 5
holding of the CLC Hearing Officer, it is found that the CLC decision has no probative value.
E. Alleged Unfair Labor Practices
1. Background: Events Leading to a 10
Demonstration on October 29, 2014
In late summer and early fall, janitors Useda, Mendoza, and Banegas began attending
meetings with San Francisco Living Wage Coalition (SFLWC) co-directors Karl Kramer
(Kramer) and David Frias (Frias). At all of these meetings, the employees complained to Kramer 15
and Frias about low wages, heavy working conditions, and sexually inappropriate statements
made to them by R. Ortiz.
Useda was the first of the employees to seek assistance. The reason she did so was
because of statements made to her by R. Ortiz. On one occasion in the fall of 2014,30 Useda 20
complained to R. Ortiz about there being too much work for the time allowed and she also
complained about having to move rolling heavy garbage bins (she estimated 300 pounds). Both
V. Ortiz and co-worker Franco were present during this conversation. Useda told R. Ortiz that
things were different than when Amilia [last name unknown] and Giovanni [last name unknown]
supervised. According to Useda, R. Ortiz became upset and responded: “that if I wanted to know 25
why Giovanni paid more – was because he was going to bed with a co-worker . . . And if it was
like that, then he could pay up to 20 an hour.” According to Useda, R. Ortiz also said that when
this co-worker quit her employment, she bared her breasts. Franco recalled this conversation
vaguely and remembered that Useda told R. Ortiz he should not talk about women like that.
30
Useda agreed on cross-examination that these conversations were not in her affidavit
given to the NLRB. She stated that she was tired when she gave the affidavit and although she
read it before signing it, she did not request that the conversations be added to the affidavit.
Similarly, when she re-read the affidavit shortly before testifying, she also noticed that there
were things that needed to be added. She did not call this to anyone’s attention prior to testifying.35
Even though the statement was not included in her affidavit, Useda’s testimony, corroborated by

29 When the General Counsel is not a party to prior litigation, the Board’s general rule is that the
government is not precluded from litigating the same issue. Precision Industries, 320 NLRB 661, 663
(1996), enfd. 118 F.3d 585 (8th Cir. 1997); see also Field Bridge Associates, 306 NLRB 322 (1992),
enfd. sub nom. Service Employees Local 32B-32J v. NLRB, 982 F.2d 845 (2d Cir. 1993), cert. denied 509
U.S. 904 (1993).
30 Unless otherwise referenced, all further dates are in 2014.
JD(SF)–36–16
22
Franco, is credited. Based upon her demeanor, it is found that Useda was not embellishing the
facts but was truthfully relating the conversation as she recalled it. 31
According to Useda, these comments by R. Ortiz led her to seek help from SFLWC. She
spoke to Kramer and Frias about the heavy work and R. Ortiz’ comments about women. After 5
meeting with SFLWC, Useda told her co-worker Mendoza about the meeting with SFLWC.
Mendoza was not interested in going to SFLWC with Useda but ultimately changed her mind
and joined Useda at the next meeting with SFLWC.
Mendoza testified that R. Ortiz informed Mendoza while she was on the sixth floor that 10
she needed to go back to the eighth floor to clean a sink. Mendoza protested that she had already
cleaned it but there were still people working in the building who must have used it after she
cleaned it. According to Mendoza, “He told me that his wife has given him permission to stick
his dick in any rear end but that he had to use a condom.” After these comments, Mendoza began
attending the SFLWC meetings.3215
Banegas recalled a day in September when Mendoza was sick at work. After giving
Mendoza permission to leave work, R. Ortiz reported to the building to cover for her. When
Banegas let R. Ortiz into the building, R. Ortiz asked if Mendoza had left already. Banegas
replied that she was vomiting and had left. R. Ortiz responded, “Oh. So you got her pregnant 20
already.” This comment was “the last straw” according to Banegas. He began attending meetings
at SFLWC on October 9 after learning of the meetings through coworkers Mendoza and Useda.
Mendoza corroborated Banegas’ testimony about her illness. In September, Mendoza
reported for work one day and was vomiting a lot. She called R. Ortiz to let him know she was 25
vomiting and needed to go home. He said he would call her back after checking. When R. Ortiz
called back, he told her to go home and he would cover for her. R. Ortiz agreed that he joked
with Banegas about getting Mendoza pregnant.
On the following day, when Mendoza went to the basement storage to pick up her 30
supplies, co-employee Banegas was already there. Banegas reported to Mendoza that R. Ortiz
had said, “So you got the lady pregnant, that’s why she has that nausea . . . .” R. Ortiz testified
that Mendoza complained to him about three days afterwards that Banegas told her about his
statement that Banegas had gotten her pregnant. R. Ortiz told Mendoza that it was a joke and it
35

31 See, e.g. Genwal Coal Co., Inc., 275 NLRB 528 (1985); Standard Forge & Axel Co., 170 NLRB
764, 786 fn. 8 (1968): “What a prospective witness will tell a prehearing investigator will often depend
upon how searching the questions of the investigator are.” Cf., Giovanni’s, 259 NLRB 233 (1981) (trial
testimony discredited as embellishment because investigative affidavit taken four days after incident,
when memory was fresher, did not contain those details).
32 R. Ortiz denied telling anyone that his wife told him it was okay to have sex with other women as
long as he wore a condom. He denied using the word “condom” in any conversation with any employees.
This denial is not credited.
JD(SF)–36–16
23
would not happen again. These actions caused Mendoza to change her mind about joining Useda
and in September Mendoza began attending the SFLWC meetings with Useda and Banegas.33
At the suggestion of SFLWC, the employees also sought the assistance of SEIU Local 87.
The employees agreed to meet SEIU Local 87 president Olga Miranda (Miranda) on October 21. 5
At the meeting at SEIU Local 87 offices, Useda, Mendoza, and Banegas recounted their working
conditions and statements they claimed were made to them by R. Ortiz. Miranda asked if the
employees would agree to participate in a picket. The employees agreed to do so and the date of
October 29 was set for this demonstration.
10
2. October 29 Demonstration at 55 Hawthorne
On October 29, a demonstration took place on the sidewalk in front of 55 Hawthorne
Street beginning around 10 a.m. The employees, including Useda, Mendoza, and Banegas, and
members of SFLWC as well as members of SEIU Local 87 walked in circles on the sidewalk in 15
front of the building carrying placards and chanting statements such as, “Up with the union,
down with exploitation” and “We want justice.” “When?” “Now.” During the demonstration,
leaflets were handed out with pictures of Useda34 and Mendoza,35 stating:
Who Needs a Minimum Wage Increase?20
We do.
We work for Preferred Building Services which cleans the offices of KGO
radio. We get paid the San Francisco minimum wage of $10.74 per hour. We 25
endure abusive and unsafe working conditions and sexual harassment. The
work involves heavy lifting and the risk of serious injury. A foreman
arbitrarily cut hours from eight hours per day to six hours and said that any
additional hours would need to include sexual favors. The company does not
provide paid sick days that are required by San Francisco law or pay 30
medical bills for injuries on the job as required by workers compensation.
We are calling on KGO radio to take corporate responsibility in ensuring
that their janitors receive higher wages, dignity on the job, respect, their
rights to sick pay and workers compensation, and full legal protections 35
against sexual harassment and retaliation for asserting their rights.
Vote yes on Prop J on Nov. 4 to raise the city minimum wage.

33 Ortiz denied ever talking about an alleged affair or a personal relationship between Giovanni and
an employee. He also denied ever stating that the reason Giovanni paid a higher hourly wage was because
a worker provided sexual favors to him. Ortiz denied that he ever told anyone that he would pay up to $20
per hour if an employee provided sexual favor or agreed to sleep with him. These denials are not credited.
34 Under Useda’s picture, the text stated: “Yunuen is raising two teen-agers on the city minimum
wage of $10.74 per hour.”
35 Under Mendoza’s picture, the text stated: “Balbina is raising three teen-agers and a four year old on
$10.74 per hour.”
JD(SF)–36–16
24
Join us for a picket line outside the offices of KGO radio.
Wednesday, October 29
10 a.m.
55 Hawthorne St, San Francisco5
(between Howard and Folsom, parallel to 2nd and 3rd Streets)
San Francisco Living Wage Coalition
For more information, contact 415-863-1225, sflivingwage@riseup.net
In addition to handing out these leaflets and chanting, the picketers carried placards 10
which were purple and gold. At the top of the placard, the initials “SEIU” appeared in white and
at the bottom, the initials appeared again in the left corner with “Leading the Way” underneath
the initials and to the right of the initials, in white, appeared, “Service Employees International
Union, AFL-CIO, CLC. In the center of the placard, a blue notice stated “PREFERRED
BUILDING SERVICES UNFAIR!” Above this language was the SEIU logo (upper left) and a 15
San Francisco cityscape (upper right). At the bottom, underneath the capitalized language, the
blue notice stated in small print, “This is NOT a strike. It is an informational picket line. We are
NOT calling for a boycott of this building. We are in a labor dispute with the cleaning contractor
at this building.”
20
P. Dellanini testified that he received the flyer via email from 55 Hawthorne Property
Manager Maxon, who asked P. Dellanini what he was going to do about the protest. P. Dellanini
replied that he did not plan to do anything. According to P. Dellanini, Maxon said that Preferred
should get rid of R. Ortiz and P. Dellanini told Maxon, “no.” P. Dellanini understood from the
wording on the flyer that the women who were pictured on the flyer were complaining about 25
sexual harassment. He also understood that these women said they worked for Preferred. P.
Dellanini had no knowledge regarding the statements on the flyer and did not conduct any
investigation into the allegations.
Maxon recalled this conversation with P. Dellanini or a similar conversation after a 30
subsequent demonstration. Maxon recalled recommending that R. Ortiz be removed pending
investigation into the allegations. Maxon also requested that R. Ortiz’s wife be removed from the
building pending investigation. Maxon denied that he told P. Dellanini to get rid of R. Ortiz.
According to L. Squeri, when she arrived at 55 Hawthorne, Maxon requested that she remove R.
Ortiz from the building. She did not have any further opportunity to speak with Maxon. Maxon’s 35
testimony is credited based on his forthright and thoughtful demeanor as well as the fact that L.
Squeri’s testimony tends to support Maxon’s version of the conversation between himself and P.
Dellanini.
On October 30, Kramer received a call from R. Ortiz. R. Ortiz told Kramer that he had 40
lost his job and his contracts had been cancelled. R. Ortiz asked Kramer who made the
accusations of sexual harassment and Kramer responded that the women had said R. Ortiz made
inappropriate sexual remarks. According to Kramer, R. Ortiz said, “well, that’s just the way we
Mexicans talk to each other.” R. Ortiz recalled a conversation with Kramer on October 30. R.
Ortiz testified that he asked him, “why are they talking about me” and told Kramer that the 45
picketers were his workers, not Preferred’s, and “the only thing that they were going to achieve
is that the contract might be cancelled and everyone was going to be left without work.”
JD(SF)–36–16
25
3. Protected, Concerted and Union Activity
Concerted activity includes not only activity that is engaged in with or on the authority of
other employees, but also activity where individual employees seek to initiate or to induce or to 5
prepare for group action, as well as individual employees bringing truly group complaints to the
attention of management. Fresh & Easy Neighborhood Market, 361 NLRB No. 12, slip op. at 3
(2014).36 If the employee or employees who are acting in concert are seeking to improve terms
and conditions of employment, their actions are for mutual aid and protection of all employees
within the meaning of Section 7. Id., slip op. at 3, 5-6.10
Thus, when Useda, Mendoza, Banegas and others attended meetings with SFLWC to
discuss their wages and working conditions, they were acting in concert to try to improve their
terms and conditions of employment on behalf of themselves and other employees. When these
employees agreed to seek assistance from the Union, they were engaging in union activity.15
Respondents have consistently argued that the employees were not engaged in activity
protected by the Act. The bases for this assertion are that the demonstrations were unlawful in
violation of Section 8(b)(4) and 8(b)(7) of the Act and that the banners and leaflets set forth
unlawful, malicious defamatory statements. These assertions are rejected because it is found that 20
the demonstrations were not unlawful secondary or recognitional picketing and the banners and
leaflets did not set forth any statements that were deliberately or maliciously false or made with
reckless disregard for the truth.
i) Affirmative Defense: Employees Were Engaged in an Unlawful25
Strike in Violation of Section 8(b)(4) of the Act
Respondents claim that the demonstrations had an unlawful secondary objective in
violation of Section 8(b)(4)(B) of the Act. Thus Respondents argue that an objective of the
picketing was to put pressure on Preferred and the tenants at 55 Hawthorne including KGO radio30
to force building management to terminate its contract with Preferred thus forcing Preferred to
terminate its subcontract with OJS, even though the dispute was solely with OJS. There is no
evidence that a secondary objective existed. Thus, this defense is rejected.
As relevant here, Section 8(b)(4)(B) provides that a labor organization commits an unfair 35
labor practice by threatening, coercing, or restraining any person engaged in commerce where an
object is to force or require any person to cease doing business with any other person. Thus there
are two requirements: (1) a threat, coercion, or restraint and (2) a cease doing business objective.
As the Board explained in Carpenters Local 1506 (Eliason & Knuth of Arizona), 355 40
NLRB 797, 799-800 (2010) (footnote omitted):

36 See also Meyers Industries, 268 NLRB 493, 497 (1984), remanded sub nom. Prill v. NLRB, 755
F.2d 941 (D.C. Cir. 1985), cert. denied 474 U.S. 971 (1985), supplemented Meyers Industries, 281 NLRB
882, 887 (1986), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987), supplemented, Meyers
Industries, 281 NLRB 882, 887 (1980), affd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir. 1987),
cert. denied 487 U.S. 1205 (1988).
JD(SF)–36–16
26
Congress adopted this provision and the other provisions of Section 8(b)(4) with
the objective of “shielding unoffending employers” from improper pressure
intended to induce them to stop doing business with another employer with which
a union has a dispute. NLRB v. Denver Building Trades Council, 341 U.S. 675,
692 (1951). Congress did not, however, intend to prohibit all conduct of labor 5
organizations that might influence or persuade such “unoffending employers” to
support the unions’ cause. The Supreme Court explained:
Whatever may have been said in Congress preceding the passage of the
Taft-Hartley Act concerning the evil of all forms of ‘secondary boycotts’ 10
and the desirability of outlawing them, it is clear that no such sweeping
prohibition was in fact enacted in § 8 (b)(4)(A). The section does not speak
generally of secondary boycotts. It describes and condemns specific union
conduct directed to specific objectives.
15
Carpenters Local 1976 v. NLRB (Sand Door), 357 U.S. 93, 98 (1958).
Picketing, “generally involves persons carrying picket signs and patrolling back and forth
before an entrance to a business or worksite.”37 The confrontation resultant from picketing
constitutes, necessarily, some form of confrontation between a union and customers or suppliers 20
who are trying to enter an employer’s premises. Thus such confrontational picketing “threatens
or coerces” within the prohibition of Section 8(b)(4)(B). Chicago Typographical Union (Alden
Press, Inc.), 151 NLRB 1666, 1668-1669 (1965), adopting the Second Circuit’s test in NLRB v.
Furniture Workers, 337 F.2d 936, 940 (2d Cir. 1964). The Union, SFLWC, and employees of
OJS patrolled in circles in front of the lobby of 55 Hawthorne. This patrolling or picketing 25
satisfies the first requirement of Section 8(b)(4)(B).
However, there is no evidence which satisfies the second requirement of 8(b)(4)(B), that
is, an inducement to cease doing business with another employer with which a union has a
dispute. The only evidence of record remotely relevant to this factor is the picket sign itself. As 30
relevant here, the sign stated,
We are calling on KGO radio to take corporate responsibility in ensuring
that their janitors receive higher wages, dignity on the job, respect, their
rights to sick pay and workers compensation, and full legal protections 35
against sexual harassment and retaliation for asserting their rights.

37 Eliason, supra, at 802, citing Mine Workers District 2 (Jeddo Coal Co.), 334 NLRB 677, 686
(2001); Service Employees Local 87 (Trinity Building Maintenance), 312 NLRB 715, 743 (1993), enfd.
103 F.3d 139 (9th Cir. 1996); see also NLRB v. Retail Store Union Local 1001, 447 U.S. 607, 618-619
(1980) (Safeco) (Justice Stevens, concurring) (picketing “involves patrol of a particular locality”)
(quoting Bakery Drivers v. Wohl, 315 U.S. 769, 776–777 (1942) (Justice Douglas, concurring));
Overstreet v. Carpenters Local 1506, 409 F.3d 1199, 1213 (9th Cir. 2005) (“Classically, picketers walk in
a line and, in so doing, create a symbolic barrier.”)
JD(SF)–36–16
27
Further, the sign stated, albeit in smaller lettering, “This is NOT a strike. It is an
informational picket line. We are NOT calling for a boycott of this building. We are in a labor
dispute with the cleaning contractor at this building.”
Activity intended only to educate consumers or neutral employers or employees, and 5
perhaps even cause them to take action is lawful unless the action taken is cessation of work by
neutral employees. Carpenters Southwest Regional Council Locals 184 and 1498 (New Star),
356 NLRB 613, 615 (2011):
Section 8(b)(4)(i)(B), in particular, is violated by picketing or other activity that 10
induces or encourages the employees of a secondary employer to stop work,
where an object is to compel that employer to cease doing business with the
struck or primary employer. Unless both of those elements are demonstrated, no
violation of the Act may be found. Activity intended only to educate consumers,
secondary employers, or secondary employees, and even prompt them to action—15
so long as the action is not a cessation of work by the secondary employees—is
lawful.
In evaluating whether a secondary objective is present, it must be noted that 55
Hawthorne is a multi-story office building with multiple tenants. These tenants are neutral 20
employers regarding the Union’s dispute with Respondents. These tenants were engaged in their
own primary activities and did not perform any work for Respondents. When pickets are present
at a common situs, that is, a location where both primary and neutral employers are present, the
picketing is presumptively lawful if (1) the picketing is strictly limited to times when the situs of
the dispute is located on the neutral employer’s premises; (2) at the time of the picketing, the 25
primary employer is engaged in its normal business at the situs; (3) the picketing is limited to
places reasonably close to the location of the situs; and (4) the picketing discloses clearly that the
dispute is with the primary employer. Sailors’ Union of the Pacific (Moore Dry Dock Co.), 92
NLRB 547, 549-551 (1950).
30
These standards were clearly met. Respondents’ daytime employees were performing
their normal duties at the time of the picketing. R. Ortiz was, in fact, in the lobby at the time. The
picketing was just outside the lobby, thus reasonably close to the situs of the dispute. Finally, the
picket signs clearly disclosed Preferred as the primary employer. The fact that OJS was not
mentioned on the signs is due to the fully documented lack of information that employees and 35
the Union had regarding what entity was the actual employer of the employees. Moreover,
because Preferred and OJS have been found joint employers, there can be no argument that
identifying Preferred as the primary employer fails to meet the fourth Moore Dry Dock
requirement.
40
Thus, given the access points to the property and the lack of any precise location which
could have assured that only primary employees would be present, the picketing on public
sidewalks outside the lobby was not conducted in a manner allowing an inference of a secondary
JD(SF)–36–16
28
objective.38 Rather, the opposite is true. It is found that all of the Moore Dry Dock factors were
satisfied. Thus, compliance with the Moore Dry Dock standards creates a presumption that the
picketing was lawful
Further, there is no independent evidence of an unlawful secondary objective to rebut that 5
presumption. Although the picket signs sought KGO’s assistance in aiding janitors to receive
better wages, sick pay, workers compensation, and protection against sexual harassment, there
was no request that KGO cease doing business with Respondents. The appeal to KGO did not
seek a specific affirmative action as a quid pro quo for the removal of pickets. Further, Harvest
Properties building manager Maxon, whose testimony is credited, sought an investigation into 10
the allegations on the picket signs of his own volition. There is no evidence that he was asked to
do this by the Union or that he was asked to cease doing business with Respondents by the
Union.39 Thus, Respondents’ affirmative defense that the picketing was unlawful secondary
activity is rejected.
15
ii) Affirmative Defense: Employees Were Engaged in Unprotected
Strike in Violation of Section 8(b)(7)(C) of the Act
Respondents argue that the actions of Useda, Banegas, Mendoza, and others at the
October 29 and November 19 demonstrations and at similar later demonstrations were 20
unprotected. First, relying on National Packing Co. v. NLRB, 352 F.2d 482, 485 (10th Cir. 1965),
Respondents claim that the employees’ should not be allowed to use the Act to compel
reinstatement after discharge which followed picketing in violation of Section 8(b)(7)(C).
Section 8(b)(7)(C) provides, as relevant here, that it is an unfair labor practice for a labor 25
organization to picket any employer where an object is to force or require an employer to
recognize or bargain with a labor organization as the representative of its employees unless the
labor organization is already certified, where no representation petition is filed within a
reasonable period of time not to exceed 30 days from the start of the picketing. Two provisos to
Section 8(b)(7)(C) exist. The first proviso sets out an expedited election process if a 30
representation petition is filed. The second proviso exempts informational picketing from a
finding of violation if there is no intent to induce any individuals not to pick up, deliver or
transport goods or not to perform any services. Thus, in general, in order to prove that a violation
of Section 8(b)(7)(C) occurred, the evidence must indicate that picketing occurred, that it had a
recognitional or organizational object, and that no petition for representation was filed within a 35
reasonable time.

38 See, e.g., IBEW Local 640 (Timber Buildings, Inc.), 176 NLRB 150, 151-152 (1969) (where union
furnished with untrue information regarding presence of primary, Moore Dry Dock inference not affected
by failure to picket at time primary actually present); Electrical Workers IBEW, Local 441 (Suburban
Development Co.), 158 NLRB 549, 552-553 (1966) (accommodation of competing interests is maintained
where Moore Dry Dock standards are applied to minimize impact on neutral employees without
substantial impairment of effectiveness of picketing in reaching primary).
39 Either before or around the time of the picketing, Harvest Properties began searching for a
unionized cleaning contractor. There is no evidence to connect this search to the picketing. Eventually,
Preferred notified Harvest Properties that it was cancelling its contract to clean 55 Hawthorne.
JD(SF)–36–16
29
On October 29 and November 19, employees marched in circles in front of the building
where Respondents provided janitorial services. While marching, the employees carried
placards, distributed leaflets, and shouted slogans. There is no dispute and it has been previously
found that this activity constituted picketing and satisfies the “restraint or coercion” requirement.
Further, there is no dispute that a petition for recognition has not been filed.40 The object of the 5
picketing may be determined, of course, by actual admissions or direct evidence of an unlawful
objective.41 In the absence of direct evidence, the nature of the objective may be evident from the
overall conduct.42
Respondents argue that the recognitional objective is satisfied where a union attempts to 10
dictate a change in working conditions of employees it does not represent. Respondent Preferred
cites Congress of Independent Unions v. NLRB, 620 F.2d 172, 176 (8th Cir. 1980), and NLRB v.
International Brotherhood of Electrical Workers, Local 265, 604 F.2d 1091, 1097 (8th Cir.
1979). These cases are inapposite because both took place in the context of organizational
activity. 15
In CIU, the court of appeals reversed the Board and found that the picketing arose in a
two-year atmosphere of recognitional activity, followed by a disclaimer of recognitional interest
and immediate picketing with signs limited to substandard wage claims. However, the
circumstantial evidence of past recognitional attempts convinced the court that a recognitional 20
object was present. Such facts are not present here. Here the language regarding wages must be
viewed literally because no other surrounding circumstances provide a recognitional object.
Similarly, in IBEW, in a letter to the employer the union demanded area standards wages
and offered to provide area standards information to the employer in order to reach agreement. 25
The court affirmed the Board’s finding that an object was recognition based on the letter and the
union’s past attempts to organize the employees. Thus the court held that the union’s efforts
extended well beyond a request to merely comply with area standards. That is not the case here.
Here there is no evidence of a prohibited object, either by action or statement. The picket 30
signs and leaflets were directed to the public rather than to employees.43 There were no requests

40 For purposes of this analysis, it is assumed that sporadic picketing over a period exceeding 30 days
satisfies the 30-day requirement that a petition for recognition be filed. Here, the picketing occurred on
October 29, November 19, and December 18.
41 For instance, in Hotel & Restaurant Employees Union, Local No. 681(Crown Cafeteria), 135
NLRB 1183 (1967), a sign that stated that the employer does not employ members of a labor organization
or does not have a contract with the picketing labor organization would imply an objective for
recognition.
42 Mine Workers Local 5926 (Sunrise Mining), 291 NLRB 644 (1988) (fact that some members of
union took part in picketing insufficient to show picketing was union endorsed organizational effort
where picketing began as community protest and continued as such without evidence of a recognitional
object); Teamsters Local 618 (S & R Auto Parts), 193 NLRB 714, 717 (1971) (disclaimers cannot prevail
over intent and effect of actions).
43 See, e.g., Retail Clerks Local 635 (Mays, Inc.), 145 NLRB 1091, 1093 (1964) (Where signs stated,
“Mays Employees Your Right to Join Retail Clerks is Protected by Federal Law. . . . Mays Employees
There is Nothing to Fear But Fear Itself. Join. Join. Join Retail Clerks,” there was no doubt that a
recognitional objective was present.)
JD(SF)–36–16
30
that employees join the Union made in connection with the picketing.44 There is no evidence of a
contemporaneous demand for recognition45 and no evidence that a contract was tendered at the
time of picketing,46 or that cessation of picketing was conditioned on signing a contract.47 The
evidence indicates that the purpose of the picketing was to inform the public and protest working
conditions of the employees. The second proviso to Section 8(b)(7)(C) specifically excludes such 5
informational picketing from the coverage of the section. Thus, to the extent Respondents argue
that employees lost the protection of the Act by engaging in unlawful recognitional picketing, the
argument is rejected because the evidence of record fails to show that the picketing was
unlawful.
10
iii) Affirmative Defense: Employee Activity was Unprotected
Because Picket Signs and Leaflets Contained
Unlawful, Malicious Defamation
Additionally, Respondents aver that because the picket signs and leaflet statements 15
regarding R. Ortiz contained unlawful, malicious defamation, the alleged discriminatees’
conduct is unprotected. In this connection, Respondents claim that the statements regarding
abusive, unsafe working conditions and sexual harassment were knowingly false or made with
reckless disregard of the truth. This contention is also rejected.
20
In general, employees may engage in communications with third parties in order to obtain
the third parties’ assistance where the communication is related to a legitimate, ongoing labor
dispute between the employees and their employer and where the communication does not
constitute a disparagement or vilification of the employer's product or its reputation. Allied
Aviation Serv. Co. of N.J., 248 NLRB 229, 230 (1980), enfd 636 F.2d 1210 (3d Cir. 1980); see 25
also, Sierra Publishing v. NLRB, 889 F.2d 210 (9th Cir. 1989), enfg 291 NLRB 540 (1988).
Thus, employee appeals to third parties in an ongoing labor dispute are protected if they are “not
so disloyal, reckless, or maliciously untrue [as] to lose the Act’s protections.” Emarco, Inc., 284
NLRB 832, 833 (1987); see, generally, NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard Broadcasting Co.), 346 U.S. 464, 477 (1953) (employee disparagement of an 30

44 See, e.g., Retail Clerks Local 345 (Gem of Syracuse), 145 NLRB 1168, 1172 (1964) (union
statements that picketing would cease if employer cooperated in organizational efforts indicated
recognitional object); Philadelphia Window Cleaners (Atlantic Maintenance Co.), 136 NLRB 1104,
1105-1106 (1962) (recognitional object shown where picket signs told public to read the circulars handed
out at the picketing; circulars requested that employees join the union).
45 In Electrical Workers (IBEW) Local 265 (R P & M Electric), 236 NLRB 1333, 1334-1335 (1978),
enfd 604 F.2d 1091 (8th Cir. 1979), the union specifically demanded recognition. See also, Gem of
Syracuse, supra.
46 In Retail Clerks Local 899 (Giant Food), 166 NLRB 818, 823 (1967), the union demanded not only
area standards but also equivalent benefits to those negotiated in collective-bargaining agreement; see
also Retail Clerks Local 212 (Maxam Buffalo), 140 NLRB 1258, 1265 (1963) (numerous discussions
about contract details in attempt to obtain agreement).
47 Maxam Buffalo, supra (references to warfare and repeated statements about need for haste in
context of presentation of contract details indicative of picketing ceasing upon recognition); see also
Grain Millers Local 16 (Bartlett & Co., Grain), 141 NLRB 974, 979-980 (1963) (union stated pickets
would be removed when there was a certified representative for the employees or if the employer hired
union members).
JD(SF)–36–16
31
employer’s product unrelated to a labor dispute is not protected while employee publication of a
labor dispute is protected).
The picket signs and leaflets at issue here publicized a labor dispute and were directly
related to protected, concerted activity in progress.48 The leaflets stated that employees endured 5
“abusive and unsafe working conditions and sexual harassment.” The leaflets also stated that
hours were cut and “a foreman” told employees “additional hours would need to include sexual
favors.” These leaflet statements made particular reference to treatment of employees, wages,
and conditions of employment. The leaflets appealed to the public for support and sympathy.
Thus, the leaflets clearly referred to an ongoing labor dispute and were inextricably intertwined 10
with the employees’ concerted activities.
In the credibility section above, it is found that the witnesses who made the statements in
support of the leaflet and picket sign language were highly credible witnesses. There is nothing
to suggest otherwise. Thus, it is not found that any of the accusations on the leaflets, which were 15
repeated on the witness stand by highly credible witnesses, albeit with great difficulty and unease
due to the sensitive nature of the subject matter, were “deliberately or maliciously false” or made
with “reckless disregard for the truth.” Thus, the communications on leaflets and picket signs
were protected under Jefferson Standard and Respondents’ argument that the employees were
engaged in unprotected activity on this basis is rejected.20
4. Alleged Violations Which Have Been Briefed by the General Counsel
But are Not Set forth in the Complaint
Some of the matters briefed by the General Counsel relate to allegations not contained in 25
the complaint as amended. Generally, the General Counsel requests that these allegations be
included in this litigation pursuant to a motion to conform the pleading to the proof made at the
close of the hearing. This motion was granted only as to minor matters. 49 In ruling on a motion to
amend, the judge’s discretion is guided by factors such as whether there was surprise or lack of
notice, whether there is a valid excuse for the delay in moving to amend, and whether the matter 30
was fully litigated. Rogan Brothers Sanitation, Inc., 362 NLRB No. 61, slip op. at 3, n. 8 (2015).
A motion made at the beginning of hearing arising from and closely related to existing
complaint allegations may appropriately be granted. Folsom Ready Mix, 338 NLRB 1172 fn. 1
(2003). However, a motion to amend the complaint made at the end of hearing may add 35
additional substantive allegations of unfair labor practices to the complaint only if the parties

48 Sec. 2(9) of the Act defines “labor dispute” to include “any controversy concerning terms, tenure or
conditions of employment.” The picket signs and leaflets referenced working conditions and wages.
49 A motion made at the end of the hearing to conform the pleadings to the proof may be granted as to
minor matters such as dates and names See, e.g., Coplay Cement Co., 292 NLRB 309, 315 (1989) (minor
matters such as errors in dates); Centre Engineering, Inc., 246 NLRB 632,633 fn. 3 (1979) (names of
alleged agents reversed).
JD(SF)–36–16
32
have fully and fairly litigated such matters.50 However, when the newly alleged matters have not
been fully and fairly litigated, allowing amendment after the record has closed denies due
process of law. See, e.g., The Dalton School, 364 NLRB No. 18, slip op. at 2 (2016):
We find merit, however, in the Respondent's exception to the judge's finding that 5
the Respondent unlawfully interrogated Brune on March 11, 2014. This
allegation, which was not contained in either the charge or the Complaint, was not
fully litigated at the hearing, as required by Pergament United Sales, 296 NLRB
333, 334 (1989), enfd 920 F.2d 130 (2d Cir. 1990). The Respondent was not put
on notice that the facts pertaining to the March 11 meeting would be used to 10
prove a separate interrogation violation, and therefore the Respondent did not
have the opportunity to mount a defense. Under these circumstances, we find that
the interrogation allegation was not fully and fairly litigated. See Dilling
Mechanical Contractors, Inc., 348 NLRB 98, 105 (2006).
15
Specific findings will be made regarding each of the unalleged matters in the general
discussion that follows.
5. On or about October 29, R. Ortiz, by phone conversation, told employees
who were picketing not to return to work (Complaint paragraph 8(a)(i))20
Unpled Allegation regarding Interrogation during same Conversation
a) Facts
After the picketing, Mendoza testified that she received a call from R. Ortiz who stated, 25
“lady, I’m here with Lauren [Squeri] and with Robert [Squeri]. And we wanted to know what’s
going to happen. And asking why was I present there. And because I have there present I was not
going to be working anymore.” R. Ortiz denied telling employees who were picketing not to
return to work. As mentioned in prior sections, Mendoza was a highly credible witness. Her
testimony in regard to this conversation was open and consistent. Thus, her testimony that R. 30
Ortiz asked her what was going to happen and why she was present at the demonstration and told
her she would not be working anymore is credited over the denial of R. Ortiz.
b) Analysis
35
i) Instruction to Not Return to Work
Section 8(a)(1) of the Act provides that it shall be an unfair labor practice for an
employer to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by

50 See, e.g., Desert Aggregates, 340 NLRB 289, 292–293 (2003), modified on other grounds, 340
NLRB 1389 (2003), (posthearing motion to amend the complaint to allege an additional 8(a)(1) statement
by a manager denied because respondent did not have fair notice that the manager’s statement would be
alleged as a violation because the manager’s testimony about the statement emerged incidentally during
the General Counsel’s cross-examination, and, consequently, was not fully litigated); Sheet Metal
Workers Local 91 (Schebler Co.), 294 NLRB 766, 774–775 (1989), enfd. in part and remanded in part
905 F.2d 417 (D.C. Cir. 1990) (posthearing request to amend the complaint to allege an additional 8(b)(3)
theory properly denied).
JD(SF)–36–16
33
Section 7 of the Act. As relevant here, those rights include the right to self-organization, to form,
join, or assist labor organizations, and to engage in other concerted activities for mutual aid or
protection.
Statements made by an employer to employees may convey general and specific views 5
about unions or unionism or other protected activity as long as the communication does not
contain a “threat of reprisal or force or promise of benefit.” NLRB v. Gissel Packing Co., 395
U.S. 575, 618 (1968). Statements are viewed objectively and in context from the standpoint of
employees over whom the employer has a measure of economic power. See, e.g., Mesker Door,
Inc., 357 NLRB 591, 595 (2011). When an employer tells employees that they will jeopardize 10
their jobs, wages, or other working conditions by supporting a union or engaging in concerted
activities, such communication tends to restrain and coerce employees if they continue to support
a union or engage in other concerted activities in violation of Section 8(a)(1). Noah’s Bay Area
Bagels, LLC, 331 NLRB 188 (2000).
15
The clear import of the credited testimony is that because Mendoza took part in the
demonstration, she was not going to be working anymore. These words constitute a threat of
discharge for protected activity.51 Although the complaint alleges that R. Ortiz stated that she did
not need to return to work, the testimony that he said she was not going to be working anymore
is substantially similar to the allegation to be encompassed within the pleading. Thus, it is 20
concluded that by telling an employee who was picketing that she was not going to be working
anymore, Respondents violated Section 8(a)(1) of the Act.
ii) Unpled Allegation of Interrogation
25
The complaint does not allege that the questions asked during this conversation (What’s
going to happen? Why were you there [at the demonstration]?) constitute unlawful
interrogation.52 As only minor matters may be included in the motion to conform the pleading to
the proof, adding an allegation of interrogation to the complaint allegation of a threat does not
qualify as a minor matter appropriately handled by a motion to conform the pleadings to the 30
proof.
Nevertheless, if the matter is closely related to the allegations of the complaint and fully and
fairly litigated, it may be litigated. Here, the matter was not fully litigated even through Mendoza
35

51 See, e.g., Publix Super Markets, Inc., 347 NLRB 1434, 1435-1436 (2006) (unretracted threat to
discipline or discharge employees for attempting to assist a coworker in dealing with management
regarding work hours reasonably tended to deter employees from engaging in Sec. 7 activities).
52 Par. 8(b)(ii) alleges interrogation of Mendoza and Banegas on October 30 at One Kearny. This
allegation is clearly about a different incident than the one discussed here. When Respondents asked R.
Ortiz during their case-in-chief, “On October 30, did you ask employees why they were engaging in union
activity and ask them to stop or they would be terminated?” they were clearly referencing the allegation
of October 30. Accordingly, there can be no finding that Respondents attempted to litigate this unpled
allegation of October 29.
JD(SF)–36–16
34
was asked one question on cross-examination about the conversation.53 As the Board stated in
Mine Workers District 29, supra, 308 NLRB at 1157, quoting NLRB v. Quality C.A.T.V., Inc.,
824 F.2d 542, 547 (7th Cir. 1987),
[T]he simple presentation of evidence important to an alternative claim does not 5
satisfy the requirement that any claim at variance from the complaint be ‘‘fully
and fairly litigated’’ in order for the Board to decide the issue without
transgressing [the respondent’s] due process rights.
Thus, it is concluded that because the factual and legal matter regarding the questions10
asked during this conversation were not fully and fairly litigated, the alleged interrogation is not
before me. See, The Dalton School, supra, 364 NLRB No. 18, slip op. at 2; Piggly Wiggly
Midwest, LLC, 357 NLRB 2344, 2345 (2012).
6. On October 29, R. Ortiz engaged in surveillance of employees by 15
taking photos of employees engaged in union activities (Complaint paragraph 8(a)(ii))
a) Facts
The complaint alleges that R. Ortiz engaged in surveillance of the October 29 picketing at 20
55 Hawthorne by taking pictures of the employees. At the time of this demonstration, R. Ortiz
worked in the lobby and other parts of 55 Hawthorne as the day porter. While picketing,
Mendoza and Useda observed R. Ortiz in the lobby. Banegas also observed R. Ortiz in the lobby
of the building holding a cell phone and extending his arm outward and moving it around as if
taking pictures or video. R. Ortiz denied that he ever took any photos or videos of employees. R. 25
Ortiz agreed that he saw Mendoza, Useda, and Banegas picketing on October 29.
b) Analysis
It is not alleged in the complaint that R. Ortiz’ observation of employee picketing from 30
inside the lobby violates the Act. Rather, it is his alleged photography or videography of
employee activity that is at issue, as framed by the complaint. However, as briefed by the
General Counsel (GC Br. 81-82), it is the open, prolonged, conspicuous presence of R. Ortiz in
the lobby watching the demonstration, laughing and talking with people and appearing to take
photos which violates the Act. 35
As to the complaint allegation, absent proper justification, photographing or videotaping
employees as they engage in protected concerted activity violates Section 8(a)(1). Saigon
Gourmet, 353 NLRRB 1063, 1066 (2009). The action of holding a cell phone out and moving it
around appears to indicate that a photo or video is being taken. 40
Both Mendoza and Useda testified only that they saw R. Ortiz in the lobby on October
29. They did not testify that they saw him holding his cell phone as if videotaping or

53 On cross-examination, Mendoza was asked whether during this post-demonstration conversation,
R. Ortiz asked why he was being accused of sexual harassment. Respondents did not ask any further
questions of Mendoza on the substance of the conversation either regarding the alleged threat or the
unalleged interrogation.
JD(SF)–36–16
35
photographing the picketing activity. Banegas alone testified about this observation. Based on
the failure of Mendoza and Useda to confirm his observation, and Banegas admitted difficulty
with dates, this specific portion of Banegas’ testimony is discredited. R. Ortiz denial is credited. I
find that on October 29 R. Ortiz’ did not give the impression of taking photos or videos of
picketing employees.5
As to the argument that R. Ortiz’ open, prolonged, conspicuous presence constituted
unlawful surveillance, this allegation is rejected as unsupported by the record. As day porter, R.
Ortiz took care of cleaning needs during the day time such as collecting trash, polishing rails,
dusting, and cleaning water fountains. This work sometimes required that he be in the lobby. 10
Although he had been cautioned about taking breaks in the security area of the lobby, he was
required as part of his duties to be present in the lobby area. According to Mendoza, R. Ortiz was
on his phone when she initially saw him in the lobby. Then he left the area. Useda observed R.
Ortiz in the lobby. She did not testify that she observed him for any specific length of time.
Banegas observed R. Ortiz in the lobby for about five minutes and then lost sight of him. Kramer 15
testified that R. Ortiz was pointed out to him on October 29. Kramer observed this person sitting
in the lobby with the security guard. No specific time was given for the length of this
observation. Mere observation of open activity from a workplace site does not rise to the level of
surveillance. F.W. Woolworth, 310 NLRB 1197 (1993) (employer’s mere observation of
employees’ open, public union activity on its premises does not violate the Act). Thus, paragraph 20
8(a)(ii) of the complaint is dismissed.
7. Further Statements of October 29 which the General Counsel Contends
Violated Section 8(a)(1) of the Act even though they are not alleged in the Complaint
25
The General Counsel argues on brief (pp. 70-72) that further unalleged violations of
Section 8(a)(1) occurred on October 29. First, the General Counsel refers to a pre-demonstration
phone call between R. Ortiz and Mendoza in which Mendoza testified that R. Ortiz told her not
to go to the demonstration. Second, the General Counsel refers to a post-demonstration
conversation between R. Ortiz and Useda in which R. Ortiz asked why the employees 30
participated in the demonstration. R. Ortiz further stated, according to Useda, that the contract
would be over anyway. Useda asked if R. Ortiz would relocate her and R. Ortiz responded that
Useda should ask the Union for help warning her that she should be careful and asking if she
knew what she was getting into. Further, the General Counsel refers to another statement during
a post-demonstration meeting on October 29 in which R. Ortiz told Banegas and Mendoza that 35
he would fire the employees if they continued demonstrations. Banegas testified regarding this
statement. Mendoza did not.
None of these October 29 statements are alleged in the complaint as violations of the Act.
Under the circumstances of this case, the General Counsel’s request that the complaint be 40
amended to add these three additional violations is denied. The General Counsel has provided no
reason for a post-hearing amendment of the complaint. No notice was given to the Respondents
that these further statements would be argued on brief as violations of the Act. None of them
arise from the same conversation as an allegation set forth in the complaint. Rather, these are
JD(SF)–36–16
36
discrete occurrences in separate settings. Respondents did not question their witnesses or the
General Counsel’s witnesses on cross-examination about whether these statements were made. 54
Thus it is not possible to find that these allegations were fully and fairly litigated.
Allowing amendment at this late stage of the proceedings denies Respondents due process of 5
law. See, e.g., The Dalton School, supra, 364 NLRB No. 18, fn. 2 (2016) (unpled allegation
which was not fully and fairly litigated may not be heard as Respondents had no notice and no
opportunity to mount defense); see also, Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345
(no amendment allowed where respondent was not on notice that it faced liability for this
specific conduct and it had no reason at the hearing to attempt to dispute the unpled conduct).10
8. About October 30, R. Ortiz asked employees at One Kearny for
Employment Verification (Complaint paragraph 8(b)(i))
a) Facts15
At a meeting held around October 31, Mendoza and Banegas were asked by R. Ortiz to
furnish their employment re-verification. According to Banegas, R. Ortiz routinely asked him to
complete his application including verification and he had not done so. Mendoza testified that in
early November she received a follow-up call from R. Ortiz. He told her that her green card, her 20
work permit, was expired. According to Mendoza, she told him he would have to wait until her
husband gave her money to renew it. R. Ortiz said he was not going to pay Mendoza unless she
brought it in. R. Ortiz continued to pay Mendoza’s wages after this call.55 Mendoza’s testimony
is credited for the reasons stated above.
25
b) Analysis
The Immigration Reform and Control Act of 1986 (IRCA) requires that an employer, by
reviewing documentation, verify the identity and employment eligibility status of any person
hired by that employer. IRCA’s I-9 form sets out the types of documents that an employer may 30
accept for verification purposes. An employer is required to record on the I-9 form the issuing
authority and expiration date for the documents produced. IRCA provides for civil and criminal
penalties if an employer knowingly hires an undocumented worker.

54 Specifically, as to the pre-demonstration phone call between Mendoza and R. Ortiz, Mendoza was
not asked about it on cross-examination by Respondents and R. Ortiz was not asked about it when he
testified in Respondents’ case-in-chief. Regarding the conversation between Useda and R. Ortiz after the
demonstration, Useda was not cross-examined about the conversation and R. Ortiz was not asked about it.
As to the post-demonstration statements attributed by Banegas to R. Ortiz when addressing Banegas and
Mendoza, Banegas was not asked about this on cross-examination and R. Ortiz was not asked about this
conversation at all.
55 Banegas had been given an application to complete when he was hired but he never completed it.
According to Banegas, R. Ortiz did not ask him to complete it again until the time of the demonstration
The record is less than clear regarding whether completion of an application requires submission of I-9
documents. Respondents’ attorneys stated that I-9 documents were part of the application process. Thus,
it is not clear that requesting that Banegas complete an application is synonymous with requesting I-9
documentation. In any event, the General Counsel does not suggest on brief that requesting Banegas to
submit an application is relevant to this particular allegation.
JD(SF)–36–16
37
An employer’s statements regarding immigration status must be carefully scrutinized as
they are likely to instill fear among employees. See Labriola Baking, 361 NLRB No. 41, slip op.
at 2-3 (2014); Nortech Waste, 335 NLRB 554, 554-555 (2001) (rejecting employer’s argument
that its review of immigration status was normal compliance with IRCA and finding that it was 5
used as a “smokescreen” in retaliation for union activity).56 As the General Counsel argues, when
an employer requests employment documentation in retaliation for union or protected activity,
the employer discourages union or concerted activity in violation of Section 8(a)(1).57
Here, it must be determined whether the documentation was requested as a normal 10
record-keeping matter or was requested in retaliation for participation in the demonstration. The
timing of the request, just two days after the October 29 demonstration is suspicious. However,
there is no other evidence than timing to suggest that the request was retaliatory. In fact, there is
no dispute that Mendoza’s documents were expired and that Banegas had not furnished his. The
General Counsel asserts that Respondent OJS did not establish a legitimate business reason for 15
the request. However, this assertion misses the point. It was the General Counsel’s burden to
establish that the request was made for a retaliatory reason in the first place. Under these
circumstances, no violation is found and complaint paragraph 8(b)(i) is dismissed.
9. About October 31, R. Ortiz asked employees at One Kearny why they were engaging in 20
union activity and asked them to stop or they would be terminated (Complaint paragraph
8(b)(ii)).58 About October 31, V. Ortiz threatened employees at One Kearny with lodging
a complaint against them and other unspecified reprisals (Complaint paragraph 8(b)(iii)
a) Facts25
Banegas and Mendoza were met by R. and V. Ortiz on October 30 or 3159 while they
were working at One Kearny. V. Ortiz explained that her purpose for the meeting was: “I wanted
them to clarify, to explain to me what was on the paper” She wanted proof of the allegations. R.
Ortiz asked Banegas why he brought a claim against OJS, referring to the accusations set forth in 30
the demonstration leaflets, and asked how much money he wanted. During a lengthy exchange of

56 See also, Rivera v. NIBCO, Inc., 364 F. 3d1057, 1065 (9th Cir. 2004) (workers may be intimidated
by the perception of focus on their immigration status in that, “their immigration status would be
changed, or that their status would reveal the immigration problems of their family or friends; similarly,
new legal residents or citizens may feel intimidated by the prospect of having their immigration history
examined in a public proceeding.”) cert. denied 544 U.S. 905 (2005).
57 See North Hills Office Services, 344 NLRB 1083 (2005); Victor’s Café 52, Inc., 321 NLRB 504,
514-514 (1996); Del Rey Tortilleria, Inc., 272 NLRB 1106 (1984), cited by General Counsel.
58 The General Counsel states in her brief that the complaint does not allege that during the meeting
of October 31, R. Ortiz violated the Act by asking Banegas why he was bringing a claim against OJS and
how much he wanted. (GC Brief at 75, fn. 71: “Not currently alleged.”). However, par. 8(b)(ii) clearly
alleges a violation of Sec. 8(a)(1) on October 30 by asking employees why they were engaging in union
activity.
59 Some parties identified the events covered by complaint allegations 8(b)(ii) and 8(b)(iii) as
occurring on October 31 rather than on October 30, as alleged. Others identified the events as occurring
on October 30. It is obvious that all witnesses were discussing the same meeting regardless of which date
they used.
JD(SF)–36–16
38
grievances on both sides, Benagas testified that V. Ortiz told him that she was going to sue him
because he was harassing Mendoza.60 V. Ortiz denied this statement. According to Banegas, V.
Ortiz stated that the employees did not know who they were dealing with. V. Ortiz further stated
that Preferred had lawyers and millions and employees should be grateful for their employment.
V. Ortiz denied making any threats. According to Banegas, R. Ortiz said that Preferred was 5
demanding that the employees publicly apologize or they would lose their jobs.
Mendoza testified that around October 31, 2014, she spoke with R. Ortiz and his wife V.
Ortiz. Banegas was also present. During the conversation, V. Ortiz became upset and yelled that
the employees “didn’t know with whom they were dealing – that Preferred had lawyers and 10
millions and that we should be thankful because they were giving us work.”
As mentioned before, in general, Mendoza’s testimony was highly credible. Although
Banegas admitted that he had difficulty remembering exact dates, his testimony about this
meeting was equally credible, with consistency and exactness of recollection. Mendoza did not 15
recall the meeting with as great specificity as did Banegas. However, it appears that much of the
conversation was directed at Banegas. Accordingly, his recollection would be quite accurate in
this regard. To the extent V. Ortiz generally denied making threats, her testimony is discredited.
In general, V. Ortiz’ testimony was lacking in detail and conclusory. Similarly, R. Ortiz’
recollection lacked specificity. Moreover, the record as a whole reflects that the period of time 20
surrounding the demonstrations was a highly emotional period of time for R. and V. Ortiz.
Accordingly, it is more probable than not that these statements were made as Mendoza and
Banegas recalled and they are credited for that reason as well as their overall credible demeanors.
b) Analysis25
i) Interrogation, Threat of Discharge, Threat of Filing Lawsuit,
Threat of Unspecified Reprisal
Questioning an employee about protected activity is not a per se violation of the Act but 30
is evaluated considering the background, the nature of the information sought, the identity of the
questioner, the place and method of the interrogation, and whether the employee is an open and
active union supporter.61 Shortly after the October 29 demonstration, R. Ortiz, in the presence of
his wife and co-worker Mendoza, asked Banegas why he brought a claim against Respondents.
Banegas’ activity in demonstrating may be considered open and active. The nature of the 35
information sought (more or less, why are you doing this?) is somewhat beside the point as the
leaflets and signs fully set forth this information. However, as will be seen below, the question
was accompanied by other statements which violated the Act. Thus, under these circumstances,
questioning employees about why they brought a claim would reasonably tend to restrain and
coerce the Section 7 right to act together in concert to obtain better wages and terms and 40
conditions of employment.
The statement by R. Ortiz that Preferred said that employees must publicly apologize for
the statements in the leaflets distributed during the demonstration or they would lose their jobs

60 R. Ortiz did not remember his wife making this statement.
61 Norton Audubon Hospital, supra, 338 NLRB at 320-321.
JD(SF)–36–16
39
tends to restrain protected, concerted activity and Union activity and clearly constitutes a threat
of discharge for protected activity.62 The statement by R. Ortiz to be careful about going to the
Union and to SFLWC constituted a threat of unspecified reprisal for engaging in union or
protected, concerted activity.63
5
As to the threat of filing a lawsuit against employees and the threat of unspecified
reprisals by V. Ortiz, the General Counsel avers that whether or not V. Ortiz was a supervisor or
agent of OJS, under all the circumstances, employees would reasonably believe that V. Ortiz was
reflecting company policy and speaking and acting with apparent authority for management
when she attended the post-October 29 demonstration meeting with her husband.64 The Board 10
applies the common law principles of agency in determining whether an individual is acting with
apparent authority.65 Thus, there must be a manifestation by the principal that creates a
reasonable belief that the principal has authorized the purported agent to make the statement at
issue.66 By speaking to employees together and representing the management point of view, V.
Ortiz possessed apparent authority. Employees would reasonably believe that she was speaking 15
for management. Moreover, even in the absence of actual or apparent authority, a principal may
be bound by the actions of an individual where the principal ratifies those actions by silence.67
Here, V. Ortiz made the statement while accompanying her husband and OJS’ owner R. Ortiz to
a meeting with employees. R. Ortiz who was present at the time of the statement, did not
controvert V. Ortiz’ statement. By his silence, he ratified the statement.20
In the context of discussion about the October 29 demonstration, the statement of V.
Ortiz to Banegas and Mendoza that they did not know who they were dealing with referencing
the access to lawyers and financial resources enjoyed by Preferred also constituted a threat of
unspecified reprisals. Finally, threatening to file a lawsuit against an employee in retaliation for 25
protected activity tends to restrain and coerce Section 7 rights.68 The statement to Banegas by V.

62
See, e.g., Publix Super Markets, supra, 347 NLRB at 1345-1346.
63 An employer violates Sec. 8(a)(1) if it communicates to employees that they will jeopardize their
job security, wages or other working conditions if they support the union. Metro One Loss Prevention
Services Group, supra, 356 NLRB at 89-90 (employer statement that employees should be grateful for
their years of service and pay rates and warning that it could get much worse if a union came in
constituted unlawful threat). The mere threat of an unspecified reprisal is sufficient to support a finding
that the employer has violated Section 8(a)(1). See, e.g., SDK Jonesville Division, LP, 340 NLRB 101,
101-102 (2003) (unspecified threat that it was not in employee’s best interest to be involved with the
union found violative, citing Keller Ford, 336 NLRB 722 (2001), enfd. 69 Fed. Appx. 672 (6th Cir.
2003), a supervisor unlawfully advised an employee not to talk to other employees about insurance
copayments, because it could be “hazardous to [his] health;” Long Island College Hospital, 327 NLRB
944, 945 (1999), a supervisor unlawfully told employees to proceed with caution in taking a work related
issue to the union, because one of the employees was getting an unfavorable reputation with
management.)
64 The General Counsel cites Mid-South Drywall Co., Inc., 339 NLRB 480 (2003) (if employees
would reasonably believe under all the circumstances that individual speaks on behalf of management,
employer has vested individual with apparent authority); Zimmerman Plumbing & Heating Co., 325
NLRB 106 (1997), enfd. in relevant part, 188 F.3d 508 (3d Cir. 1999) (same).
65 Pan-Oston Co., 336 NLRB 305 (2001).
66 Pan-Oston, supra, 336 NLRB at 305-306.
67 Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82, 83 (1988).
68 See Network Dynamics Cabling, 351 NLRB 1423, 1427 (2007), (threat to sue an employee would
JD(SF)–36–16
40
Ortiz that she was going to sue him for harassing Mendoza was certainly a reaction to the
employee demonstration. Thus, the record fully supports a finding that the threat of discharge for
engaging in the demonstration, the threats of unspecified reprisals for engaging in protected
activity, and the threat of filing a lawsuit against Banegas would reasonably tend to chill Section
7 activity.5
ii) Unpled Allegation of Promise of Wage Increase for Rejection of Union
In addition to these complaint allegations of interrogation, threat of termination, threat of
filing a lawsuit, and threats of unspecified reprisals, the General Counsel asserts a further 10
statement during the October 31 conversation violates the Act. That is, in asking Banegas how
much money he wanted, R. Ortiz in essence promised a wage increase for cessation of
picketing.69 This matter was not called to Respondents attention until post-hearing briefing and
was not fully litigated. Allowing amendment at this late stage of the proceedings denies
Respondents due process of law. See, e.g., The Dalton School, supra, 364 NLRB No. 18, fn. 2 15
(2016); Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345.
10. About October 30, R. Ortiz told employees that Their Working Conditions Had
Changed Due to Their Union Activity (Complaint Paragraph 8(c))
20
a) Facts
Two days after the October 29 demonstration, R. Ortiz told Useda that she would not be
able to clean three offices that she usually cleaned because, “he was upset at me because of the
picket.” Useda’s testimony is uncontradicted and is credited.25
b) Analysis
This statement clearly indicates that R. Ortiz told Useda that her working conditions were
changed due to her union and protected, concerted activities. Such a statement would tend to 30
chill Section 7 activity and constitutes a violation of the Act. Thus, Respondents violated Section
8(a)(1) of the Act by threatening to reduce Useda’s work hours because she engaged in
protected, concerted and Union activities.
11. On or about November 1, R. Ortiz told employees at 55 Hawthorne he would 35
lose or had lost the Preferred contract because of employees’ union activity.
(Complaint paragraph 8(d)(i))
a) Facts
40

objectively reasonably tend to interfere with, restrain or coerce an employee’s Sec. 7 activity.)
69 Banegas’ credited testimony was that R. Ortiz asked him how much money he wanted. This was
implicitly a promise of a wage increase to get rid of the demonstrations. Because there was no proferred
legitimate reason for a wage increase, it may be inferred that the offer was motivated by an unlawful
purpose to interfere with concerted activity. See Network Dynamics Cabling, supra, 351 NLRB at 1424.
JD(SF)–36–16
41
Around November 1, R. Ortiz recalled telling janitors that “they were my employees, that
the only thing they were accomplishing was that I would lose the contract because they’re my
employees.” This statement was made in relation to the employees’ demonstration of October
29.
5
b) Analysis
The comment clearly constitutes a statement that the employees’ demonstration was
going to cost him his cleaning subcontracts with Preferred. Such a statement tended to chill
employee Section 7 by specifically warning employees that their demonstration would cause OJS 10
to lose it contracts. Thus, the statement constitutes a violation of Section 8(a)(1).
12. Unalleged Claims of Unlawful Conduct Prior to November 19
The General Counsel asserts that further unalleged violations occurred after November 1 15
and before November 19. In order to include them, the General Counsel requests amendment of
the complaint to include these allegations pursuant to her motion made at the end of the hearing
to conform the pleadings to the proof. The motion to conform was granted as to minor matters
and does not afford a basis for adding these new allegations to the case. Further, examination of
the litigation record reveals that none of these matters was fully and fairly litigated.20
First, the General Counsel urges that around November 17, R. Ortiz interrogated Tapia
regarding whether she made the complaints leading to the October 29 demonstration and
promised her a raise if he kept the contracts and she kept her job. Tapia’s testimony is credited.
Tapia was a highly credible witness who exhibited excellent recall. Her overall demeanor was 25
that of concentration on listening to the questions and answering with the facts. She had
difficulty testifying about her encounters with R. Ortiz but was generally forthright and clear. R.
Ortiz was asked during Respondents’ case-in-chief if he ever asked Tapia about any of the
allegations in the flyer. R. Ortiz responded that he had not. Although Respondents had no notice
that the General Counsel intended to seek to add this conversation to the complaint, Respondents 30
did question R. Ortiz about the November 17 encounter. Respondents did not question Tapia
about this conversation on cross-examination. However, merely asking questions about a
conversation does not warrant a conclusion that the matter was fully litigated.70 Failure to
question Tapia does not necessarily indicate that the matter was not fully litigated. Under these
circumstances, it is not possible to conclude that Respondents had notice that this questioning 35
would be at issue. Thus, it is found that the matter was not fully litigated. See, e.g., The Dalton
School, supra, 364 NLRB No. 18, fn. 2 (2016); Piggly Wiggly Midwest, LLC, supra, 357 NLRB
at 2345
As to the promise of a raise if R. Ortiz was able to keep his contracts, R. Ortiz was not 40
asked about this and there was no notice that this allegation would be raised. Just as above, it is
not clear that this matter was fully and fairly litigated. Therefore, it will not be added to this
litigation.

70 Mine Workers District 29, 308 NLRB 1155, 1158 (“opportunity to cross-examine does not qualify
as fully litigating an issue.”)
JD(SF)–36–16
42
13. Demonstration of November 19 at 55 Hawthorne
On November 10 at a meeting at SFLWC, Mendoza, Banegas, Useda, and Tapia met with
Kramer and Frias. Useda reported a conversation she had with R. Ortiz and his wife. Tapia told 5
those present that R. Ortiz confronted her after the October 29 demonstration and asked if she
was the person who made the accusations of sexual harassment. This was Tapia’s first meeting
and she related her prior treatment by R. Ortiz at this meeting. 71 Useda, Banegas, Tapia, and
Mendoza agreed to a second picket.
10
On November 19, another demonstration took place on the sidewalk in front of 55
Hawthorne Street. The employees walked in circles on the sidewalk in front of the building
chanting slogans such as “Up with the Union. Down with exploitation.” Flyers distributed at this
demonstration with pictures of five OJS employees naming the employees by first name:
“Yunuen” [Useda], “Claudia” [Tapia], “Balbina” [Mendoza], “Amalia [last name unknown], and 15
“Joel” [Banegas]. The text was similar to that on the flyer distributed on October 29. The flyer
stated above the pictures, “We want our voices to be heard.” Between and below the pictures, the
flyer stated:
We work for Preferred Building Services which cleans the offices of KGO 20
radio. We get paid the San Francisco minimum wage of $10.74 per hour. We
endure abusive and unsafe working conditions and sexual harassment. The
work invovlves heavy lifting and the risk of serious injury. A foreman
arbitrarily cut hours from eight hours per day to six hours and said that any
additional hours would need to include sexual favors. The company does not 25
provide paid sick days that are required by San Francisco law or pay
medical bills for injuries on the job as required by workers compensation.
We are calling on KGO radio and Cumulus Media as the major tenant to
help in getting Preferred Building Services to listen to our demands and not 30
ignore us.
Join us for a picket line outside the offices of KGO radio.
Wednesday, November 1935
10 a.m.

71 Tapia explained that in April, in the basement at the exit closest to the elevator, R. Ortiz told her he
had seen a picture of Tapia on Facebook and asked her if she had “those large breasts” under her uniform.
She testified that on another occasion he told her she could have a longer break if she would go out with
him to a women’s strip venue. “And I said no, but he was always making dirty comments and saying sex-
related things.” He also stated, according to Tapia, “that his wife told him that he could put it anywhere as
long as he used a condom.” Tapia said that she protested about his behavior but he told her, “that things
were done the way that he said and that all his female employees were whores.” R. Ortiz denied each of
these statements. There is no evidence that Tapia shared such experiences with other employees until
November. Rather, she testified that when these things occurred, she sought the assistance of a friend to
find another job. She further testified that when R. Ortiz found out about this, he threatened her with
discharge. At another time, Tapia testified, she left a message for L. Squeri but did not receive a reply.
JD(SF)–36–16
43
55 Hawthorne St, San Francisco
(between Howard and Folsom, parallel to 2nd and 3rd Streets)
San Francisco Living Wage Coalition
For more information, contact 415-863-1225, sflivingwage@riseup.net
5
With the exception of the blue area above, the same placards carried on October 29 were
also carried on November 19. The picketers shouted the same messages as at the October 29
demonstration such as we want a union, not exploitation and we want justice now.
14. On or about November 19,72 R. Ortiz threatened employees at 55 Hawthorne with10
unspecified reprisals (Complaint paragraph 8(d)(ii); V. Ortiz threatened employees at 55
Hawthorne with unspecified reprisals (Complaint paragraph 8(d)(iii)
a) Facts
15
When Useda reported to work at 8:30 p.m. on November 19, R. Ortiz met her on the 11th
floor. R. Ortiz asked Useda why she had “done that with the Union.” Useda asked for co-worker
Franco to come to the meeting. Useda went to the 5th floor while R. Ortiz retrieved Franco.
When Franco arrived, Useda responded that she went to the Union because she was tired and did
not like his behavior. R. Ortiz protested that he was not guilty of the accusations and he did not 20
like the accusations of harassment. R. Ortiz told Useda that Banegas was the one harassing
Mendoza. Then, according to Useda, “He just left angry and he said that the contract would be
over like dismissing it.” According to Useda, R. Ortiz added, “He just told me to be careful with
what I was doing whether I knew what I was doing. That Karl Kramer was not even an attorney.
He was just an activist.” When R. Ortiz asked why Kramer was present, Useda replied, “We 25
asked for help.”
Franco recalled this meeting as well. While she was on the tenth floor working, R. Ortiz
asked her to come to the fifth floor for a meeting. While they were in route to the meeting, R.
Ortiz asked Franco if she was involved in the demonstration. She replied that she was not. 30
Franco’s testimony is credited. When they were on the fifth floor, according to Franco, R. Ortiz
addressed Useda and asked “why has it arrived to this point.” Useda responded, “I told you. You
didn’t pay any attention.” At this point, according to Useda, V. Ortiz asked her why she came
back to work then and reminded Useda that she had already been fired once for being a thief.
Useda responded that she was not a thief. R. Ortiz did not recall his wife making this statement 35
to Useda.
At the meeting, V. Ortiz recalled she asked if Useda had proof of the accusations in the
flyers. Useda asked to have employee Franco join the meeting and Franco was called into the
meeting by R. Ortiz. Then according to R. Ortiz, Useda said, “there was nothing against me, it 40
was against Preferred.” V. Ortiz recalled this meeting: “I remember that we got there and we –
with that paper, thing from that thing that they were doing, so that Yunuen [Useda] would clarify
for me what they were accusing my husband of and whether they had proof.” V. Ortiz testified

72 The complaint alleges that this conduct occurred on November 1. Witnesses uniformly placed the
meeting as on November 19. The complaint is corrected as to this date pursuant to the General Counsel’s
motion at the end of the hearing to conform the pleading to the proof.
JD(SF)–36–16
44
that there was no threat that anyone would be fired. She did not accuse Useda of being a thief or
words to that effect. When V. Ortiz asked for proof, Useda asked for Franco to join them but
after Franco joined the group, neither Useda nor Franco said anything else about the allegations
on the flyer. Although she worked in the building once or twice a week, no janitor had ever
complained to her about inappropriate comments made by her husband. For the reasons stated 5
above, Useda’s testimony is credited.
b) Analysis
R. Ortiz told Useda that she had better be careful about participating in the 10
demonstrations. V. Ortiz told Useda, in the context of discussing the leaflets, that Useda had
already been fired once. In the context of this conversation, V. Ortiz had apparent authority to
make the statement. Just as in the analysis of complaint paragraphs 8(b)(ii) and 8(b)(iii) above,
the statements of R. Ortiz and V. Ortiz contain threats of unspecified reprisals. Thus, these
statements violated Section 8(a)(1).15
15. Unpled Allegations Regarding Post-Demonstration Meeting of November 19
The General Counsel alleges in her brief that R. Ortiz’ questioning of Franco on their
way to meet with Useda on November 19 constitutes an unlawful interrogation. Although 20
Franco’s testimony that on the way to the meeting R. Ortiz asked her if she was involved in the
demonstration is credited, this issue was not litigated by the parties either explicitly or implicitly.
Thus, this attempt to amend the complaint is denied. See, e.g., The Dalton School, supra, 364
NLRB No. 18, fn. 2 (2016); Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345.
25
Franco and R. Ortiz spoke on the sixth floor after the meeting with Useda on November
19. V. Ortiz was present during this conversation. According to Franco, R. Ortiz continued,
“because of the protest and Yunuen’s [Useda’s] fault, and the employees of the other building,
he said he or they were going to lose their contracts, and they were going to send them to hell, he
said.” R. Ortiz also told her that the last day of work would be on the 15th.73 R. Ortiz explained 30
to Franco that his “female boss” was upset with the employees and that “he or they were going to
lose the contract.” R. Ortiz concluded, “why do they need to get the Union involved in this when
it has nothing to do with the Union.” For the first time, the General Counsel argues in her brief
that telling employees that their union activities were to blame for losing the contract chills
Section 7 rights. Respondents had no notice that this was to be litigated. The legality of these 35
statements was not fully litigated and is thus not properly presented. See, e.g., The Dalton
School, supra, 364 NLRB No. 18, fn. 2; Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345.
During a post-meeting encounter a few days later between R. Ortiz and Franco, Franco
testified that R. Ortiz told her he lost or was going to lose his cleaning contracts because of the 40
stupidity of what Useda and others were up to. The General Counsel alleges for the first time on
brief that this statement constituted a violation of the Act. This matter similarly was not fully and
fairly litigated and no finding may properly be made. See, e.g., The Dalton School, supra, 364
NLRB No. 18, fn. 2 (2016); Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345.
45

73 Presumably December 15 as this conversation was after the November 19 demonstration.
JD(SF)–36–16
45
16. On or about November 19, R. Ortiz told employees they were fired and could no longer
work because of their union activity and asked employees if they were happy because
they were fired because of their union activity (Complaint paragraph 8(e)(i) and (ii))
a) Facts5
When Mendoza arrived for work on November, 19, she was told by the security guard to
wait in the lobby. R. Ortiz arrived, handed Mendoza an envelope that contained her final check,
and said, “Now you’re happy that’s what you wanted. I didn’t expect that from you.” Mendoza’s
testimony is credited for the reasons stated above.10
b) Analysis
The legality of the discharges of Mendoza and Banegas on November 19 is discussed in a
later section of this decision. Thus, only the allegations regarding statements made in connection 15
with the discharge are at issue in complaint paragraphs 8(e)(i) and (ii). R. Ortiz’ statement about
Mendoza being happy clearly relates her participation in the demonstration to her discharge.
Thus, the statement, in essence, is a statement that Mendoza is discharged for her union activity.
Clearly such a statement chills union activity and violates Section 8(a)(1) of the Act.
20
17. Alleged Surveillance (Complaint paragraph 8(f))
a) Facts
On November 19, Mendoza observed R. Ortiz and L. Squeri in the security area of the 25
lobby. L. Squeri was extending her cell phone as if taking pictures. Kramer also observed the
woman pointed out to him as L. Squeri apparently taking photos with her cell phone. He called
to her to get her attention but she left the area. Useda observed L. Squeri walking around outside
55 Hawthorne. L. Squeri was holding a cellphone pointed towards the picketers. Tapia made this
same observation. Banegas observed L. Squeri in the lobby with her cell phone in her hand 30
taking pictures or videos. R. Ortiz was with L. Squeri. L. Squeri agreed that she took photos and
a video at this demonstration. R. Squeri testified that he asked L. Squeri to take the pictures in
order to preserve information about who was picketing and what was on the signs in case it
became important at some point.
35
b) Analysis
There is no dispute that L. Squeri took photos and a video of the demonstration and that
demonstrating employees observed her doing so. Absent proper justification, photographing or
videotaping employees as they engage in protected concerted activity violates Section 8(a)(1). 40
Saigon Gourmet, supra, 353 NLRRB at 1066. The justification offered here is that R. Squeri
wanted information preserved in the event it became important at some point in the future. There
is no evidence that Respondents anticipated any violence during the demonstration or blocking
of ingress and egress. Accordingly, taking the photos and a video reasonably tended to chill
employee activity and violates Section 8(a)(1) of the Act.45
JD(SF)–36–16
46
18. Statement at 240 Golden Gate that Employees were discharged because of
Their Union Activity (Complaint Paragraph 8(g))
a) Facts5
On about November 20, Miranda called R. Ortiz on speaker phone from the Union’s
office at 240 Golden Gate in the presence of Useda, Banegas, and Mendoza. Miranda asked R.
Ortiz why he fired employees and he responded, according to Miranda, that it was because they
wanted a union and Lauren did not want to see any of them anymore. R. Ortiz said that he had 10
lost the building. Miranda recalled that R. Ortiz told her that Banegas and Mendoza were fired
because he was told to fire them by “Leslie” at Preferred. R. Ortiz said he had warned Mendoza
and Banegas to stop making so much noise. “They were tired of all this negative noise.” Miranda
protested that R. Ortiz had to place the janitors somewhere and he responded that Mendoza had
not turned in a green card. Miranda told R. Ortiz that he should look for a lawyer.15
According to Banegas, R. Ortiz responded to Miranda’s questioning about why the
employees were discharged stating that Mendoza’s green card was expired and Banegas had not
filled out an application for employment. Miranda asked R. Ortiz who he worked for and he
responded that he worked for Preferred. Miranda said, be careful, “that Preferred Building 20
Services wiping their butt with him [R. Ortiz].” After exhausting Banegas’ recollection about the
phone conversation, Banegas was asked if R. Ortiz referenced the protests. He responded that
when Miranda asked why the employees were fired, “yes, [R. Ortiz] said that we were also
making noise. They were making a scandal.”
25
R. Ortiz agreed that he received the phone call from Miranda. He recalled that she asked
why he fired Banegas and Mendoza and he responded that Banegas was discharged for failure to
provide documentation to work and Mendoza was not doing her job well. Miranda asked why R.
Ortiz was paying minimum wage and he responded that he was not making enough money to pay
more. R. Ortiz, when led, also recalled that Miranda said that Preferred was using him. R. Ortiz 30
recalled that Miranda suggested that he get a lawyer because he was in serious trouble. R. Ortiz
denied that he stated during this phone call, “that’s the way us Mexicans talk to one another” or
words to that effect. R. Ortiz agreed he might have said that to Kramer in “these conversations.”
R. Ortiz denied that he told Miranda that Banegas and Mendoza were terminated for engaging in
the demonstration or picketing. R. Ortiz denied that he told Miranda that L. Squeri was his boss.35
The testimony of Banegas and Miranda is credited over the testimony of R. Ortiz when
there is divergence in their recollections. Thus I find that on November 20, by phone
conversation, R. Ortiz stated that he fired Mendoza and Banegas because they wanted a union,
they were making a scandal, or words to that effect. Further, R. Ortiz stated during the 40
conversation that Mendoza was discharged because of deficient performance of her work and
Banegas, for failure to complete his employment application.
b) Analysis
45
A statement that employees were discharged, in part, for their protected, concerted or
union activity reasonably tends to chill protected, concerted or union activity. Thus, the
JD(SF)–36–16
47
statement that Banegas and Mendoza were discharged due to this activity violates Section 8(a)(1)
of the Act.
19. Unpled Allegation in December
5
The General Counsel claims that a further, unpled violation of the Act occurred on
December 11 at 2:01 p.m. At that time, Tapia and R. Ortiz began the following text exchange:
Ortiz: Tomorrow is last day.
Tapia: What do you mean?10
Ortiz: The contract is over. I think you know that’s why I was taken out,
because you wanted to the have the union.
Tapia: I don’t know what you mean. You haven’t told me anything about
this. Overnight you’re leaving me without a job. There are no cleaning
fluids here no rags and you as the person in charge should have brought 15
what we needed. There are no gloves nor anything. Obviously, they were
going to take the contract away. When are you going to pay me the days I
worked? Or are you going to give me a job elsewhere?
Ortiz: When you did the protest they took the job away and I think they let
you know that I wasn’t going to be there anymore and they cancelled my 20
contracts.
Tapia: No, they didn’t let me know anything. It was you obligation as a
company to let us know, but now you’re dismissing me overnight. But
that’s fine, just tell me when are you going to give me my paycheck.
25
The General Counsel claims that this exchange constitutes a violation of Section 8(a)(1)
because it constitutes a blanket statement that the contract was over because of employee
protected activity. For the reasons set forth in section E.4., no violation is found for these
unalleged statements. Respondents had no notice that this text message would be alleged to
violate the Act. It was not fully and fairly litigated and to include it in the case now would violate 30
due process of law. See, e.g., The Dalton School, supra, 364 NLRB No. 18, fn. 2 (2016) (unpled
allegation which was not fully and fairly litigated may not be heard as Respondents had no notice
and no opportunity to mount defense); see also, Piggly Wiggly Midwest, LLC, supra, 357 NLRB
at 2345 (no amendment allowed where respondent was not on notice that it faced liability for this
specific conduct and it had no reason at the hearing to attempt to dispute the unpled conduct).35
20. Alleged Unlawful Termination of Mendoza and Banegas
(Complaint Paragraph 9)
a) Facts40
Mendoza reported for work after the November 19 picketing and was told by the security
guard that she was not working and she should wait in the lobby for R. Ortiz. When he arrived,
R. Ortiz handed Mendoza an envelope with her final check in it and told her, “Now you’re
happy. That’s what you wanted. I didn’t expect that from you.”45
JD(SF)–36–16
48
When Banegas reported to work on the evening of November 19, R. Ortiz told him to
leave, that he was fired. Banegas asked why and R. Ortiz responded, according to Banegas,
“because you’re making noise and you’re making the company, Preferred Building Service, look
bad.” Banegas’ testimony is credited for the reasons stated above.
5
Banegas agreed that he never completed his employment application which R. Ortiz gave
him sometime after he began working at One Kearny. According to Banegas, “when we started
with the protests, [R. Ortiz] started asking me for the application.”
At hearing, R. Ortiz testified that the reason Banegas was discharged was due to “the 10
quality of the work and because he never gave me the application or paperwork to work.” R.
Ortiz explained that he requires legal documentation of any new hired employee. R. Ortiz
testified that he had given Banegas numerous opportunities to provide his documentation – four
or five different times and each time Banegas gave an excuse. This occurred from at least May
2014, when R. Ortiz took over One Hawthorne, through November 2014 when Banegas was 15
terminated. R. Ortiz did not take action until November, “just to be nice because we all need to
work.”
On cross-examination, R. Ortiz agreed that he did not require documentation from four
janitorial employees who are his family members who work for OJS. After Banegas and 20
Mendoza were terminated, R. Ortiz and his wife took over the janitorial duties at One
Hawthorne.
According to R. Ortiz, Mendoza’s performance became “worse” after the demonstrations.
For instance, on several occasions “they” would put plastic trash bags in the recycling bins after I 25
told “them” not to do that because he would get fined by the city. R. Ortiz explained that this was
not only Mendoza but also the behavior of Banegas. R. Ortiz testified he also had to tell Banegas
on several occasion to go back and vacuum where he had missed. R. Ortiz testified that he told
Mendoza she could be suspended if the quality of her work did not improve or that he would
have to replace her. R. Ortiz’ testimony regarding the reason for Banegas’ discharge appeared to 30
be an afterthought. Initially, he relied solely on Banegas’ failure to complete his paperwork.
Then he added that Banegas was not performing his work properly.
b) Wright Line Analysis
35
In 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 Management Corp., 462 U.S. 393
(1983), the Board established a framework for deciding cases turning on employer motivation.
To prove an employer's adverse employment action is discriminatorily motivated, the General
Counsel must first establish, by a preponderance of the evidence, that an employee's protected or 40
union activity was a motivating factor in the employer's decision.
The elements commonly required to support such a showing are union or protected,
concerted activity by the employee, employer knowledge of the activity, and antiunion animus
on the part of the employer. Proof of animus and discriminatory motivation may be based on 45
JD(SF)–36–16
49
direct evidence or inferred from circumstantial evidence.74 Several factors, including evidence of
suspicious timing, false reasons given in defense, failure to adequately investigate alleged
misconduct, departures from past practices, and disparate treatment of the discharged employees
support inferences of animus and discriminatory motivation.75
5
If the General Counsel establishes a prima facie case of discriminatory motivation, the
burden of persuasion shifts “to the employer to demonstrate the same action would have taken
place even in the absence of the protected conduct.” Wright Line, supra at 1089; see also, Hogan
Transports, Inc., 363 NLRB No. 196, slip op. at 5 (2016); Manno Electric, 321 NLRB 278, 283
fn. 12 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997). 10
Regarding the General Counsel’s prima facie case, the record amply reflects that
Mendoza and Banegas engaged in both Union and protected, concerted activity by joining
together with other employees and with SFCLW and SEIU Local 87 to improve their wages,
hours, and working conditions. These efforts were open and observed by Respondents’ 15
representatives L. Squeri and R. Ortiz. Numerous unlawful statements indicate that Respondents
harbored animus toward the employees’ demonstrations. Explicit statements of Respondents also
indicate that this was the reason they were fired.76 Additionally, the timing of their discharges on
the evening of the second demonstration supports an inference of discriminatory motivation.
Thus, the General Counsel has shown by a preponderance of the evidence that the protected 20
activity of Mendoza and Banegas was a motivating factor in their discharges.
The burden of persuasion then shifts to Respondents whose burden it is to show that they
would have taken the same action absent the protected, concerted and Union activity of Mendoza
and Banegas. R. Ortiz testified that Banegas was discharged for failure to complete his 25
employment application and Mendoza was fired for poor work performance. R. Ortiz also stated
that Mendoza had failed to provide employment re-verification.
The record suggests that an integral part of completing an employment application is
providing I-9 documentation of authorization to work. Banegas testified that he had been asked 30
repeatedly to complete his employment application with supporting documentation and he had
never done so. R. Ortiz agreed that he asked Banegas for his completed application on numerous
occasions but until November 19, 2014 had not fired him for failure to complete the application
because “everyone needs a job.” Mendoza told R. Ortiz that she would update her credentials
when her husband gave her the money to do so. It was not until after the second demonstration 35
that these reasons were put forth by R. Ortiz for discharge.
The record reflects that R. Ortiz did not require his family members to provide
employment documentation. The record further reflects that other employees were not given
applications immediately or did not complete them immediately. Due to this disparate treatment, 40

74 Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004); Ronin Shipbuilders, Inc., 330
NLRB 464, n. 5 (2000.
75 Medic One, Inc., 331 NLRB 464, 475 (2000); see also, Masland Industries, 311 NLRB 184, 197
(1993), citing NLRB v. Rain-Ware, Inc., 732 F.2d 1349, 1354 (7th Cir. 1984).
76 Such statements include two admissions by R. Ortiz that employees were fired for taking part in the
demonstrations.
JD(SF)–36–16
50
to the extent Respondents rely on failure to complete employment application or re-verify
appropriate documentation, it must be concluded that this reason is pretextual.
Moreover, to the extent Respondents relied on poor work performance to discharge
Mendoza and Banegas, there is a failure to show that either of them performed poorly at any time 5
and specifically around the time of the discharges. Thus, this reason is also found to be a
pretextual reason. Moreover, it is noted that R. Ortiz’ testimony regarding speaking to Banegas
and Mendoza about their work performance, even if true, did not rise to the level of a reprimand
or warning that better work needed to be performed or there would be consequences. Both
Banegas and Mendoza had a long history of working in these buildings without drawing 10
criticisms of inadequate performance. Finally, the timing of the discharges on the date of the
second demonstration as well as explicit statements that the employees were discharged due to
the demonstrations strongly indicates that the true reason for these discharges was the union and
protected activity of Mendoza and Banegas and those put forth at hearing are pretextual.
15
Due to reliance on pretextual and disparate treatment, Respondents have failed to carry
their burden to show that they would have discharged Banegas and Mendoza on November 19 in
any event. Thus the record as a whole clearly indicates that Banegas and Mendoza were
discharged on November 19 for their protected, concerted and Union activity in violation of
Section 8(a)(3) and (1) of the Act.20
Respondents argue that Mendoza and Banegas were discharged due to their participation
in unlawful pickets. Certainly there are circumstances in which an employer may lawfully
discharge an employee for participation in an unlawful strike. Rapid Armored Truck Corp., 281
NLRB 371, fn. 1, 382 (1986) (employer did not violate Act by discharging employees engaged 25
in unlawful 8(b)(7)(C) strike). However, as found above, the demonstrations did not have an
unlawful recognitional or secondary intent. Further, there is not a shred of evidence that
Respondents relied on the asserted unlawfulness of the demonstrations or the “malicious,
unlawful defamation” as grounds for discharging Mendoza and Banegas. Rather, the asserted
reasons deal with lack of proper I-9 documentation and work performance. Therefore, these 30
defenses are an after-thought and were not utilized in determining whether to discharge Mendoza
and Banegas. Thus, these defenses are rejected. See, e.g., Brown & Root USA, Inc., 319 NLRB
1009, 1009-1010 (1995) (employer did not rely on any picketing activity of applicants in
refusing to hire them and evidence failed to show that applicants engaged in disqualifying
secondary activity). 35
In conclusion, it is found that Respondents discharged Mendoza and Banegas for their
protected, concerted, and Union activity in violation of Section 8(a)(3) and (1) of the Act.
21. Termination of Cleaning Contract for 55 Hawthorne Street40
and 631 Howard Street Allegedly to Chill Union Activity and Causing
Termination of Employees (Complaint paragraph 10(a), (b), and (c))
a) Facts
45
P. Dellanini of Preferred testified he received a November 19 email from 55 Hawthorne
property manager Maxon stating that if Preferred got rid of R. Ortiz, “the problem would go
JD(SF)–36–16
51
away.” The November 19 email exchange between P. Dellanini and Maxon does not contain
such verbiage. Maxon’s email asks P. Dellanini to give him a call about the protest. A bit later,
Maxon emailed a copy of the flyer. When they spoke by phone, according to P. Dellanini,
Maxon insisted that he do something about the demonstration. P. Dellanini told him there was
nothing he could do. Maxon testified that he expected Preferred to perform an investigation into 5
the allegations of the picketers. In the meantime, Maxon banned R. Ortiz from the building.
About an hour later, at 11:33 a.m. on November 19, P. Dellanini sent an email to Maxon,
stating:
10
Ben,
In the best interest of 55 Hawthorne/631 Howard & Preferred Building Services,
we are terminating our service agreement for Janitorial and Day Porter services.
Please consider this our 30 [day] notice. Our last day of service will be 19
December 2014. Should your company or building ownership decide to terminate 15
sooner, Preferred agrees to cooperate with that action and will not impede the
transition decision. Please feel free to call me with any questions.
R. Squeri explained that he understood that on November 19 Maxon had requested that
R. Ortiz be removed from 55 Hawthorne and that Maxon speaking on behalf of Harvest 20
Properties wanted the demonstrations to stop. R. Squeri testified that the he terminated the
contract:
because we’re not – we were not going to throw Rafael [R. Ortiz], who’d been
with us for a long time, under the bus without due process. I mean, he really 25
didn’t – these accusations that they wanted the demonstrations to go away, of
which we had no control over. So – we simply said no, we’re not going to
terminate our contract with Rafael Ortiz.
Preferred and the property managers at 55 Hawthorne-631 Howard later determined it 30
would be better to terminate the contract as of December 15. On December 10, Useda received a
text from R. Ortiz stating that December 14, would be her last day. Later Useda asked R. Ortiz if
he had other work for her and he said he had no other work because he had lost all jobs because
employees asked the union for help. He said that Preferred, “had destroyed him, that they had
fired him.” 35
On December 11 at 2:01 p.m., Tapia received the following text exchange from R. Ortiz:
Ortiz: Tomorrow is last day.
Tapia: What do you mean?40
Ortiz: The contract is over. I think you know that’s why I was taken out, because
you wanted to the have the union.
Tapia: I don’t know what you mean. You haven’t told me anything about this.
Overnight you’re leaving me without a job. There are no cleaning fluids here no
rags and you as the person in charge should have brought what we needed. There 45
are no gloves nor anything. Obviously, they were going to take the contract away.
JD(SF)–36–16
52
When are you going to pay me the days I worked? Or are you going to give me a
job elsewhere?
Ortiz: When you did the protest they took the job away and I think they let you
know that I wasn’t going to be there anymore and they cancelled my contracts.
Tapia: No, they didn’t let me know anything. It was your obligation as a company 5
to let us know, but now you’re dismissing me overnight. But that’s fine, just tell
me when are you going to give me my paycheck.
On or about December 12, R. Ortiz and his wife V. Ortiz spoke to Franco and told her
that her last day would be the 15th. R. Ortiz said there were no open janitorial positions “because 10
the contract had all been lost and that they didn’t have any place to put me because now there
was no more work because the contract was done.” Franco called R. Ortiz about two months
later looking for work and he told her that he was cleaning kitchens and there was nothing
available.
15
The employees continued to meet at SFLWC once a week. Usually Kramer and Frias
were present as well as Useda, Banegas, Tapia, and Mendoza. Initially, the employees planned a
third demonstration, this one at One Kearny. They also decided to seek the support of other
janitors.
20
On December 18, 2014, the third demonstration took place on the sidewalk in front of
One Kearny Street in San Francisco, California. During the demonstration, participants
distributed a flyer identical for the most part to the flyer distributed on November 19. The same
five pictures and the same text were repeated on the top half of the flyer. However, after the text
regarding workers compensation, the December 18 text was different, as follows:25
We have picketed outside the offices of KGO radio, which we clean, and on
December 2, we filed charges with the federal government for sexual
harassment. The supervisor has retaliated by cutting the shifts for one
worker at One Kearny and 74 New Montgomery. At another building, the 30
supervisor’s relatives overburdened a worker who is pregnant, requiring her
to go to the hospital and almost causing a miscarriage.
We are calling on tenants and clients to tell Preferred Building Service to
listen t our demands and not ignore us. Contact the building manager of One 35
Kearny, Derrick Change, at 415-778-1133 or dfchang01@gmail.com. We are
demanding $15 per hour, a full eight hour day and the right to organize
without retaliation.
Join us for a picket line.40
Thursday, December 18
11 a.m.
One Kearny, San Francisco (between Geary and Market)
San Francisco Living Wage Coalition
For more information, contact 415-863-1225, sflivingwage@riseup.net45
JD(SF)–36–16
53
The employees carried the same placards and shouted the same slogans as at previous
demonstrations.
Throughout December 2014 and January 2015, the former OJS janitors visited other
buildings which they believed had contracts with Preferred. For instance, after asking for Jesus 5
Madris at 77 Geary, Mendoza, Useda, and Tapia spoke with janitors Freddie and Jorge who
worked for Preferred, according to Mendoza. Madris was not available. Mendoza knew Freddie
from working with him at One Kearny. He would come there sometimes for supplies and
Mendoza had been directed by R. Ortiz on occasions to take supplies to Freddie if he was
waiting outside One Kearny. Mendoza asked if Freddie knew she had been fired and he said that 10
he did. She and Tapia asked Freddie “if he was okay to seek the Union.” According to Mendoza,
Freddie clarified that he worked for L. Squeri. He said he was interested but he didn’t want to
lose his job. According to Tapia, Freddie said he did not know if he would support the union and
asked them to come back at a later time. When they returned, Freddie said he and his partner did
not want to talk with them anymore.15
Eventually, Mendoza reached her husband’s cousin Jesus Madris who told her that she
should not try to contact her because R. Ortiz told her that she would be fired if she joined the
employees.
20
According to Useda, she spoke by phone with Rafael [last name unknown], who worked
at 55 Hawthorne and also worked for Preferred at Millennium. She told him that she lost her job
and he asked, “why did you ask for the union?” Banegas remembered visiting Millennium with
Useda and speaking with someone named Effain, who said he was interested in the union. They
gave him some flyers and asked him to sign one but he said he could not sign it.25
In December at Opera Plaza, Useda spoke to two unnamed janitors who told her they
worked for Preferred. Useda told them that she had been fired because she asked for help from
the union. She asked if they wanted to join the effort and they told her they had to think about it
and asked Useda to come back on the following day. On the following day, Useda, Mendoza, 30
Banegas, and Tapia returned. The unnamed janitors told them to leave because if they were seen
talking with them, they could lose their jobs.
At One Rincon, Useda, Tapia, and Mendoza spoke to a janitor, at one point identified as
male, at another point identified as female, but finally identified as Antonio. Useda told this 35
janitor about “what was happening to us” and asked “whether she had any problems she could
reach out to the union, that the union was going to help us.” The individual was not interested.
Useda and Banegas also visited an adjacent building, Green Rincon, at this same time in
December and spoke to a male who said he would think about their invitation to join the union.
Banegas remembered this janitor’s name as Jonathan.40
Banegas recalled visiting a building on Folsom known as Yerba Buena and speaking to
Alex, who worked for Preferred. Banegas told Alex that he was fired for protesting with the
union and he believed it was unfair. Banegas urged Alex to support the union or one day the
same that happened to him might happen to Alex. Although Alex said he was interested in the 45
union, he did not sign the form and said he wanted to think about it. On the following day,
Banegas returned and Alex said he could not fill out the form.
JD(SF)–36–16
54
In January 2015, Mendoza spoke with Faustino at 74 Montgomery. Faustino refused to
join the employees because he could get fired. Mendoza also spoke with the engineer at 74
Montgomery, Oscar Trejo. Rejected Offer of Proof: Tapia recalled visiting Millennium with
Mendoza and Useda. They spoke to a female janitor about the Union but she stated that although 5
she was interested, she did not feel comfortable discussing this at work. When the group returned
to Millennium on the following day, the female janitor did not come out to speak with them. She
told security to let them know that she could not speak with them.
According to Useda, she and her co-workers visited about 20 sites where Preferred had 10
the cleaning contract. They spoke to about 25 employees. P. Dellanini testified that Preferred has
never subcontracted to OJS at Millennium Towers, Opera Plaza, or One Rincon.
b) Analysis
15
The General Counsel’s theory regarding Preferred’s cancellation of its contract with
Harvest Properties for 55 Hawthorne-631 Howard and the resulting cancellation of OJS’
subcontract for those properties is that this action constituted a partial closing to chill unioinism
under Textile Workers v. Darlington Mfg. Co., 380 U.S. 263 (1965). The General Counsel claims
that as a result of this partial closure, employees C. Cruz, J. Cruz, Franco, Flores, Tapia, Useda, 20
and others similarly situated were unlawfully discharged.
In Darlington, the Court sanctioned complete cessation of business even when motivated
by vindictiveness toward a union.77 However, it held that a partial closing is an unfair labor
practice if motivated by a purpose to “chill unionism” in remaining locations.78 As the Court 25
explained,
If the persons exercising control over a plant being closed for anti-union reasons
(1) have an interest in another business, whether or not affiliated with or engaged
in the same line of commercial activity as the closed plant, of sufficient 30
substantiality to give promise of their reaping a benefit from the discouragement
of unionization in that business; (2) act to close their plant with the purpose of
producing such a result; and (3) occupy a relationship to the other business which
makes it realistically foreseeable that its employees will fear that such business
will also be closed down if they persist in organizational activities, we think that 35
an unfair labor practice has been made out.
Because direct evidence of motive is unusual, circumstantial evidence may be utilized to
permit inferences of “chilling”motivation. DeSoto, Inc., 278 NLRB 788, 806 (1986); Joint
Industry Board, 238 NLRB 1398, 1401 (1978). Such circumstantial evidence includes 40
contemporaneous union activity at the employer’s remaining facilities, geographic proximity of
the employer’s facilities to the closed operation, the likelihood that employees will learn of the
circumstances surrounding the employer’s unlawful conduct, and representations made by

77 Darlington, 380 U.S. at 272.
78 Darlington, 380 U.S. at 275.
JD(SF)–36–16
55
employer agents and supervisors to other employees. Bruce Duncan Co., 233 NLRB 1243, at
1243 (1977), modified on other grounds, 590 F.2d 1304 (4th Cir. 1979).
In determining whether an employer’s motive is to chill unionism in its remaining
operations, the Wright Line test is applied to examine the timing and manner of the closure in 5
relation to employee protected conduct. Real Foods Co., 350 NLRB 309, 312 (2007). As the
Board explained:
Under this test, the General Counsel must first prove, by a preponderance of the
evidence, that the decision was motivated by the employees’ protected concerted 10
activity. To carry his initial burden, the General Counsel must show that the
employees had engaged in protected activity and that the employer knew of the
activity. The General Counsel also must establish that the activity was a
substantial or motivating reason for the employer’s action. If the General Counsel
meets this burden, then the burden of persuasion shifts to the employer to prove 15
that it would have taken the same action even in the absence of the protected
conduct. [footnote omitted]
Individualized proof is unnecessary in the context of cessation of operations. Where an
employer takes adverse action against an entire body of employees due to their protected 20
activity, it “manifests its animus toward all of them.” Igramo Enterprise, Inc., 351 NLRB 1337,
1339 (2007), rev. denied 310 Fed.Appx. 452 (2d Cir. 2009). See also W.E. Carlson Corp., 346
NLRB 431, 433 (2006) (knowledge of individual employee’s protected activity is “immaterial”
where employer bears animus against protected activity by an entire group of employees).
25
Further, it is not necessary to prove that remaining employees were actually “chilled” in
their union activities. Rather, the General Counsel may show that a chilling effect was
foreseeable based on the fair inferences arising from the totality of the circumstances. George
Lithograph, 204 NLRB 431, 431-432 (1973) (a finding of one antiunion motive to close does not
ipso facto prove another to chill unionism at other locations but supports a logical inference). 30
Focusing on the timing and manner of the closure in relation to employee Union activity,
there is no dispute that concerted activity and Union activity began among OJS employees in
September and October. The employees initially involved in this activity worked at One Kearny,
One Hawthorne, and 55 Hawthorne. OJS and Preferred learned of this activity on October 29 35
when employees picketed with signs and leaflets advertising their concerted and union activity.
The record contains substantial evidence of animus to this activity. Further, explicit,
contemporaneous statements of R. Ortiz link the demonstrations to loss of the 55 Hawthorne
contract. R. Ortiz told Franco on December 15 that he had lost his subcontract because of the
nonsense the employees were doing. Around this same time, R. Ortiz told Useda that because the 40
employees asked the Union for help, he had lost all his jobs.
Thus, the record amply supports a finding that employee protected, concerted and Union
activity was a substantial or motivating reason for cancellation of the contract with Harvest
Properties. As R. Squeri explained, he cancelled the contract in order to end the demonstrations. 45
The General Counsel has therefore satisfied the burden to show, by a preponderance of the
JD(SF)–36–16
56
evidence, that the decision to cancel the contract was motivated by the employees’ protected,
concerted activity.
There is an absence of evidence to rebut this prima facie showing. The sole reason
advanced was that the contracts were cancelled to stop the demonstrations. There is no evidence 5
of a plan to cancel prior to that time. Rather, Respondents engaged in a series of events to thwart
the employee activity including numerous threats of retaliation and discharge of two of the
demonstrators. Thus, Respondents have failed to establish that they would have made the same
decision within the same timeframe in the absence of employee protected, concerted and Union
activity. 10
There is no dispute that Respondents’ other cleaning contracts besides those at 55
Hawthorne-631 Howard encompassed numerous direct contracts with buildings or building
management as well as numerous subcontracts to clean buildings. Many were located in a small
geographic area. Family and friends of Respondents’ employees were also employed by 15
Respondents cleaning offices in other downtown buildings. The record indicates that many of
them were aware of Respondents’ antiunion activities. There exists a strong likelihood that by
cancelling the 55 Hawthorne-631 Howard contract, Respondents would discourage similar
activity at these other locations. Closing one operation because of protected, concerted and
Union activity was an object lesson, a realistically foreseeable consequence for other employees 20
warning them that further demonstrations would result in further contract cancellation.
Accordingly, it is found that Respondents cancelled the contract to clean 55 Hawthorne-
631 Howard and the subcontract between Preferred and OJS to perform the cleaning service in
order to chill union activity at its other locations and Respondents could reasonably have 25
foreseen this likely result. It is found that Respondents motivation was to chill unionism in its
remaining locations. This chilling effect was entirely foreseeable and, hence, intended. The result
was that employees C. Cruz, J. Cruz, Franco, Flores, Tapia, Useda, and any other similarly
situated employees were unlawfully discharged in violation of Section 8(a)(3) and (1) of the Act.
30
22. Since about December 14, Respondents have failed to offer employment
Opportunities to its employees Tapia and Useda (Complaint paragraph 10(d))
a) Facts
35
The General Counsel alleges that Tapia and Useda were not only unlawfully discharged
in connection with the unlawful cancellation of the contract but Respondents did not offer them
available positions thereafter because of their Union and protected, concerted activities. In other
words, absent their protected activity, Respondents would have placed them in other locations
where janitorial positions were available. The General Counsel points to two vacancies at One 40
Kearny due to the discharge of Mendoza and Banegas. The General Counsel also relies on
evidence that at least one new employee was hired for 77 Geary-33 Grant on January 14, 2015.
The General Counsel notes that the record contains numerous incidents of employee fluidity in
moving employees from one building to another. Relying on the fact that Preferred has over 100
direct employees with high turnover rate, the General Counsel also urges that Preferred had the 45
capacity to continue Tapia and Useda as direct employees.
JD(SF)–36–16
57
b) Analysis
In FES, 331 NLRB 9 (2000), supplemented by 333 NLRB 66 (2001), enfd. 301 F.3d 83
(3d Cir. 2002), the Board set forth the following framework to analyze allegations of 5
discriminatory failures to hire. The General Counsel has the burden to prove: (1) that the
respondent was hiring, or had concrete plans to hire, at the time of the alleged unlawful conduct;
(2) that the applicants had experience or training relevant to the announced or generally known
requirements of the positions for hire, or in the alternative, that the employer has not adhered
uniformly to such requirements, or that the requirements were themselves pretextual or were 10
applied as a pretext for discrimination; and (3) that antiunion animus contributed to the decision
not to hire the applicants. If the General Counsel establishes these criteria, the burden shifts to
the employer to prove it would not have hired the applicants even in the absence of their union
activity.
15
There is no dispute that Tapia and Useda were qualified for any job openings as they had
years of experience in janitorial positions. Similarly, there is no dispute that substantial antiunion
animus was present at the time of the December 15 contract ending date. Thus, in order to show
that Respondents refused to rehire or transfer Tapia and Useda at the time of cancellation of the
55 Hawthorne-631 Howard contract and subcontract, the General Counsel must first show that 20
Respondents had concrete plans to hire or were hiring at that time.
The record does not present a clear picture in this regard. For instance, the record
indicates that in November, Jorge Cervantes, V. Ortiz’ brother, who worked at 55 Hawthorne,
was transferred to a different building, thus avoiding layoff. The record further indicates R. Ortiz 25
and his wife took over the positions at One Kearny when Mendoza and Banegas were unlawfully
discharged.79 Flores, a co-worker of Tapia and Useda at 55 Hawthorne, worked for R. Ortiz at
another subcontracted building one or two days after the layoff. Finally, the record indicates that
OJS hired a new employee, Saul Lopez (Lopez) on December 1 at 77 Geary-33 Grant and
transferred him to a new location on January 1, 2015. 30
For purposes of analysis, one may find there was at least a one- to two-day position
which was filled by Flores following termination of the 55 Hawthorne contract and subcontract
and potentially a position vacated by Lopez at 77 Gear-33 Grant on January 1, 2015. It is not
entirely clear that the transfer of Lopez from 77 Geary-33 Grant opened a position that was 35
filled. In fact, Respondent OJS employment records do not establish that it was. The other
openings all pre-date the December 15 termination date and were filled prior to that time.
Moreover, speculation that Respondent Preferred, with high turnover and approximately 100
employees, might have been able to place Useda and Tapia is rejected without evidence of an
actual job vacancy and hiring to fill the vacancy. 40
Against this backdrop, the record further fails to establish that Tapia and Useda were any
more qualified than Flores and Lopez or would have been hired instead of Flores and Lopez but

79 The record does not reflect whether Banegas performed Saturday and Sunday work at 74 New
Montgomery and One Hawthorne at the time he was discharged. If he did, these positions were
potentially available after November 19. Mendoza worked Saturdays at 74 New Montgomery until she
was discharged. Thus, this Saturday work may have become available after November 19.
JD(SF)–36–16
58
for their protected, concerted activity and Union activity. The record is devoid of any evidence
regarding the qualifications of Flores and Lopez. It is, accordingly, impossible to determine
whether Respondents failed to adhere uniformly to generally known applicant requirements, or
that any requirements were themselves pretextual or were applied as a pretext for discrimination.
Thus, due to failure to sustain the burden of proving a violation, complaint paragraph 10(d) is 5
dismissed.
CONCLUSIONS OF LAW
1. Respondents Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz 10
Janitorial Services are joint employers.
2. By the following acts and conduct, they have violated Section 8(a)(1) of the Act:
(a) Telling employees who were picketing they were not going to be working
anymore.
(b) Asking employees who were engaging in protected, concerted activity and 15
Union activity why employees were making claims against Respondents,
telling them to stop or they would be terminated, telling them they would be
sued, and telling them to be careful about going to the Union.
(c) Telling employees that their working conditions had changed because they
engaged in union activity.20
(d) Telling employees that OJS would lose or had lost the Preferred contract
because of employees’ union activity.
(e) Threatening employees to be careful with what they were doing, and asking
whether they knew what they were doing.
(f) Telling employees when giving them their final check that they were fired and 25
could no longer work because of their union activity and asking employees if
they were happy because they were fired due to their union activity.
(g) Surveilling employees’ demonstration by photographing and videoing their
activities.
(h) Stating that employees were terminated because of their union activity.30
3. By the following acts and conduct, Respondents have violated Section 8(a)(3) and
(1) of the Act.
(a) Discharging Balbina Mendoza and Joel Banegas because they assisted SEIU
Local 87 and engaged in concerted activities and to discourage employees
from engaging in these activities.35
(b) Terminating its contracts with Harvest Properties for providing janitorial
cleaning services at 55 Hawthorne and 631 Howard Street in San Francisco,
California in order to chill union activity at the remaining facilities where
Respondents held janitorial service contracts.
(c) Terminating the subcontract between Preferred and OJS for janitorial cleaning 40
services at 55 Hawthorne and 631 Howard Street in San Francisco, California
because employees assisted the Union and engaged in concerted activities and
to discourage employees from engaging in these activities and in order to chill
union activity at the remaining facilities where Preferred held janitorial
service contracts.45
(d) Based on termination of the contracts, discharging employees Carlos Cruz (C.
Cruz), Juana Cruz (J. Cruz), Flores, Franco, Tapia, Useda, and any other
JD(SF)–36–16
59
similarly situated employees because employees assisted the Union and
engaged in concerted activities and to discourage employees from engaging in
these activities.
REMEDY5
Having found that the Respondents have engaged in certain unfair labor practices,
they are ordered to cease and desist and to take certain affirmative action designed to
effectuate the policies of the Act. Specifically, as to unlawfully threatening, coercing, and
restraining employees in violation of Section 8(a)(1), it is recommended that Respondents 10
be ordered to cease and desist from that activity.
Having found that Respondents unlawfully discharged Mendoza and Banegas,
Respondents must offer them reinstatement and make them whole for any loss of
earnings and other benefits, computed on a quarterly basis from the dates of discharge to 15
the date of proper offers of reinstatements less any net interim earnings, as prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons,
283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010).
20
In addition, Respondents must compensate Mendoza and Banegas for the adverse tax
consequences, if any, of receiving a lump-sum backpay award and Respondents shall file a report
with the Regional Director for Region 20, within 21 days of the date backpay is fixed, either by
agreement or Board order, a report allocating the backpay to the appropriate calendar years.
AdoServ of New Jersey, 363 NLRB No. 143 (2016); Don Chavas, LLC d/b/a Tortillas Don 25
Chavas, 361 NLRB No. 10 (2014).
As to the unlawful discharges of C. Cruz, J. Cruz, Flores, Franco, Tapia, Useda, and any
other similarly situated employees, caused by cancellation of the 55 Hawthorne-631 Howard
contracts, the General Counsel requests that these discriminatees by reinstated. Such a remedy 30
would require restoration of the contract between Preferred and Harvest Properties and, in turn,
restoration of the subcontract between OJS and Preferred unless the evidence indicates that such
a remedy would be unduly burdensome.80 It does not. There is no evidence that these contracts
were unprofitable. There is no evidence that a substantial capital outlay, equipment, or other
investment is necessary. Accordingly, it is further recommended that Respondents be required to 35
seek restoration of their contract with current building management to provide janitorial services
at 55 Hawthorne-631 Howard and restoration of the subcontract between Preferred and OJS to
handle these properties. Respondents shall be allowed at the compliance stage of the proceedings
to provide evidence any previously unavailable evidence that the restoration remedy is unduly
burdensome.8140

80 See, e.g., We Can, Inc., 315 NLRB 170 (1994), citing Lear Siegler, Inc., 295 NLRB 857, 861
(1989).
81 Ferragon Corp., 318 NLRB 359 (1995) (employer may present previously unavailable evidence, if
any, to demonstrate that restoration remedy is unduly burdensome).
JD(SF)–36–16
60
Further, it is recommended that Respondents, having discriminatorily cancelled the
contract with Harvest Properties and the subcontract for that property between Preferred and
OJS, thus causing the discharge of employees C. Cruz, J. Cruz, Flores, Franco, Tapia, Useda, and
any other similarly situated employees, must offer them reinstatement either at 55 Howthorne-
631 Howard or at other substantially similar work locations and make them whole for any loss of 5
earnings and other benefits computed on a quarterly basis from the dates of discharge to the date
of proper offers 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, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
10
The General Counsel also seeks an order requiring that the Respondents reimburse all
unlawfully discharged employees for search-for-work and work-related expenses regardless of
whether they received interim earnings for a particular quarter. In accordance with King Soopers,
Inc., 364 NLRB No. 93 (2016), the Respondent shall compensate employees affected by the
above unlawful discharges for their search-for-work and interim employment expenses 15
regardless of whether those expenses exceed their interim earnings. Search-for-work and interim
employment expenses shall be calculated separately from taxable net backpay, with interest at
the rate prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
20
In light of the serious and pervasive nature of the unfair labor practices committed by the
Respondents, a broad cease and desist order is appropriate. Evergreen America Corp., 348
NLRB 178, 264 (2006), enfd. 531 F.3d 321 (4th Cir. 2008); Michael’s Painting, Inc., 337 NLRB
860 fn. 3 (2001), enfd. 85 Fed. Appx. 614 (9th Cir. 2004); and Hickmott Foods, 242 NLRB 1357
(1979).25
As Respondents’ employees are predominantly Spanish-speaking, it is recommended that
the Notices be in English and Spanish. Because the findings herein encompass activity at many
of Respondents’ work sites, the Notice shall be posted not only at Respondents’ offices but in all
supply or storage areas or other appropriate areas utilized by Respondents throughout the greater 30
San Francisco Bay Area.
On these findings of fact and conclusions of law and on the entire record, the following
recommended order is submitted.82
35
ORDER
The Respondents Preferred Building Services, Inc. and Rafael Ortiz d/b/a Ortiz Janitorial
Services, their officers, agents, and representatives, shall
40
1. Cease and desist from

82 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
JD(SF)–36–16
61
(a) Telling employees who were picketing they were not going to be working
anymore.
(b) Asking employees who were engaging in protected, concerted activity and
Union activity why employees were making claims against Respondents,
telling them to stop or they would be terminated, telling them they would 5
be sued, and telling them to be careful about going to the Union.
(c) Telling employees that their working conditions had changed because they
engaged in union activity.
(d) Telling employees that OJS would lose or had lost the Preferred contract
because of employees’ union activity.10
(e) Threatening employees to be careful with what they were doing, and
asking whether they knew what they were doing.
(f) Telling employees when giving them their final check that they were fired
and could no longer work because of their union activity and asking
employees if they were happy because they were fired due to their union 15
activity.
(g) Surveilling employees’ demonstration by photographing and videoing
their activities.
(h) Stating that employees were terminated because of their union activity.
(i) Discharging Balbina Mendoza and Joel Banegas because they assisted 20
SEIU Local 87 and engaged in concerted activities and to discourage
employees from engaging in these activities.
(j) Terminating its contracts with Harvest Properties for providing janitorial
cleaning services at 55 Hawthorne and 631 Howard Street in San
Francisco, California in order to chill union activity at the remaining 25
facilities where Respondents held janitorial service contracts.
(k) Terminating the subcontract between Preferred and OJS for janitorial
cleaning services at 55 Hawthorne and 631 Howard Street in San
Francisco, California because employees assisted the Union and engaged
in concerted activities and to discourage employees from engaging in 30
these activities and in order to chill union activity at the remaining
facilities where Preferred held janitorial service contracts.
(l) Based on termination of the contracts, discharging employees Carlos Cruz,
Juana Cruz, Zenayda Flores, Rosa Franco, Claudia Tapia, Yunuen Useda,
and any other similarly situated employees because employees assisted the 35
Union and engaged in concerted activities and to discourage employees
from engaging in these activities.
(m)In any other manner interfering with, restraining, or coercing employees in
the rights guaranteed to them by Section 7 of the Act.
40
2. Take the following affirmative action necessary to effectuate the policies of
the Act.
(a) Within 14 days from the date of this Order, offer Joel Banegas, Carlos
Cruz, Juana Cruz, Zenayda Flores, Rosa Franco, Balbina Mendoza, 45
Claudia Tapia, Yunuen Useda, and any other similarly situated employees
full reinstatement to their former jobs or if those jobs no longer exist, to
JD(SF)–36–16
62
substantially equivalent positions, without prejudice to their seniority or
any other rights or privileges previously enjoyed and make them whole for
any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy section
of this decision.5
(b) Within 14 days from the date of this Order, remove from its files any
reference to the unlawful actions against these employees and within 3
days thereafter, notify them in writing that this has been done and that the
discharges will not be used against them in any way.
(c) Preserve and, within 14 days of a request, or such additional time as the 10
Regional Director may allow for good cause shown, provide at a
reasonable place designated by the Board or its agents, all payroll records,
social security payment records, timecards, personnel records and reports,
and all other records, including electronic copy of such records if stored in
electronic form, necessary to analyze the amount of backpay due under the 15
terms of this Order.
(d) Within 14 days after service by the Region, post at their facilities in the
greater San Francisco California Bay Area, copies of the attached notice
marked “Appendix.”83 Copies of the notice, on forms provided by the
Regional Director for Region 20, after being signed by the Respondents’ 20
authorized representative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to ensure that the
notices are not altered, defaced, or covered by any other material. In the 25
event that, during the pendency of these proceeding, the Respondents have
gone out of business or closed any operations involved in these
proceedings, or sold the business or facilities involved herein, the
Respondents shall duplicate and mail at their own expense, a copy of the
notice to all current employees and former employees employed by the 30
Respondents at any time since October 29, 2014.
(e) Within 21 days after service by the Region, file with the Regional Director
a sworn certification of a responsible official on a form provided by the
Region attesting to the steps that the Respondents have taken to comply.
35

83 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 National Labor Relations Board” shall read “Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor
Relations Board.”
IT IS FURTHER ORDERED
the Act not specifically found.
Dated, Washington D.C. September 9, 20165
10
63
that the complaint is dismissed insofar as it alleges violations of
____________________
Mary Miller Cracraft
Administrative Law Judge
JD(SF)–36–16
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 violated 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 benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT discharge you because you engage in concerted actions such as picketing for
better wages and working conditions or seeking assistance from the San Francisco Living Wage
Coalition or Service Employees International Union Local 87.
WE WILL NOT terminate janitorial contracts because you engaged in concerted activities or in
order to chill union activity at other facilities where we have janitorial contracts.
WE WILL NOT restrain or coerce your Section 7 rights by telling employees who were
picketing they were not going to be working anymore; asking employees who were
engaging in protected, concerted activity and Union activity why employees were making
claims against Respondents; telling them to stop or they would be terminated; telling
them they would be sued and telling them to be careful about going to the Union; telling
employees that their working conditions had changed because they engaged in union
activity; telling employees that Ortiz Janitorial Services would lose or had lost the
Preferred Building Services, Inc. contract because of employees’ Union activity;
threatening employees to be careful with what they were doing by demonstrating and
asking whether they knew what they were doing; telling employees when giving them
their final check that they were fired and could no longer work because of their Union
activity and asking employees if they were happy because they were fired due to their
Union activity; surveilling employees’ demonstration by photographing and videoing
their activities; stating that employees were terminated because of their union activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of
your rights guaranteed by Section 7 of the Act.
WE WILL compensate Joel Banegas, Carlos Cruz, Juana Cruz, Zenayda Flores, Rosa Franco,
Balbina Mendoza, Claudia Tapia, Yunuen Useda, and any other similarly situated employee for
JD(SF)–36–16
any loss of earnings and other benefits suffered as a result of the discrimination against them,
less any net interim earnings plus interest.
WE WILL compensate Joel Banegas, Carlos Cruz, Juana Cruz, Zenayda Flores, Rosa Franco,
Balbina Mendoza, Claudia Tapia, Yunuen Useda, or any other similarly situated employee for
any adverse income tax consequences of receiving a lump-sum backpay award and WE WILL
file with the Regional Director for Region 20, within 21 days of the date the amount of backpay
is fixed, either by agreement or Board order, a report allocating the backpay award to the
appropriate calendar year(s).
WE WILL compensate Joel Banegas, Carlos Cruz, Juana Cruz, Zenayda Flores, Rosa Franco,
Balbina Mendoza, Claudia Tapia, Yunuen Useda, and other similarly situated employees for
search-for-work and interim employment expenses regardless of whether those expenses exceed
their interim earnings.
WE WILL within 14 days from the date of the Board’s Order, remove from our files any
reference to the discharges of Joel Banegas, Carlos Cruz, Juana Cruz, Zenayda Flores, Rosa
Franco, Balbina Mendoza, Claudia Tapia, Yunuen Useda, or any other similarly situated
employee and WE WILL within 3 days thereafter, notify them in writing that this has been done
and this discharge will not be used against them in any way.
PREFERRED BUILDING SERVICES, INC.
(Employer)
Dated By
(Representative) (Title)
RAFAEL ORTIZ d/b/a ORTIZ JANITORIAL
SERVICES.
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130
JD(SF)–36–16
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CA-149353 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, 415-356-5139.