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

National Labor Relations Board - Board Decisions

Aug 28, 2018

366 NLRB No. 159 (N.L.R.B. 2018)

366 NLRB No. 159
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive Sec-
retary, National Labor Relations Board, Washington, D.C. 20570, of any ty-
pographical or other formal errors so that corrections can be included in the
bound volumes.
Preferred Building Services, Inc. and Rafael Ortiz
d/b/a Ortiz Janitorial Services, Joint Employers
and Service Employees International Union Lo-
cal 87. Case 20–CA–149353
August 28, 2018
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN
AND EMANUEL
On September 9, 2016, Administrative Law Judge
Mary Miller Cracraft issued the attached decision. Re-
spondents Preferred Building Services, Inc. (Preferred)
and Rafael Ortiz d/b/a Ortiz Janitorial Services (OJS)
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondents
filed a reply brief. The General Counsel also filed excep-
tions and a supporting brief, the Respondents filed an
answering brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions1
only to the extent consistent with this Decision and Or-
der.2
This case arises in the context of picketing activity by
employees of OJS, who perform janitorial services pur-
suant to subcontracts between OJS and Preferred. The
judge found that Preferred jointly employs these employ-
ees. She further found that the Respondents committed
several of the unfair labor practices alleged in the com-
plaint, all of which occurred in reaction to the employ-

1 We have amended the judge’s conclusions of law and modified the
judge’s recommended Order consistent with our findings herein.
2 The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings. In addition, the Respondents contend
that the judge’s rulings, findings, and conclusions demonstrate bias and
prejudice. On careful examination of the judge’s decision and the
entire record, we are satisfied that the Respondents’ contentions are
without merit.
No exceptions were filed to the judge’s dismissal of the complaint
allegation that on October 29, 2014, the Respondents engaged in sur-
veillance, or her dismissal of additional 8(a)(1) allegations that the
General Counsel moved to add to the complaint at the end of the hear-
ing.
ees’ picketing activity, including cancelling contracts and
discharging, threatening, interrogating, and surveilling
the employees. In doing so, the judge rejected the Re-
spondents’ affirmative defense that the employees lost
the protection of the National Labor Relations Act (the
Act) because they engaged in picketing with a secondary
object prohibited by Section 8(b)(4)(ii)(B).3 For the rea-
sons discussed below, we find merit in the Respondents’
defense, and thus the Respondents’ reaction to the em-
ployees’ unprotected picketing did not violate the Act.
Accordingly, we dismiss the complaint in its entirety.
I. FACTS
As more fully recounted in the judge’s decision, Pre-
ferred contracts with building management companies in
the San Francisco Bay Area to provide janitorial ser-
vices. Preferred fulfills the contracts by either providing
its own labor or subcontracting the work to one of 22
subcontractors. Lauren Squeri is an account manager at
Preferred.
During the fall of 2014,4 Preferred contracted with
building management company Harvest Properties to
service a building located at 55 Hawthorne Street. Pre-
ferred, in turn, subcontracted its work cleaning the offic-
es of building tenants at 55 Hawthorne Street, including
KGO Radio and Cumulus Media, to OJS, one of Pre-
ferred’s regular subcontractors.
OJS, which is owned by Rafael Ortiz, employed Bal-
bina Mendoza, Joel Banegas, Yunuen Useda, and Clau-
dia Tapia, among others, as janitors at 55 Hawthorne
Street and other locations. At various times that fall,
these four employees complained about their working
conditions to Olga Miranda, president of the Service
Employees International Union Local 87 (Union), and to
Karl Kramer and David Frias, directors of the San Fran-
cisco Living Wage Coalition (SFLWC).
To publicize their complaints, Mendoza, Banegas,
Useda, and Kramer picketed in front of 55 Hawthorne
Street on October 29.5 The picketers marched in front of
the lobby chanting slogans like, “up with the union,
down with exploitation.” They carried signs, some of
which displayed the Union’s name and some of which
variously stated, “PREFERRED BUILDING SERVICES

3 The judge also rejected the Respondents’ affirmative defenses that
the employees’ picketing was unprotected, either because the picketing
had a recognitional object prohibited by Sec. 8(b)(7)(C) or because the
picketers made defamatory statements, and that the “unclean hands”
doctrine prohibited the Union from prosecuting this case. Given our
findings below, we need not pass on these additional defenses. We also
find no need to pass on the issue whether Preferred is a joint employer
of the OJS employees.
4 Unless otherwise noted, all dates are in 2014.
5 Miranda and Tapia did not participate in this picketing; it is un-
clear whether Frias participated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
UNFAIR!” and “WE PREFER NO MORE SEXUAL
HARASSMENT.”6 The picketers also distributed leaf-
lets, which stated in relevant part:
Who Needs a Minimum Wage Increase?
We do.
We work for Preferred Building Services which cleans
the offices of KGO radio. We get paid the San Francis-
co minimum wage of $10.74 per hour. We endure abu-
sive and unsafe working conditions and sexual harass-
ment. 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 addi-
tional hours would need to include sexual favors. The
company does not provide paid sick days that are re-
quired by San Francisco law or pay medical bills for in-
juries on the job as required by workers compensation.
We are calling on KGO radio to take corporate respon-
sibility in ensuring that their janitors receive higher
wages, dignity on the job, respect, their rights to sick
pay and workers compensation, and full legal protec-
tions against sexual harassment and retaliation for as-
serting their rights.
Vote yes on Prop J on Nov. 4 to raise the city minimum
wage.
Join us for a picket line outside the offices of KGO ra-
dio.
Neither OJS nor Harvest Properties was mentioned by
name on the signs or leaflets. However, the leaflet’s ref-
erence to a “foreman” appears from the record to be a
reference to Ortiz.
Though not recounted by the judge, the uncontradicted
record evidence establishes that, a few days after the
picketing concluded, Miranda met with Banegas, Men-
doza, and Useda to discuss the “reactions and responses”
of the tenants at 55 Hawthorne Street. The picketers
reported that the tenants were “upset by what they had
learned.”7

6 Some signs stated in small print at the bottom: “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.” At the hearing, the judge observed that,
although she used a “pretty powerful magnifier” to view these words on
a photograph of the signs, it was possible that a passing pedestrian
might have been able to read them.
7 This in fact appeared to be the case. In response to the picketing,
KGO at some point asked Harvest to ensure that certain of KGO’s
rooms not be cleaned by Preferred employees. KGO told Harvest that
On November 19, employees Mendoza, Banegas,
Useda, and Tapia, in addition to SFLWC Directors Kra-
mer and Frias and Union President Miranda, picketed in
front of 55 Hawthorne Street. While marching in front
of the building, the picketers carried signs, distributed
leaflets, and chanted slogans similar to those used on
October 29.8
Though not recounted by the judge, the uncontradicted
record evidence establishes that, at some point that day,
Miranda, Kramer, Mendoza, Useda, and Tapia had a
meeting with Harvest Property Manager Benjamin Max-
on.9 According to Maxon, Miranda and Kramer told him
“they were going to keep showing up until we made
changes, more specifically to the wage.” They also com-
plained about poor working conditions. Further, Miran-
da testified that she told Maxon “we were picketing out-
side and it just seemed inappropriate that [Ortiz] was still
here, knowing what they knew since October.” During
this conversation, Maxon announced that Harvest intend-
ed to substitute a unionized contractor for Preferred. In
his testimony, Maxon characterized the reaction of those
who attended the meeting as “happy.”
That day, SFLWC Director Frias also filmed a video
entitled: “It’s Time for a Living Wage.” At one point,
the video displayed a handful of picketers in the building
lobby along with a caption stating: “Inside the lobby of
55 Hawthorne Bldg to speak to the building manager on
behalf of the janitors who work there.” The video later
showed employee Useda announcing to the picketers
outside that “it seems to me that the negotiations . . .
were successful and we gained a victory . . . the person
that we wanted to leave it seems has been let go. What I
like most is that Lauren [Squeri] from Preferred was pre-
sent and saw that we’re not playing . . . I’m very pleased
to see . . . the support that the union has brought out
. . . .” At another point in the video, employee Mendoza
stated, “[W]e are here to get results from what[’]s been
happening to us with our supervisor . . . . [W]e spoke
with the building manager and he suspended our em-
ployer and promised there will be changes and respect
for us.” The video aired on local television and was
posted on SFLWC’s YouTube page.
Concerned about the picketers’ allegations, Maxon
provided Preferred a copy of the leaflet and requested

it had sensitive documents and wanted to be “extra cautious,” given that
the leaflets “directly labeled” KGO.
8 Among the differences, the leaflets here called “on KGO radio and
Cumulus Media as the major tenant[s] to help in getting Preferred
Building Services to listen to [the employees’] demands and not ignore
[them],” and the signs and leaflets here did not seek support for the city
minimum wage initiative.
9 The record suggests that Preferred Account Manager Squeri was
also present.
PREFERRED BUILDING SERVICES 3
that it conduct an investigation.10 He also told Preferred
that, until the investigation was completed, Ortiz was not
to enter the premises. Instead of conducting an investi-
gation, however, Preferred gave Maxon notice of its in-
tent to cancel the cleaning contract with Harvest, effec-
tive the following month. Preferred also notified OJS
that it intended to cancel their corresponding subcontract.
Ortiz discharged Mendoza and Banegas when they re-
ported for work that evening. The contract between Pre-
ferred and Harvest, and the subcontract between Pre-
ferred and OJS, ended in mid-December, sometime be-
fore December 18. Useda and Tapia, among other em-
ployees, were discharged as a result. Harvest replaced
Preferred with a unionized contractor.11
II. JUDGE’S DECISION
The Respondents argued at the hearing that the em-
ployees engaged in secondary picketing prohibited by
Section 8(b)(4)(ii)(B), which caused them to lose the
protection of the Act. Citing National Packing Co. v.
NLRB, 352 F.2d 482 (10th Cir. 1965), the Respondents
further argued that the unprotected nature of the employ-
ees’ picketing was a complete defense to the unfair labor
practice allegations in the complaint.
During the hearing, the judge limited the Respondents’
right to question the General Counsel’s witnesses regard-
ing this affirmative defense, explaining that the Re-
spondents could recall the witnesses during their case-in-
chief and/or make proffers. Before the Respondents pre-
sented their case-in-chief, however, the judge issued a
written order rejecting the affirmative defense and pre-
cluding further evidence in support.12 She determined
that she was not bound by the Tenth Circuit’s holding in
National Packing.
Despite having rejected the Respondents’ affirmative
defense during the hearing, the judge acknowledged in
her decision that “[c]ertainly there are circumstances in
which an employer may lawfully discharge an employee
for participating in an unlawful strike.” On the merits,
she found that the picketers did not engage in picketing
prohibited by Section 8(b)(4)(ii)(B) because, although
they engaged in coercive picketing,13 they did not have a
prohibited secondary object. She found that the picket-
ing complied with the four criteria set forth in Sailors’

10 The judge credited Maxon’s testimony that he sought the investi-
gation on his own volition.
11 Additional picketing activity occurred at other locations on and af-
ter December 18. As these pickets took place after the Respondents
committed the alleged unfair labor practices, we need not discuss them.
12 The judge refused to admit evidence regarding, among other
things, why the leaflets were drafted as they were and whether the
picketers blocked access to the building.
13 No party excepts to this finding.
Union of the Pacific (Moore Dry Dock Co.), 92 NLRB
547 (1950),14 in particular because the signs clearly la-
beled Preferred as the primary employer, which she
found to be a joint employer with OJS.15 Further, the
judge found no independent evidence of a prohibited
secondary object.16
Having rejected the Respondents’ secondary picketing
defense on the merits, the judge went on to find many of
the violations alleged against the Respondents.
III. ANALYSIS
A. The Judge Prematurely Rejected the
Affirmative Defense
We find that the judge erred by rejecting the Respond-
ents’ defense at the time it was raised and further erred
by preventing the Respondents from presenting evidence
concerning it.
In National Packing, the Tenth Circuit found that the
Board failed to consider the employer’s defense that the
alleged discriminatees lost the protection of the Act by
engaging in picketing prohibited by Section 8(b)(7)(B).
If they lost protection, the court explained, the employees
“should not be able to use the Act to compel reinstate-
ment.” 352 F.2d at 485. On remand, the Board deter-
mined that the employees’ picketing lacked a prohibited
object, and thus that it did not need to address the scenar-
io presented by the court. 158 NLRB 1680, 1683, 1685–
1687 (1966), enf. denied 377 F.2d 800 (10th Cir. 1967).
In subsequent cases, however, where Section 8(a)(1) and
(3) complaint allegations were premised on an employ-
er’s response to employee picketing, the Board has held
that those allegations must be dismissed where it deter-
mines that the employees had engaged in unprotected
picketing. See, e.g., Martel Construction, 302 NLRB
522, 522 (1991) (remanding to judge to consider em-
ployer’s Section 8(b)(4) secondary picketing defense on
the ground that, if the defense had merit, “not all ele-
ments of the alleged 8(a)(1) and (3) violations would

14 The four criteria are: (a) the picketing is strictly limited to times
when the situs of the dispute is located on the secondary employer’s
premises; (b) at the time of the picketing the primary employer is en-
gaged in its normal business at the situs; (c) the picketing is limited to
places reasonably close to the situs; and (d) the picketing discloses
clearly that the dispute is with the primary employer.
15 The judge explained that the “only evidence of record remotely
relevant” was the leaflet’s request that KGO Radio assist the janitors in
obtaining better working conditions, but she noted that the signs’ dis-
claimer disavowed that the picketing had any secondary object.
At times, the judge misstated that the picket signs also referred to
KGO.
16 According to the judge, there was no evidence that the picketers
asked Harvest, a secondary employer, to end its contract with Preferred
or for any other action as a quid pro quo for removal of the pickets.
She thus found that the pickets were, in effect, little more than informa-
tional in nature.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
have been established”), after remand 311 NLRB 921
(1993), enfd. mem. 35 F.3d 571 (9th Cir. 1994); Rapid
Armored Truck Corp., 281 NLRB 371, 382 (1986) (hold-
ing that because employees engaged in proscribed picket-
ing, “it follows that the additional alleged unfair labor
practices of [r]espondent, all of which occurred as a re-
sult of the illegal picketing, and without which the al-
leged unfair labor practices would not have occurred . . .
must be dismissed”).17
The principles from those cases apply here. Accord-
ingly, we find that the judge erred by rejecting the Re-
spondents’ secondary picketing defense and restricting
their ability to present evidence relevant to that defense.
B. The Judge Erroneously Rejected the Affirmative De-
fense on the Merits
Despite the judge’s error in limiting the Respondents’
ability to litigate their defense, we find that the evidence
in the record is nonetheless sufficient to establish that the
employees engaged in conduct prohibited by Section
8(b)(4)(ii)(B). In relevant part, Section 8(b)(4)(ii)(B)
prohibits threatening or coercive conduct that has an ob-
ject to force a secondary employer—a neutral—to cease
doing business with a primary employer, i.e., the em-
ployer with whom a labor dispute exists. See, e.g., Food
& Commercial Workers Local 1996 (Visiting Nurse
Health System), 336 NLRB 421, 426–428 (2001). In
NLRB v. International Union of Operating Engineers
Local 825, (Burns and Roe, Inc.), 400 U.S. 297, 304
(1971), the Supreme Court acknowledged that “[s]ome
disruption of business relationships is the necessary con-
sequence of the purest form of primary activity.” How-
ever, the Court found that the “clear implication” of the
picketers’ demands in that case was to require the sec-
ondary employer to either force a change in the primary
employer’s policy of not assigning work to the Operating
Engineers or to terminate the primary employer’s sub-
contract. Id. at 305. The Court explained that to find
these “most serious disruptive effects” lawful would be
“largely to ignore the original congressional concern.”
Id.
The Board has found that, in cases involving multiple
employers at a common situs, there is a strong rebuttable
presumption that picketing is unlawful if it fails to com-
ply with the Moore Dry Dock criteria. See Service Em-
ployees Local 87 (Trinity Maintenance), 312 NLRB 715,
744 (1993), enfd. 103 F.3d 139 (9th Cir. 1996). Howev-

17 When judging an employer’s defense that an employee engaged in
prohibited picketing, the Board considers whether the individual em-
ployees (as opposed to the union) engaged in prohibited conduct. E.g.,
Brown & Root USA, Inc., 319 NLRB 1009, 1009 & fn. 5, 1112 (1995)
(finding refusal to consider and hire unlawful where employees did not
engage in unprotected activity and employer did not rely on it).
er, even if picketing complies with those criteria, it will
still be found unlawful if there is independent evidence
that it had the secondary object prohibited by Section
8(b)(4(ii)(B). Teamsters Local 560 (County Concrete
Corp.), 360 NLRB 1067, 1067–1068 (2014). To make
that determination, the Board examines the picketers’
“entire course of conduct.” Id. at 1068.
We find, contrary to the judge, that the picketing at is-
sue in this case did not meet the Moore Dry Dock criteria
because it failed to clearly disclose that the dispute was
with the Respondents.18 It is true that the picket signs
named Preferred. However, the leaflets distributed on
October 29 requested that KGO ensure that “their” jani-
tors obtain better working conditions. By this language,
the picketers led the public to believe that KGO—who
was not involved in the dispute—was their employer and
had the ability to adjust their working conditions.19
Even assuming arguendo that the picketing complied
with the Moore Dry Dock criteria, we find, contrary to
the judge, that there is independent evidence that an ob-
ject of the picketing was impermissible. As we explain
below, the picketing was intended to “serious[ly] dis-
rupt[]” the business relationship between the Respond-
ents and secondary employer Harvest. See Burns and
Roe, 400 U.S. at 305.
Significantly, at their meeting with Harvest Property
Manager Maxon on November 19, the picketers demand-
ed changes to working conditions that Maxon, as Har-
vest’s property manager, was uniquely positioned to ef-
fectuate. Union President Miranda told Maxon it was
“inappropriate” that Ortiz was still working there. Mi-
randa and SFLWC Director Kramer ratcheted up the

18 As previously stated, we find it unnecessary to pass on the judge’s
finding that Preferred is a joint employer of OJS’s employees. If the
Respondents are not joint employers, the picketers plainly manifested a
prohibited object, as they were employed only by OJS but targeted
Preferred (among others). See Trinity Maintenance, 312 NLRB at 753
fn. 113. Assuming arguendo they are joint employers, however, the
picketing still had a prohibited secondary object for the reasons dis-
cussed below.
19 The leaflets distributed on November 19 did not claim that KGO
employed the picketers. However, those leaflets requested that KGO
and Cumulus, as the “major” building tenants, encourage Preferred to
meet the picketers’ demands.
The judge noted that the disclaimer in small print on the picket signs
disavowed that the picketing had any secondary intent. In the event
that pedestrians were able to read the disclaimer, it does not provide a
safe harbor given the independent evidence of a secondary object. Cf.
County Concrete Corp., 360 NLRB at 1070 (finding a Sec.
8(b)(4)(ii)(B) violation where independent evidence of a secondary
object contradicted the union’s letter to employers stating that it had
only a primary object); Minneapolis Building & Construction Trades
Council, 229 NLRB 98, 103–104 (1977) (finding Sec. 8(b)(7)(A) and
(C) violations where independent evidence of an organizational, recog-
nitional, or bargaining object contradicted the unions’ disclaimer of
such an object).
PREFERRED BUILDING SERVICES 5
picketers’ pressure on Maxon when they warned him that
they would “keep showing up until [Maxon] made
changes” to employees’ wages. In the SFLWC video
filmed that same day, employee Useda confirmed the
picketers’ intent to pressure Maxon to initiate change to
settle their dispute with the Respondents. Useda an-
nounced to her fellow picketers that it was their “negotia-
tions” that pressured Maxon to suspend Ortiz. Useda
plainly believed that these negotiations would affect
Harvest’s relationship with Preferred: she told the pick-
eters that what she “like[d] most” was that Preferred Ac-
count Manager Squeri “was present and saw that we’re
not playing.” Employee Mendoza further confirmed the
picketers’ focus on pressuring Maxon to initiate change.
In the video, Mendoza reported that the picketers “spoke
with the building manager and he suspended our em-
ployer and promised there will be changes” (emphasis
added). Maxon recalled the picketers’ “happy” reaction
when he said he was searching for a unionized contrac-
tor. Indeed, when Preferred cancelled its contract with
Harvest, Maxon hired a unionized contractor. That Pre-
ferred, not Harvest, cancelled the contract is irrelevant in
these circumstances. The fact remains that an object of
the picketers was to pressure Harvest, a neutral employ-
er, to cease doing business with Preferred unless it in-
creased wages for janitorial employees working in that
building and removed Ortiz.20
Finally, employees’ reports to Miranda that neutral
tenants were “upset” further supports our finding that the
picketers had a prohibited secondary object. See Service
Employees Local 525 (General Maintenance Co.), 329
NLRB 638, 665, 680 (1999) (in finding secondary ob-
ject, relying on union agent’s comments on radio broad-
cast that neutral tenants were “upset” and “sympathetic”
about the picketing and asked the building owner to set-
tle the dispute), enfd. mem. 52 Fed. Appx. 357 (9th Cir.
2002).
In light of our finding that the picketers lost the protec-
tion of the Act, we further find that the complaint must
be dismissed in its entirety because all the complaint
allegations involve the Respondents’ reactions to that
unprotected picketing. See Martel Construction, 302

20 To the extent the judge and General Counsel contend that this was
informational activity protected by Sec. 8(b)(4)’s publicity proviso, we
disagree. The picketing activity here plainly does not implicate that
proviso. Sec. 8(b)(4) protects, under certain circumstances, truthful
publicity, other than picketing, that products are made by a primary
employer and are distributed by another employer. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Building & Construction
Trades Council, 485 U.S. 568, 582 (1988); Painters District Council 9
(We’re Associates), 329 NLRB 140, 143 (1999) (union’s reliance on
the Sec. 8(b)(4) publicity proviso “misplaced” where its activities in-
cluded picketing).
NLRB at 522; Rapid Armored Truck Corp., 281 NLRB
at 382.21
AMENDED CONCLUSIONS OF LAW
1. The Respondents are employers engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Service Employees International Union Local 87
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondents did not violate Section 8(a)(1)
and Section 8(a)(3) and (1) of the Act as alleged in the
complaint.
ORDER
The complaint is dismissed.
Dated, Washington, D.C. August 28, 2018
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
______________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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. Re-
spondent Preferred Building Services, Inc. (Preferred) and its
subcontractor Respondent Ortiz Janitorial Services (OJS) pro-

21 In reaching this conclusion, we certainly do not condone the ab-
horrent conduct in which the picketers alleged Ortiz engaged, and we
fully recognize that employees chose to picket, at least in part, to pro-
test this alleged misconduct. As explained above, however, the Act
prohibits picketing that has an object of forcing a secondary employ-
er—i.e., a neutral employer, such as Harvest—to cease doing business
with the primary employer. The only question before us is whether the
picketers’ actions were protected by the Act, and we find that they were
not. For the reasons explained above, those actions crossed the line that
separates lawful primary picketing from unlawful secondary picketing.
As the Agency charged with enforcing the Act, we cannot excuse this
conduct, regardless of our genuine concern for the employees’ plight.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
vide 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 remain-
ing contract locations, Respondents violated Section 8(a)(3)
and (1) of the Act by terminating a contract and a subcontract
for janitorial services.
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.
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 Fran-
cisco, California. OJS is a sole proprietorship owned by Rafael
Ortiz (R. Ortiz) with an 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

1 The underlying unfair labor practice charge and the first and sec-
ond 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 re-
view 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 ex-
cess of $50,000 directly to customers located outside the State of Cali-
fornia. Ortiz admits it provided services in excess of $50,000 to Pre-
ferred 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
. . . .”
this controversy pursuant to Section 10(a) of the Act.6
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 organ-
ization 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.
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,
;lkher/his demeanor, the weight of the respective evidence,
established or admitted facts, inherent probabilities, and rea-
sonable inferences drawn from the record as a whole.” Double
D. Construction Group, Inc., 339 NLRB 303, 305 (2003). Sec-
ond, it is quite common to believe some but not all of a wit-
ness’ 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 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 em-
ployer's interests has inherent reliability). Finally, when a wit-
ness testifies in contradiction to a prior sworn statement or with
additional evidence not contained in a prior sworn statement,
all the relevant facts and circumstances on the record as a
whole will be considered in determining the credibility of tes-
timony at the hearing.
After consideration of their demeanors, established or admit-
ted facts, and inherent probabilities, it is generally found that
Yunuen Useda (Useda), Balbina Mendoza (Mendoza), 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 testimony in an unre-
hearsed but authoritative manner. R. Ortiz and his wife Veroni-
ca (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

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.”
PREFERRED BUILDING SERVICES 7
the testimony of Useda, Mendoza, Banegas, Tapia or Franco,
their testimony is generally discredited. Specific credibility
resolutions are below.
D. Alleged Joint Employer Status
1. Background
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 execu-
tive vice president is Pete Dellanini (P. Dellanini). R. Squeri is
the CFO. These individuals manage the business with assis-
tance 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 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’
wife, V. Ortiz, is a supervisor or agent of OJS. The Contra Cos-
ta 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 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 Pre-
ferred, employee Useda recalled that in a conversation in No-
vember 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 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 Act.10

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.
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, re-
ward 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 ap-
parent authority to make certain statements, this will be addressed
below.
2. Contractual relationships
In early 2014, Preferred employed around 100 individuals,
90 percent of them as janitors.11 Preferred has service contracts
throughout the Bay area. Some of the service contracts are en-
tered into between the building owner and Preferred. Others are
between Preferred and a building management company. Pre-
ferred fulfills these service contracts either using its own em-
ployees or by subcontracting. Preferred had 22 subcontractors
in early 2014. When it subcontracts the work, Preferred remains
contractually responsible for the performance of its contract
with the Preferred client—either the building owner or a build-
ing 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 shared office space, tools or
equipment. Preferred has “buying power” and maintains a sup-
plier 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 Estate Services Service Agree-
ment—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 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.
R. Ortiz became an employee of Preferred in 2001. He ini-
tially 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 insur-
ance.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 ac-

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.
12 R. Ortiz applied for his business license in March 2012.
13 R. Ortiz obtained a commercial general liability policy with work-
ers compensation and employer’s liability coverage dated January
2014.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
counts or accounting records. This testimony is undisputed and
credited.
R. Ortiz procured equipment such as mops, brooms, and
vacuums as well as cleaning supplies. He also purchased uni-
form 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 Preferred’s profit. Even
with this mark up, the prices offered by Preferred were compet-
itive, 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
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 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 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 relation-
ship as follows:
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 re-
sponsibility for and control over the manner and means of
performing the SERVICES in conformance with all legal,
governmental and regulatory requirements. [Preferred] is in-
terested 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 fol-
lowing conditions required by [Preferred]:
. . . .
Profit or Loss. The potential for profitability and the risk of
loss resulting from [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 liabil-
ity for any losses suffered by [OJS]. [Preferrred] may, in its
sole discretion, from time to time offer [OJS] new job as-
signments. [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 disburse-
ments, including, but not 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 li-
able therefor.
. . . .
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 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.
“OJS REPRESENTATIVES,” a subcontract term, refers to
OJS employees, agents, servants, contract workers and repre-
sentatives.” The subcontract provides that OJS “has sole discre-
tion 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 set-
ting of wages, hours and working conditions and the adjustment
of grievances.” Preferred does not supervise OJS and does not
exercise any disciplinary authority or control over OJS employ-
ees.14 OJS agrees to indemnify Preferred for any claims regard-
ing wages, salaries, expenses, or any other form of compensa-
tion.
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 griev-
ances.” 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, workers’ compensation, the Service Contract
Act of 1965, nondiscrimination laws, and work authorization
status.
According to the subcontract, OJS is responsible for provid-
ing all equipment, materials, and supplies at its own expense. In
practice, Preferred sells most equipment, materials and 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.
A separate appendix for each subcontract provided a descrip-
tion of the services to be performed by the subcontractor and

14 This statement amalgamates provisions in two separate portions of
the subcontract, Secs. 3(e) and 4(c).
PREFERRED BUILDING SERVICES 9
specified the supplies, materials, and equipment to be furnished
by the subcontractor. For instance on November 16, 2012, Pre-
ferred 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 exe-
cuted on November 1 between Preferred and OJS for 631 How-
ard. 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.
R. Ortiz agreed that he simply signed the Appendix A sub-
contracts 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 speci-
fied cleaning services and as a subcontractor, he must follow
those terms as set out in the janitorial specifications. OJS also
submits monthly invoices to Preferred for extra work per-
formed. When Preferred pays OJS, it sends a list of all the jobs
he has performed itemizing each payment. L. Squeri is OJS’
account manager.
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 (Max-
on) was their property manager. OJS continued to perform
pursuant to the subcontract with Preferred after Harvest Proper-
ties assumed management.
3. Hiring, firing, and discipline
According to R. Ortiz, Preferred did not refer any applicants
for employment to OJS. Preferred conducts its own background
checks for its direct janitorial employees. It does not conduct
background checks on its subcontractors’ employees. This tes-
timony is uncontested by any other record testimony and is
credited.
R. Squeri testified that Preferred does not give feedback or
direction to its subcontractors regarding employment or per-
sonnel matters. R. Ortiz has never consulted with R. Squeri
regarding employee issues. Preferred does not advise its sub-
contractors like OJS on who or how long to schedule employ-
ees. 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.
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 Pre-
ferred has never been involved in disciplining or counseling
subcontractor employees. “Employment Responsibilities,” in
Preferred’s subcontract with OJS, provides that OJS has sole
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, Mendoza, and Banegas belie P. Del-
lanini’s assertion. Thus, P. Dellanini’s general testimony that
Preferred played no part in OJS’ selection, hiring, firing, disci-
plining 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 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. 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.”
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 misun-
derstanding. In an email dated July 23, 2014, L. Squeri wrote to
the property manager,
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 noth-
ing be removed from the work place without my authoriza-
tion. However, given the 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 imme-
diate termination . . . no questions asked.
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 conclu-
sion. That is, that Useda should be removed from the building
after taking the backpack.
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. Squeri con-

15 On direct examination, Useda testified that R. Ortiz fired her. On
cross-examination, she agreed that she had been suspended for one
week.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
veyed 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
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 events.
She was forthright and consistent on direct and cross. Her tes-
timony 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 state-
ments attributed to R. Ortiz, is credited.
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
believable testimony that she was told that L. Squeri made the
decision to reinstate her is 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 comput-
er.” Apparently Mendoza’s son, who accompanied her to work
on that occasion, was the individual who had used the comput-
er. 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,
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 in-
dividuals into the building, so this does not happen again.
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 ex-
plained that the building management at 55 Hawthorne knew
that a subcontractor cleaned their building. Nevertheless, L.
Squeri explained, “even though they did know that the sub-
contractor, 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.”
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 con-
versations. 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 janitor.” Accordingly, with regard to
this unauthorized guest/computer incident, it is found that Pre-
ferred 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
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 Mendo-
za’s duties to her. Due to a BART strike, Mendoza gave up this
job within a month. Mendoza’s testimony that L. Squeri was
involved in rehiring her and explaining her duties to her is cred-
ited. 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 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 for the first month. Mendo-
za’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.
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 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.
Consistent with P. Dellanini’s testimony, there is no evi-
dence 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 equip-
ment. There is no evidence of shared bank accounts, accounting
records, employee handbooks, or other written employment
policies. There is no evidence that Preferred has input into OJS’
PREFERRED BUILDING SERVICES 11
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 different
picture regarding Preferred instructing and directing OJS em-
ployees 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 oppor-
tunity there and they arrived at a verbal agreement after she
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 em-
ployees to handle the job.16
R. Ortiz denied that he ever referred to L. Squeri as a super-
visor. 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, 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 com-
plaints 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 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.
Mendoza reported to R. Ortiz, who initially introduced him-
self 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 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 em-
ployee supervision, direction of work and hours by OJS. Ra-
ther, these facts support a finding that Preferred was involved in
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

16 At hearing, Respondent Preferred objected to use of R. Ortiz’ dep-
osition testimony because Preferred was not allowed to be present at
the deposition. Apparently, according to counsel for the General Coun-
sel, when alleged joint employers do not admit that they are joint em-
ployers, the General Counsel’s policy is to not allow representatives of
the alleged joint employer to be present during investigation of wit-
nesses 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.
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.
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. 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 ten-
ants moving out and 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 em-
ployee hours.
Useda’s testimony that R. Ortiz told her that L. Squeri told
him to reduce hours of work is credited. Both P. Dellanini and
R. Ortiz testified about this matter in general while Useda re-
called 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.
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 re-
called this reduction in hours and attributed the reduction to
space becoming vacant. Banegas’ testimony is credited. Bane-
gas testified over a period of two days in a convincing and con-
sistent manner with a highly credible demeanor. He readily
admitted when he could not recall specific dates. As to the re-
duction in hours, Banegas’ testimony that R. Ortiz stated that L.
Squeri told him to reduce hours is credited. Thus, it is conclud-
ed that Preferred was involved in setting the hours of OJS jani-
tor Banegas.
Similar to her prior placement at 55 Hawthorne, after she be-
gan working at One Kearny, 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 stat-
ing what time she finished her shift so he could tell L. Squeri.
This testimony is similar to other testimony above that consist-
ently indicates that R. Ortiz consulted with L. Squeri when OJS
janitors were absent or needed to leave work. Thus, it is con-
cluded that 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
including Banegas, “that Mrs. Lauren said that she was going to
take away 2 hours because there was not enough work for all
the time that we were working.” R. Ortiz said he would pay for
1 extra hour so employees could work 7 hours rather than 6.
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.
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 “Pre-
ferred” in that column. Mendoza’s coworker Banegas con-
firmed that he also was told by R. Ortiz to fill out the form by
writing “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 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 Pre-
ferred.
On January 3, 2014, OJS renewed its subcontract for 631
Howard Street without any change to the terms of its prior sub-
contract. 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 evening shift but the subcon-
tract 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 recommenda-
tions 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 ex-
plained, that, “it’s essentially hours, so I’m providing my rec-
ommendation on how much time you need to clean square
footage.” It is concluded that Preferred recommended the num-
ber of employees for this subcontract.
In October 2013, Tapia was hired to work at 631 Howard
from 11 a.m. to 3 p.m., Monday through Friday. Eventually her
hours were extended to 6 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 re-
ceive T-shirts to wear and told Tapia that, “she was like 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 incon-
sistent 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.
18 Tapia filled in for R. Ortiz as day porter on Fridays at 55 Haw-
thorne. She continued these duties for another month after beginning
work at 631 Howard.
boss, the boss of Mr. Rafael Ortiz as well.” L. Squeri and 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 work-
ing for them again, and showed her the duties she would per-
form. The inference to be drawn from this uncontroverted tes-
timony 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.
L. Squeri receives numerous emails from property manage-
ment. For example, she is notified of special events which may
require that the building show at its best condition. She is noti-
fied when plastic bags are placed in recycling bins. She is noti-
fied when the cleaning crew leaves the lights on all night. She
also notifies tenants if the day porter will be absent. L. Squeri
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 refrigera-
tor, “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, when One Kearny
property managers reported problems with janitors mixing re-
cycling 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
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 specif-
ics, and we will both talk to Rosa [the new custodian] this
evening to ensure we get this all taken care of right away.
Thank you for bringing this all to my attention.
The emails and the other communications give the impres-
sion to building management that the janitors cleaning their
buildings are employed by L. Squeri’s employer Preferred or
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 Pre-
ferred since 2008, received a 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 Haw-
thorne 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. Af-
ter speaking with R. Ortiz, Banegas began working 8 a.m. to
4:30 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 some-
times 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.
PREFERRED BUILDING SERVICES 13
In June 2014, R. Ortiz placed Banegas at One Kearny from 5
p.m. to 12:30 a.m., Monday through Friday. Banegas’ cowork-
ers 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, 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 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 re-
ceiving any such text from L. Squeri. Banegas’ testimony is
credited on this matter.
5. Wages
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 by OJS.
6. Other terms and conditions of employment
Many of OJS’ employees testified that they worked for Pre-
ferred. For instance, Mendoza testified that she began working
for Preferred at 55 Hawthorne in October 2012. Similarly,
Useda testified that she began working for Preferred at 55 Haw-
thorne 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 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 Pre-
ferred and OJS. 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 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 jani-
tors 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 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 “Pre-
ferred” logo on them. She also received a jacket that said “Pre-
ferred” 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 “Janitori-
al.” In around November 2013, R. Ortiz gave Useda two more
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 “Pre-
ferred.”
Mendoza wore both the black “Preferred” shirts and the
black “Janitorial” shirts while 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 Mendo-
za, Useda, Franco, and Banegas is credited and it is found that
R. Ortiz 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, Pre-
ferred 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 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 “Pre-
ferred.” Once Useda saw one of the 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 Haw-
thorne, 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 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
Preferred, he was working for his sole proprietorship OJS as the
day porter. His day porter duties and pay did not change. Be-
cause 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 sub-
contract specified the number of hours for the day porter posi-
tion.
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 fol-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
lows:
We return to the traditional test used by the Board (and en-
dorsed 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 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 and courts have done in the
past. [Footnote omitted.]
Thus, the Board no longer requires that an alleged joint em-
ployer directly or actually controls essential terms and condi-
tions of employment. It is sufficient that the putative joint em-
ployer has authority to do so.19 Terms of employment such as
hiring, firing, disciplining, 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 over-
time, 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).
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 performed services under Preferred’s actual
control and direction and were hired, fired, and disciplined by
Preferred. Further, the credible evidence indicates that Pre-
ferred and OJS shared or codetermined hours, scheduling, as-
signment of work, and determination of the manner and method
of work. Finally, at times both OJS and Preferred held out OJS
employees as Preferred employees. These facts warrant a con-
clusion 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 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 of the incident. L. Squeri did view the vid-

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 lim-
ited and routine manner. BFI, supra, slip op. at 16.
20 See, Aldworth Co., 338 NLRB 137, 139 (2002) (relevant facts in-
volved in joint employer determination must be given weight commen-
surate with significance in employee’s work life), cited in BFI, 362
NLRB No. 186, slip op. at 15, fn. 81.
eo. 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 rein-
state 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.” (Emphasis added.)
Similarly, Preferred investigated the incident involving 55
Hawthorne janitor Mendoza in September 2013. R. Ortiz did
not take part in the investigation. L. Squeri reported to build-
ing 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 subcontrac-
tor provides the janitorial service. This explanation is unavail-
ing 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.
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.
The record also reflects that Preferred and OJS shared or co-
determined matters governing the essential terms and condi-
tions of employment. Preferred’s dictation of the number of
workers 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.
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.
Preferred was involved in supervision and direction of work
of OJS janitors. Direction of the manner and method of work

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.
PREFERRED BUILDING SERVICES 15
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
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 Pre-
ferred’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.24
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 re-
lied upon. The record adequately documents the sale of these
supplies and services to OJS as an arm’s-length transaction.
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
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 exercise any disciplinary authority or control” over
OJS; that OJS has “sole discretion” over supervision and con-
trol 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 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, 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.

23 DiMucci Const. Co. v. NLRB, 24 F.3d 949, 952 (7th Cir 1994) (su-
pervision of employees’ day to day activities, issuance of work assign-
ments 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 find-
ing joint employer status.
Preferred argues that BFI requires that there be either actual
or reserved control over the 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 em-
ployment relationship. (Preferred Br. at 2) This argument is
rejected. As found above, the preponderance of the evidence
reveals a different relationship than a mere contrac-
tor/subcontractor agreement. The evidence indicates, rather,
that Preferred 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 cit-
ing to the California Labor Commission (CLC) which Preferred
claims constitutes a finding that it was not the common law
employer of OJS employees.
Preferred argues that utilizing the common law standard em-
bodied 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. Pre-
ferred and OJS conceded these decisions did not have a preclu-
sive 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 discrimi-
natee had failed to establish that there was an employment rela-
tion between her/himself and Preferred. As stated in the Bane-
gas 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” 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 preclu-
sive effect from these holdings.29 Thus, having thoroughly con-
sidered the potential materiality beyond the ultimate holding of
the CLC hearing officer, it is found that the CLC decision has
no probative value.

26 We are “not offering it for preclusive effect, but as a factor, rele-
vant 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.
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 liti-
gating the same issue. Precision Industries, 320 NLRB 661, 663
(1996), enfd. 118 F.3d 585 (8th Cir. 1997); see also Field Bridge Asso-
ciates, 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).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
E. Alleged Unfair Labor Practices
1. Background: Events leading to a 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) codirectors Karl Kramer (Kramer)
and David Frias (Frias). At all of these meetings, the employees
complained to Kramer and Frias about low wages, heavy work-
ing 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 complained
to R. Ortiz about there being too much work for the time al-
lowed 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] su-
pervised. According to Useda, R. Ortiz became upset and re-
sponded: “that if I wanted to know 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 conver-
sation vaguely and remembered that Useda told R. Ortiz he
should not talk about women like that.
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 atten-
tion prior to testifying. Even though the statement was not in-
cluded in her affidavit, Useda’s testimony, corroborated by
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
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 she needed to go back to the eighth
floor to clean a sink. Mendoza protested that she had already

30 Unless otherwise referenced, all further dates are in 2014.
31 See, e.g., Genwal Coal Co., 275 NLRB 528 (1985); Standard
Forge & Axel Co., 170 NLRB 764, 786 fn. 8 (1968): “What a prospec-
tive 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).
cleaned it but there were still people working in the building
who must have used it after she cleaned it. According to Men-
doza, “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.32
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 Bane-
gas 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 already.”
This comment was “the last straw” according to Banegas. He
began attending meetings at SFLWC on October 9 after learn-
ing 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
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 supplies, coemployee Banegas was al-
ready 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 would not happen again.
These actions caused Mendoza to change her mind about join-
ing 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. 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 em-
ployees agreed to do so and the date of October 29 was set for
this demonstration.
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

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.
33 Ortiz denied ever talking about an alleged affair or a personal rela-
tionship between Giovanni and an employee. He also denied ever stat-
ing 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.
PREFERRED BUILDING SERVICES 17
walked in circles on the sidewalk in front of the building carry-
ing 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?
We do.
We work for Preferred Building Services which cleans the of-
fices of KGO 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 in-
volves 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 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 compen-
sation, and full legal protections against sexual harassment
and retaliation for asserting their rights.
Vote yes on Prop J on Nov. 4 to raise the city mini-
mum wage.
Join us for a picket line outside the offices of KGO ra-
dio.
Wednesday, October 29
10 a.m.
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, sfliv-
ingwage@riseup.net
In addition to handing out these leaflets and chanting, the
picketers carried placards 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 Interna-
tional 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 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.”
P. Dellanini testified that he received the flyer via email from
55 Hawthorne Property Manager Maxon, who asked P. Del-

34 Under Useda’s picture, the text stated: “Yunuen is raising two
teenagers on the city minimum wage of $10.74 per hour.”
35 Under Mendoza’s picture, the text stated: “Balbina is raising three
teenagers and a four year old on $10.74 per hour.”
lanini 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 pic-
tured on the flyer were complaining about sexual harassment.
He also understood that these women said they worked for
Preferred. P. Dellanini had no knowledge regarding the state-
ments on the flyer and did not conduct any investigation into
the allegations.
Maxon recalled this conversation with P. Dellanini or a simi-
lar conversation after a subsequent demonstration. Maxon re-
called recommending that R. Ortiz be removed pending inves-
tigation into the allegations. Maxon also requested that R.
Ortiz’s wife be removed from the building pending investiga-
tion. Maxon denied that he told P. Dellanini to get rid of R.
Ortiz. According to L. Squeri, when she arrived at 55 Haw-
thorne, Maxon requested that she remove R. Ortiz from the
building. She did not have any further opportunity to speak
with Maxon. Maxon’s testimony is credited based on his forth-
right 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 lost his job and his contracts had
been cancelled. R. Ortiz asked Kramer who made the accusa-
tions 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 conversa-
tion with Kramer on October 30. R. Ortiz testified that he asked
him, “why are they talking about me” and told Kramer that the
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.”
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
prepare for group action, as well as individual employees bring-
ing truly group complaints to the attention of management.
Fresh & Easy Neighborhood Market, 361 NLRB 151, 153
(2014).36 If the employee or employees who are acting in con-
cert are seeking to improve terms and conditions of employ-
ment, their actions are for mutual aid and protection of all em-
ployees within the meaning of Section 7. Id., at 153, 155–156.
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

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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
and other employees. When these employees agreed to seek
assistance from the Union, they were engaging in union activi-
ty.
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 vio-
lation of Section 8(b)(4)(B) and (7) of the Act and that the ban-
ners and leaflets set forth unlawful, malicious defamatory
statements. These assertions are rejected because it is found
that the demonstrations were not unlawful secondary or recog-
nitional 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 unlaw-
ful strike in violation of Section 8(b)(4)(B) 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 Haw-
thorne including KGO radio 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 objec-
tive existed. Thus, this defense is rejected.
As relevant here, Section 8(b)(4)(B) provides that a labor or-
ganization commits an unfair 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 busi-
ness 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 NLRB 797, 799–800 (2010) (foot-
note omitted):
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 Coun-
cil, 341 U.S. 675, 692 (1951). Congress did not, however, in-
tend to prohibit all conduct of labor organizations that might
influence or persuade such “unoffending employers” to sup-
port the unions’ cause. The Supreme Court explained:
Whatever may have been said in Congress preceding the pas-
sage of the Taft-Hartley Act concerning the evil of all forms
of ‘secondary boycotts’ 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 un-
ion conduct directed to specific objectives.
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 con-
stitutes, necessarily, some form of confrontation between a
union and customers or suppliers 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 Cir-
cuit’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 satisfies the first requirement of Section
8(b)(4)(B).
However, there is no evidence which satisfies the second re-
quirement of 8(b)(4)(B), that is, an inducement to cease doing
business with another employer with which a union has a dis-
pute. The only evidence of record remotely relevant to this
factor is the picket sign itself. As 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 compen-
sation, and full legal protections against sexual harassment
and retaliation for asserting their rights.
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 em-
ployers or employees, and 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 &1498 (New Star), 356 NLRB 613, 615 (2011):
Section 8(b)(4)(i)(B), in particular, is violated by picketing or
other activity that induces or encourages the employees of a
secondary employer to stop work, where an object is to com-
pel that employer to cease doing business with the struck or
primary employer. Unless both of those elements are demon-
strated, no violation of the Act may be found. Activity intend-
ed only to educate consumers, secondary employers, or sec-
ondary employees, and even prompt them to action—so long
as the action is not a cessation of work by the secondary em-
ployees—is lawful.
In evaluating whether a secondary objective is present, it
must be noted that 55 Hawthorne is a multi-story office build-
ing with multiple tenants. These tenants are neutral employers
regarding the Union’s dispute with Respondents. These tenants
were engaged in their own primary activities and did not per-

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, con-
curring)); 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.”)
PREFERRED BUILDING SERVICES 19
form any work for Respondents. When pickets are present at a
common situs, that is, a location where both primary and neu-
tral employers are present, the picketing is presumptively law-
ful 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 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).
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 dis-
closed 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 the Union had regard-
ing 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.
Thus, given the access points to the property and the lack of
any precise location which could have assured that only prima-
ry employees would be present, the picketing on public side-
walks outside the lobby was not conducted in a manner allow-
ing an inference of a secondary 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 presumption. Although the
picket signs sought KGO’s assistance in aiding janitors to re-
ceive better wages, sick pay, workers compensation, and pro-
tection 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 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

38 See, e.g., ElectricAl Workers 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 Proper-
ties began searching for a unionized cleaning contractor. There is no
evidence to connect this search to the picketing. Eventually, Preferred
defense that the picketing was unlawful secondary activity is
rejected.
(ii) Affirmative Defense: Employees were engaged in unpro-
tected strike in violation of Section 8(b)(7)(C) of the Act
Respondents argue that the actions of Useda, Banegas, Men-
doza, and others at the October 29 and November 19 demon-
strations and at similar later demonstrations were 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 un-
fair labor practice for a labor organization to picket any em-
ployer where an object is to force or require an employer to
recognize or bargain with a labor organization as the repre-
sentative of its employees unless the labor organization is al-
ready 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 repre-
sentation petition is filed. The second proviso exempts informa-
tional 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 reasonable time.
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 con-
stituted picketing and satisfies the “restraint or coercion” re-
quirement. Further, there is no dispute that a petition for recog-
nition has not been filed.40 The object of the 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

notified Harvest Properties that it was cancelling its contract to clean 55
Hawthorne.
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 Octo-
ber 29, November 19, and December 18.
41 For instance, in Hotel & Restaurant Employees Local 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 insuffi-
cient 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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD20
Respondents argue that the recognitional objective is satis-
fied where a union attempts to dictate a change in working
conditions of employees it does not represent. Respondent Pre-
ferred cites Congress of Independent Unions v. NLRB, 620 F.2d
172, 176 (8th Cir. 1980), and NLRB v. Electrical Workers
IBEW Local 265, 604 F.2d 1091, 1097 (8th Cir. 1979). These
cases are inapposite because both took place in the context of
organizational activity.
In CIU, the court of appeals reversed the Board and found
that the picketing arose in a 2-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 recogni-
tional attempts convinced the court that a recognitional 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 de-
manded area standards wages and offered to provide area
standards information to the employer in order to reach agree-
ment. 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 ac-
tion or statement. The picket signs and leaflets were directed to
the public rather than to employees.43 There were no requests
that employees join the Union made in connection with the
picketing.44 There is no evidence of a contemporaneous de-
mand for recognition45 and no evidence that a contract was
tendered at the time of picketing,46 or that cessation of picket-
ing was conditioned on signing a contract.47 The evidence indi-

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.)
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 Syra-
cuse, 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 ob-
tain agreement).
47 Maxam Buffalo, supra (references to warfare and repeated state-
ments about need for haste in context of presentation of contract details
indicative of picketing ceasing upon recognition); see also–-980 (1963)
cates 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 infor-
mational 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.
(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 regarding R. Ortiz contained unlawful, mali-
cious defamation, the alleged discriminatees’ conduct is unpro-
tected. In this connection, Respondents claim that the state-
ments regarding abusive, unsafe working conditions and sexual
harassment were knowingly false or made with reckless disre-
gard of the truth. This contention is also rejected.
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 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) (em-
ployee disparagement of an 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 activi-
ty in progress.48 The leaflets stated that employees endured
“abusive and unsafe working conditions and sexual harass-
ment.” The leaflets also stated that hours were cut and “a fore-
man” told employees “additional hours would need to include
sexual favors.” These leaflet statements made particular refer-
ence to treatment of employees, wages, and conditions of em-
ployment. The leaflets appealed to the public for support and
sympathy. Thus, the leaflets clearly referred to an ongoing la-
bor dispute and were inextricably intertwined with the employ-
ees’ 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

(union stated pickets would be removed when there was a certified
representative for the employees or if the employer hired union mem-
bers).
48 Sec. 2(9) of the Act defines “labor dispute” to include “any con-
troversy concerning terms, tenure or conditions of employment.” The
picket signs and leaflets referenced working conditions and wages.
PREFERRED BUILDING SERVICES 21
to suggest otherwise. Thus, it is not found that any of the accu-
sations on the leaflets, which were 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.
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 the complaint as amended. Gener-
ally, 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 was fully litigated. Rogan Brothers Sanita-
tion, Inc., 362 NLRB No. 61, slip op. at 3, fn. 8 (2015).
A motion made at the beginning of hearing arising from and
closely related to existing complaint allegations may appropri-
ately 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 additional substantive allegations of
unfair labor practices to the complaint only if the parties 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 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 prove a

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) (mi-
nor matters such as errors in dates); Centre Engineering, Inc., 246
NLRB 632, 633 fn. 3 (1979) (names of alleged agents reversed).
50 See, e.g., Desert Aggregates, 340 NLRB 289, 292–293 (2003),
modified on other grounds, 340 NLRB 1389 (2003), (posthearing mo-
tion 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 man-
ager’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).
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 Contrac-
tors, Inc., 348 NLRB 98, 105 (2006).
Specific findings will be made regarding each of the unal-
leged 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 (com-
plaint par. 8(a)(i)) unpled allegation regarding interrogation
during same conversation
(a) Facts
After the picketing, Mendoza testified that she received a
call from R. Ortiz who stated, “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 picket-
ing not to return to work. As mentioned in prior sections, Men-
doza was a highly credible witness. Her testimony in regard to
this conversation was open and consistent. Thus, her testimony
that R. 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
(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 Sec-
tion 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 about unions or unionism or other
protected activity as long as the communication does not con-
tain 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 jeop-
ardize their jobs, wages, or other working conditions by sup-
porting a union or engaging in concerted activities, such com-
munication tends to restrain and coerce employees if they con-
tinue 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).
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 dis-
charge for protected activity.51 Although the complaint alleges

51 See, e.g., Publix Super Markets, Inc., 347 NLRB 1434, 1435–
1436 (2006) (unretracted threat to discipline or discharge employees for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD22
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 any-
more is substantially similar to the allegation to be encom-
passed within the pleading. Thus, it is 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
The complaint does not allege that the questions asked dur-
ing this conversation (What’s going to happen? Why were you
there [at the demonstration]?) constitute unlawful interroga-
tion.52 As only minor matters may be included in the motion to
conform the pleading to the proof, adding an allegation of inter-
rogation to the complaint allegation of a threat does not qualify
as a minor matter appropriately handled by a motion to con-
form the pleadings to the proof.
Nevertheless, if the matter is closely related to the allega-
tions of the complaint and fully and fairly litigated, it may be
litigated. Here, the matter was not fully litigated even through
Mendoza was asked one question on cross-examination about
the conversation.53 As the Board stated in Mine Workers Dis-
trict 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 alterna-
tive claim does not 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 mat-
ter regarding the questions 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 employ-
ees by taking photos of employees engaged in union activities
(Complaint par. 8(a)(ii))
(a) Facts
The complaint alleges that R. Ortiz engaged in surveillance
of the October 29 picketing at 55 Hawthorne by taking pictures

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 Oc-
tober 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.
53 On cross-examination, Mendoza was asked whether during this
postdemonstration 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 re-
garding the alleged threat or the unalleged interrogation.
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.
Ortiz agreed that he saw Mendoza, Useda, and Banegas picket-
ing on October 29.
(a) Analysis
It is not alleged in the complaint that R. Ortiz’ observation of
employee picketing from inside the lobby violates the Act.
Rather, it is his alleged photography or videography of employ-
ee activity that is at issue, as framed by the complaint. Howev-
er, 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.
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 hold-
ing a cell phone out and moving it around appears to indicate
that a photo or video is being taken.
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 photo-
graphing 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 pick-
eting employees.
As to the argument that R. Ortiz’ open, prolonged, conspicu-
ous 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 collect-
ing trash, polishing rails, dusting, and cleaning water fountains.
This work sometimes required that he be in the lobby. 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 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 sur-
veillance. F. W. Woolworth, 310 NLRB 1197 (1993) (employ-
er’s mere observation of employees’ open, public union activity
on its premises does not violate the Act). Thus, paragraph
8(a)(ii) of the complaint is dismissed.
7. Further statements of October 29 which the General Counsel
PREFERRED BUILDING SERVICES 23
contends violated Section 8(a)(1) of the Act even though they
are not alleged in the complaint
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 postdemonstration conversation
between R. Ortiz and Useda in which R. Ortiz asked why the
employees 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 warn-
ing 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 postdemonstration meeting on Oc-
tober 29 in which R. Ortiz told Banegas and Mendoza that 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 com-
plaint as violations of the Act. Under the circumstances of this
case, the General Counsel’s request that the complaint be
amended to add these three additional violations is denied. The
General Counsel has provided no reason for a posthearing
amendment of the complaint. No notice was given to the Re-
spondents 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 discrete occurrences in separate settings. Respondents
did not question their witnesses or the General Counsel’s wit-
nesses on cross-examination about whether these statements
were made. 54
Thus it is not possible to find that these allegations were ful-
ly and fairly 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 (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, su-
pra, 357 NLRB at 2345 (no amendment allowed where re-
spondent was not on notice that it faced liability for this specif-
ic conduct and it had no reason at the hearing to attempt to
dispute the unpled conduct).

54 Specifically, as to the predemonstration phone call between Men-
doza 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.
8. About October 30, R. Ortiz asked employees at One Kearny
for employment verification (Complaint par. 8(b)(i))
(a) Facts
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 followup call from R. Ortiz. He told her that her
green card, her work permit, was expired. According to Men-
doza, 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.
(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 accept for verification pur-
poses. An employer is required to record on the I-9 form the
issuing authority and expiration date for the documents pro-
duced. IRCA provides for civil and criminal penalties if an
employer knowingly hires an undocumented worker.
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 412, 413–414
(2014); Nortech Waste, 335 NLRB 554, 554–555 (2001) (re-
jecting employer’s argument that its review of immigration
status was normal compliance with IRCA and finding that it
was 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

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 synony-
mous 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.
56 See also, Rivera v. NIBCO, Inc., 364 F. 3d 1057, 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 exam-
ined 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.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD24
requested as a normal 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 Bane-
gas had not furnished his. The General Counsel asserts that
Respondent OJS did not establish a legitimate business reason
for 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 union activity and asked them to
stop or they would be terminated (complaint par. 8(b)(ii))58
About October 31, V. Ortiz threatened employees at One
Kearny with lodging a complaint against them and other un-
specified reprisals (Complaint paragraph 8(b)(iii)
(a) Facts
Banegas and Mendoza were met by R. and V. Ortiz on Octo-
ber 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 the demonstration leaflets, and asked how much money
he wanted. During a lengthy exchange of grievances on both
sides, Benagas testified that V. Ortiz told him that she was go-
ing 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 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 millions and that we should be
thankful because they were giving us work.”
As mentioned before, in general, Mendoza’s testimony was

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 allega-
tions 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.
60 R. Ortiz did not remember his wife making this statement.
highly credible. Although Banegas admitted that he had diffi-
culty remembering exact dates, his testimony about this meet-
ing was equally credible, with consistency and exactness of
recollection. Mendoza did not 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 ex-
tent V. Ortiz generally denied making threats, her testimony is
discredited. In general, V. Ortiz’ testimony was lacking in de-
tail and conclusory. Similarly, R. Ortiz’ recollection lacked
specificity. Moreover, the record as a whole reflects that the
period of time 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) Analysis
(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 is evaluated considering the back-
ground, 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 na-
ture of the 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 vio-
lated 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 conditions of em-
ployment.
The statement by R. Ortiz that Preferred said that employees
must publicly apologize for the statements in the leaflets dis-
tributed during the demonstration or they would lose their jobs
tends to restrain protected, concerted activity and union activity
and clearly constitutes a threat of discharge for protected activi-
ty.62 The statement by R. Ortiz to be careful about going to the
Union and to SFLWC constituted a threat of unspecified repris-
al for engaging in union or protected, concerted activity.63

61 Norton Audubon Hospital, supra, 338 NLRB at 320–321.
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 employ-
ees that they will jeopardize their job security, wages or other working
conditions if they support the union. Metro One Loss Prevention Ser-
vices 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 Sec. 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
PREFERRED BUILDING SERVICES 25
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 speak-
ing and acting with apparent authority for management when
she attended the post-October 29 demonstration meeting with
her husband.64 The Board 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 man-
agement point of view, V. Ortiz possessed apparent authority.
Employees would reasonably believe that she was speaking for
management. Moreover, even in the absence of actual or appar-
ent authority, a principal may be bound by the actions of an
individual where the principal ratifies those actions by si-
lence.67 Here, V. Ortiz made the statement while accompanying
her husband and OJS’ owner R. Ortiz to a meeting with em-
ployees. R. Ortiz who was present at the time of the statement,
did not controvert V. Ortiz’ statement. By his silence, he rati-
fied the statement.
In the context of discussion about the October 29 demonstra-
tion, 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, threat-
ening to file a lawsuit against an employee in retaliation for
protected activity tends to restrain and coerce Section 7 rights.68
The statement to Banegas by V. Ortiz that she was going to sue
him for harassing Mendoza was certainly a reaction to the em-
ployee 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.
(ii) Unpled allegation of promise of wage increase for rejection

involved with the union found violative, citing Keller Ford, 336 NLRB
722 (2001), enfd. 69 Fed.Appx. 672 (6th Cir. 2003), a supervisor un-
lawfully 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, em-
ployer 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 objectively reasonably tend to inter-
fere with, restrain or coerce an employee’s Sec. 7 activity.)
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
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 posthearing briefing and was not fully litigated. Allowing
amendment at this late stage of the proceedings denies Re-
spondents due process of law. See, e.g., The Dalton School,
supra, 364 NLRB No. 18, fn. 2 (2016); Piggly Wiggly Midwest,
LLC, supra, 357 NLRB at 2345.
10. About October 30, R. Ortiz told employees that their work-
ing conditions had changed due to their union activity (com-
plaint par. 8(c))
(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.
(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
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.
On or about November 1, R. Ortiz told employees at 55
Hawthorne he would lose or had lost the Preferred contract
because of employees’ union activity.(complaint par. 8(d)(i))
(c) Facts
Around November 1, R. Ortiz recalled telling janitors that
“they were my employees, that the only thing they were ac-
complishing 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.
(d) Analysis
The comment clearly constitutes a statement that the em-
ployees’ 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 to lose it contracts. Thus,
the statement constitutes a violation of Section 8(a)(1).

69 Banegas’ credited testimony was that R. Ortiz asked him how
much money he wanted. This was implicitly a promise of a wage in-
crease 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 activ-
ity. See Network Dynamics Cabling, supra, 351 NLRB at 1424.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD26
12. Unalleged claims of unlawful conduct prior to
November 19
The General Counsel asserts that further unalleged violations
occurred after November 1 and before November 19. In order
to include them, the General Counsel requests amendment of
the complaint to include these allegations pursuant to her mo-
tion made at the end of the hearing to conform the pleadings to
the proof. The motion to conform was granted as to minor mat-
ters 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.
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 prom-
ised her a raise if he kept the contracts and she kept her job.
Tapia’s testimony is credited. Tapia was a highly credible wit-
ness who exhibited excellent recall. Her overall demeanor was
that of concentration on listening to the questions and answer-
ing with the facts. She had difficulty testifying about her en-
counters 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 conversa-
tion to the complaint, Respondents 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
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 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. There-
fore, it will not be added to this litigation.
13. Demonstration of November 19 at 55 Hawthorne
On November 10 at a meeting at SFLWC, Mendoza, Bane-
gas, Useda, and Tapia met with Kramer and Frias. Useda re-
ported a conversation she had with R. Ortiz and his wife. Tapia
told 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

70 Mine Workers District 29, 308 NLRB 1155, 1158 (“opportunity to
cross-examine does not qualify as fully litigating an issue.”)
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 Face-
book 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.
second picket.
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 chant-
ing slogans such as “Up with the Union. Down with exploita-
tion.” 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 “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 of-
fices of KGO 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 in-
vovlves 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 medical bills for injuries
on the job as required by workers compensation.
We are calling on KGO radio and Cumulus Media as the ma-
jor tenant to help in getting Preferred Building Services to lis-
ten to our demands and not ignore us.
Join us for a picket line outside the offices of KGO radio.
Wednesday, November 19
10 a.m.
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, sfliv-
ingwage@riseup.net
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.

“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 testi-
fied 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.
PREFERRED BUILDING SERVICES 27
14. On or about November 19,72 R. Ortiz threatened employees
at 55 Hawthorne with unspecified reprisals (complaint par.
8(d)(ii); V. Ortiz threatened employees at 55 Hawthorne with
unspecified reprisals (Complaint par. 8(d)(iii))
(a) Facts
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 like the accusations of
harassment. R. Ortiz told Useda that Banegas was the one har-
assing 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 do-
ing. That Karl Kramer was not even an attorney. He was just an
activist.” When R. Ortiz asked why Kramer was present, Useda
replied, “We 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. 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 atten-
tion.” 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 to Useda.
At the meeting, V. Ortiz recalled she asked if Useda had
proof of the accusations in the flyers. Useda asked to have em-
ployee 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 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 do-
ing, so that Yunuen [Useda] would clarify for me what they
were accusing my husband of and whether they had proof.” V.
Ortiz testified 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 com-
ments made by her husband. For the reasons stated above,
Useda’s testimony is credited.

72 The complaint alleges that this conduct occurred on November 1.
Witnesses uniformly placed the meeting as on November 19. The com-
plaint 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.
(b) Analysis
R. Ortiz told Useda that she had better be careful about par-
ticipating in the 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 (iii) above, the statements
of R. Ortiz and V. Ortiz contain threats of unspecified reprisals.
Thus, these statements violated Section 8(a)(1).
15. Unpled allegations regarding postdemonstration meeting of
November 19
The General Counsel alleges in her brief that R. Ortiz’ ques-
tioning of Franco on their way to meet with Useda on Novem-
ber 19 constitutes an unlawful interrogation. Although 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.
Franco and R. Ortiz spoke on the sixth floor after the meet-
ing 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 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 statements was not fully litigated and is thus
not properly presented. See, e.g., Dalton School, supra, 364
NLRB No. 18, fn. 2; Piggly Wiggly Midwest, LLC, supra, 357
NLRB at 2345.
During a postmeeting 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 stu-
pidity of what Useda and others were up to. The General Coun-
sel alleges for the first time on brief that this statement consti-
tuted a violation of the Act. This matter similarly was not fully
and fairly litigated and no finding may properly be made. See,
e.g., Dalton School, supra, 364 NLRB No. 18, fn. 2 (2016);
Piggly Wiggly Midwest, LLC, supra, 357 NLRB at 2345.

73 Presumably December 15 as this conversation was after the No-
vember 19 demonstration.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD28
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 par. 8(e)(i)
and (ii))
(a) Facts
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.
(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 con-
nection 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.
17. Alleged surveillance (complaint par. 8(f))
(a) Facts
On November 19, Mendoza observed R. Ortiz and L. Squeri
in the security area of the 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 pho-
tos 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 observa-
tion. Banegas observed L. Squeri in the lobby with her cell
phone in her hand 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 im-
portant at some point.
(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). 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 Respond-
ents 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.
18. Statement at 240 Golden Gate that employees were dis-
charged because of their union activity (Complaint par. 8(g))
(a) Facts
On about November 20, Miranda called R. Ortiz on speaker
phone from the Union’s office at 240 Golden Gate in the pres-
ence of Useda, Banegas, and Mendoza. Miranda asked R. Ortiz
why he fired employees and he responded, according to Miran-
da, 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 lost
the building. Miranda recalled that R. Ortiz told her that Bane-
gas 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.
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
Services wiping their butt with him [R. Ortiz].” After exhaust-
ing Banegas’ recollection about the phone conversation, Bane-
gas 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 mak-
ing a scandal.”
R. Ortiz agreed that he received the phone call from Miran-
da. He recalled that she asked why he fired Banegas and Men-
doza 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 recalled that Miranda
suggested that he get a lawyer because he was in serious trou-
ble. R. Ortiz denied that he stated during this phone call, “that’s
the way us Mexicans talk to one another” or words to that ef-
fect. 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 Miran-
da that L. Squeri was his boss.
The testimony of Banegas and Miranda is credited over the
testimony of R. Ortiz when there is divergence in their recollec-
tions. 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 conversation that
Mendoza was discharged because of deficient performance of
her work and Banegas, for failure to complete his employment
application.
(b) Analysis
A statement that employees were discharged, in part, for
their protected, concerted or union activity reasonably tends to
PREFERRED BUILDING SERVICES 29
chill protected, concerted or union activity. Thus, the statement
that Banegas and Mendoza were discharged due to this activity
violates Section 8(a)(1) of the Act.
19. Unpled allegation in December
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?
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 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 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.
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 pro-
tected activity. For the reasons set forth in section E.4., no vio-
lation 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 due process of law. See, e.g., Dalton
School, supra, 364 NLRB No. 18, fn. 2 (2016) (unpled allega-
tion which was not fully and fairly litigated may not be heard as
Respondents had no notice and no opportunity to mount de-
fense); 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).
20. Alleged unlawful termination of Mendoza and Banegas
(Complaint par. 9)
(a) Facts
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.”
When Banegas reported to work on the evening of Novem-
ber 19, R. Ortiz told him to leave, that he was fired. Banegas
asked why and R. Ortiz responded, according to Banegas, “be-
cause you’re making noise and you’re making the company,
Preferred Building Service, look bad.” Banegas’ testimony is
credited for the reasons stated above.
Banegas agreed that he never completed his employment ap-
plication 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 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
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 fam-
ily members who work for OJS. After Banegas and 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 oc-
casions “they” would put plastic trash bags in the recycling bins
after I 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 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
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 ad-
verse employment action is discriminatorily motivated, the
General Counsel must first establish, by a preponderance of the
evidence, that an employee's protected or 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 direct evidence or inferred from
circumstantial evidence.74 Several factors, including evidence

74 Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004);
Ronin Shipbuilders, Inc., 330 NLRB 464, n. 5 (2000.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD30
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
If the General Counsel establishes a prima facie case of dis-
criminatory 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).
Regarding the General Counsel’s prima facie case, the record
amply reflects that Mendoza and Banegas engaged in both Un-
ion and protected, concerted activity by joining together with
other employees and with SFCLW and SEIU Local 87 to im-
prove their wages, hours, and working conditions. These efforts
were open and observed by Respondents’ representatives L.
Squeri and R. Ortiz. Numerous unlawful statements indicate
that Respondents harbored animus toward the employees’
demonstrations. Explicit statements of Respondents also indi-
cate that this was the reason they were fired.76 Additionally, the
timing of their discharges on the evening of the second demon-
stration supports an inference of discriminatory motivation.
Thus, the General Counsel has shown by a preponderance of
the evidence that the protected activity of Mendoza and Bane-
gas 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 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
repeatedly to complete his employment application with sup-
porting 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 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 applica-
tions immediately or did not complete them immediately. Due
to this disparate treatment, to the extent Respondents rely on
failure to complete employment application or re-verify appro-

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 employ-
ees were fired for taking part in the demonstrations.
priate 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
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 criticisms of inadequate perfor-
mance. 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.
Due to reliance on pretextual and disparate treatment, Re-
spondents 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.
Respondents argue that Mendoza and Banegas were dis-
charged 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 en-
gaged 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 demon-
strations 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 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 appli-
cants engaged in disqualifying secondary activity).
In conclusion, it is found that Respondents discharged Men-
doza 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 Street
and 631 Howard Street allegedly to chill union activity and
causing termination of mployees (complaint par. 10(a), (b), and
(c))
(a) Facts
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 away.”
PREFERRED BUILDING SERVICES 31
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, Max-
on 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 noth-
ing he could do. Maxon testified that he expected Preferred to
perform an investigation into 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. Del-
lanini sent an email to Maxon, stating:
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 sooner, Preferred agrees to cooperate with that ac-
tion 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 Haw-
thorne and that Maxon speaking on behalf of Harvest 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 didn’t these accusa-
tions 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 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 Pre-
ferred, “had destroyed him, that they had fired him.”
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?
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 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 contracts.
Tapia: No, they didn’t let me know anything. It was
your 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.
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 “be-
cause the contract had all been lost and that they didn’t have
any place to put me because now there was no more work be-
cause 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.
The employees continued to meet at SFLWC once a week.
Usually Kramer and Frias were present as well as Useda, Bane-
gas, 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.
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 No-
vember 19. The same five pictures and the same text were re-
peated on the top half of the flyer. However, after the text re-
garding workers compensation, the December 18 text was dif-
ferent, as follows:
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 retali-
ated by cutting the shifts for one worker at One Kearny and
74 New Montgomery. At another building, the 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 Kearny, Derrick Change, at 415-
778-1133 or dfchang01@gmail.com. We are demanding $15
per hour, a full 8-hour day and the right to organize without
retaliation.
Join us for a picket line.
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, sfliv-
ingwage@riseup.net
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
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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD32
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 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.
Eventually, Mendoza reached her husband’s cousin Jesus
Madris who told her that she should not try to contact her be-
cause R. Ortiz told her that she would be fired if she joined the
employees.
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?” Bane-
gas 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.
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, Men-
doza, 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 jani-
tor, at one point identified as male, at another point identified as
female, but finally identified as Antonio. Useda told this 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.
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 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.
In January 2015, Mendoza spoke with Faustino at 74 Mont-
gomery. 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 re-
called visiting Millennium with Mendoza and Useda. They
spoke to a female janitor about the Union but she stated that
although she was interested, she did not feel comfortable dis-
cussing 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 the cleaning contract. They spoke to
about 25 employees. P. Dellanini testified that Preferred has
never subcontracted to OJS at Millennium Towers, Opera Pla-
za, or One Rincon.
(b) Analysis
The General Counsel’s theory regarding Preferred’s cancel-
lation 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 clos-
ing 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, Fran-
co, Flores, Tapia, Useda, and others similarly situated were
unlawfully discharged.
In Darlington, the Court sanctioned complete cessation of
business even when motivated by vindictiveness toward a un-
ion.77 However, it held that a partial closing is an unfair labor
practice if motivated by a purpose to “chill unionism” in re-
maining locations.78 As the Court 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 substan-
tiality to give promise of their reaping a benefit from the dis-
couragement 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 re-
alistically foreseeable that its employees will fear that such
business will also be closed down if they persist in organiza-
tional activities, we think that 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 contemporaneous union
activity at the employer’s remaining facilities, geographic prox-
imity of the employer’s facilities to the closed operation, the
likelihood that employees will learn of the circumstances sur-
rounding the employer’s unlawful conduct, and representations
made by employer agents and supervisors to other employees.
Bruce Duncan Co., 233 NLRB 1243, 1243 (1977), modified on
other grounds, 590 F.2d 1304 (4th Cir. 1979).
In determining whether an employer’s motive is to chill un-
ionism in its remaining operations, the Wright Line test is ap-
plied to examine the timing and manner of the closure in rela-
tion to employee protected conduct. Real Foods Co., 350

77 Darlington, 380 U.S. at 272.
78 Darlington, 380 U.S. at 275.
PREFERRED BUILDING SERVICES 33
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 motivat-
ed by the employees’ protected concerted activity. To carry
his initial burden, the General Counsel must show that the
employees had engaged in protected activity and that the em-
ployer knew of the activity. The General Counsel also must
establish that the activity was a substantial or motivating rea-
son for the employer’s action. If the General Counsel meets
this burden, then the burden of persuasion shifts to the em-
ployer to prove 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 cessa-
tion of operations. Where an employer takes adverse action
against an entire body of employees due to their protected ac-
tivity, it “manifests its animus toward all of them.” Igramo
Enterprise, Inc., 351 NLRB 1337, 1339 (2007), review 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).
Further, it is not necessary to prove that remaining employ-
ees were actually “chilled” in their union activities. Rather, the
General Counsel may show that a chilling effect was foreseea-
ble 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).
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 Octo-
ber 29 when employees picketed with signs and leaflets adver-
tising their concerted and union activity. The record contains
substantial evidence of animus to this activity. Further, explicit,
contemporaneous statements of R. Ortiz link the demonstra-
tions 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 employees asked the Union
for help, he had lost all his jobs.
Thus, the record amply supports a finding that employee pro-
tected, concerted and union activity was a substantial or moti-
vating reason for cancellation of the contract with Harvest
Properties. As R. Squeri explained, he cancelled the contract in
order to end the demonstrations. The General Counsel has
therefore satisfied the burden to show, by a preponderance of
the evidence, that the decision to cancel the contract was moti-
vated 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 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.
There is no dispute that Respondents’ other cleaning con-
tracts besides those at 55 Hawthorne-631 Howard encompassed
numerous direct contracts with buildings or building manage-
ment 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
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, Respond-
ents would discourage similar activity at these other locations.
Closing one operation because of protected, concerted and Un-
ion activity was an object lesson, a realistically foreseeable
consequence for other employees warning them that further
demonstrations would result in further contract cancellation.
Accordingly, it is found that Respondents cancelled the con-
tract 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 Respond-
ents could reasonably have foreseen this likely result. It is
found that Respondents motivation was to chill unionism in its
remaining locations. This chilling effect was entirely foreseea-
ble and, hence, intended. The result was that employees C.
Cruz, J. Cruz, Franco, Flores, Tapia, Useda, and any other simi-
larly situated employees were unlawfully discharged in viola-
tion of Section 8(a)(3) and (1) of the Act.
22. Since about December 14, Respondents have failed to offer
employment opportunities to its employees Tapia and Useda
(Complaint par. 10(d))
(a) Facts
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 pro-
tected, concerted activities. In other words, absent their protect-
ed activity, Respondents would have placed them in other loca-
tions where janitorial positions were available. The General
Counsel points to two vacancies at One Kearny due to the dis-
charge 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 employ-
ees with high turnover rate, the General Counsel also urges that
Preferred had the capacity to continue Tapia and Useda as di-
rect employees.
(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
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD34
the following framework to analyze allegations of discriminato-
ry 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 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.
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 anti-
union animus was present at the time of the December 15 con-
tract ending date. Thus, in order to show that Respondents re-
fused to rehire or transfer Tapia and Useda at the time of can-
cellation of the 55 Hawthorne-631 Howard contract and sub-
contract, the General Counsel must first show that 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 Cervan-
tes, V. Ortiz’ brother, who worked at 55 Hawthorne, was trans-
ferred to a different building, thus avoiding layoff. The record
further indicates R. Ortiz and his wife took over the positions at
One Kearny when Mendoza and Banegas were unlawfully dis-
charged.79 Flores, a co-worker of Tapia and Useda at 55 Haw-
thorne, worked for R. Ortiz at another subcontracted building
one or 2 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.
For purposes of analysis, one may find there was at least a 1-
to 2-day position which was filled by Flores following termina-
tion of the 55 Hawthorne contract and subcontract and poten-
tially a position vacated by Lopez at 77 Gear-33 Grant on Janu-
ary 1, 2015. It is not entirely clear that the transfer of Lopez
from 77 Geary-33 Grant opened a position that was filled. In
fact, Respondent OJS employment records do not establish that
it was. The other openings all predate the December 15 termi-
nation date and were filled prior to that time. Moreover, specu-
lation that Respondent Preferred, with high turnover and ap-
proximately 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.
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 for their protected, concerted activity, and union activity.

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.
The record is devoid of any evidence regarding the qualifica-
tions of Flores and Lopez. It is, accordingly, impossible to de-
termine whether Respondents failed to adhere uniformly to
generally known applicant requirements, or that any require-
ments 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 dismissed.
CONCLUSIONS OF LAW
1. Respondents Preferred Building Services, Inc. and Rafael
Ortiz d/b/a Ortiz 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 go-
ing to be working anymore.
(b) Asking employees who were engaging in protected, con-
certed 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.
(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.
(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 be-
cause 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.
(i) By the following acts and conduct, Respondents have vi-
olated Section 8(a)(3) and (1) of the Act.
(j) 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.
(k) 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.
(l) Terminating the subcontract between Preferred and OJS
for janitorial cleaning services at 55 Hawthorne and 631 How-
ard Street in San Francisco, California because employees as-
sisted 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.
(m) Based on termination of the contracts, discharging em-
ployees Carlos Cruz (C. Cruz), Juana Cruz (J. Cruz), Flores,
Franco, Tapia, Useda, and any other similarly situated employ-
ees because employees assisted the Union and engaged in con-
certed activities and to discourage employees from engaging in
these activities.
PREFERRED BUILDING SERVICES 35
REMEDY
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 be ordered to
cease and desist from that activity.
Having found that Respondents unlawfully discharged Men-
doza and Banegas, Respondents must offer them reinstatement
and make them whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from the dates of discharge
to the date of proper offers of reinstatements less any net inter-
im 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 Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
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 Cha-
vas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014).
As to the unlawful discharges of C. Cruz, J. Cruz, Flores,
Franco, Tapia, Useda, and any other similarly situated employ-
ees, caused by cancellation of the 55 Hawthorne-631 Howard
contracts, the General Counsel requests that these discrimi-
natees by reinstated. Such a remedy would require restoration
of the contract between Preferred and Harvest Properties and,
in turn, restoration of the subcontract between OJS and Pre-
ferred 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 Re-
spondents be required to 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. Re-
spondents shall be allowed at the compliance stage of the pro-
ceedings to provide evidence any previously unavailable evi-
dence that the restoration remedy is unduly burdensome.81
Further, it is recommended that Respondents, having dis-
criminatorily 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, Flo-
res, Franco, Tapia, Useda, and any other similarly situated em-
ployees, 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 earnings and other benefits

80 See, e.g., We Can, Inc., 315 NLRB 170 (1994), citing Lear Sieg-
ler, 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).
computed on a quarterly basis from the dates of discharge to the
date of proper offers of reinstatement less any net interim earn-
ings, 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 Riv-
er Medical Center, 356 NLRB 6 (2010).
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 regardless of whether those ex-
penses exceed their interim earnings. Search-for-work and in-
terim 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.
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).
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 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
ORDER
The Respondents Preferred Building Services, Inc. and Ra-
fael Ortiz d/b/a Ortiz Janitorial Services, their officers, agents,
and representatives, shall
1. Cease and desist from
(a) Telling employees who were picketing they were not go-
ing to be working anymore.
(b) Asking employees who were engaging in protected, con-
certed 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.
(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.

82 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD36
(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 be-
cause 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.
(i) 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.
(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 facilities where Respondents
held janitorial service contracts.
(k) Terminating the subcontract between Preferred and OJS
for janitorial cleaning services at 55 Hawthorne and 631 How-
ard Street in San Francisco, California because employees as-
sisted 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.
(l) Based on termination of the contracts, discharging em-
ployees Carlos Cruz, Juana Cruz, Zenayda Flores, Rosa Franco,
Claudia Tapia, Yunuen Useda, and any other similarly situated
employees because employees assisted the Union and engaged
in concerted activities and to discourage employees from en-
gaging in these activities.
(m) In any other manner interfering with, restraining, or co-
ercing employees in the rights guaranteed to them by Section 7
of the Act.
2. Take the following affirmative action necessary to effec-
tuate 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 Fran-
co, Balbina Mendoza, Claudia Tapia, Yunuen Useda, and any
other similarly situated employees full reinstatement to their
former jobs or if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority or any
other rights or 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.
9b) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful actions against these em-
ployees 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 addi-
tional time as the 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 rec-
ords, 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 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 Re-
gion 20, after being signed by the Respondents’ authorized
representative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous 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 event that, during the
pendency of these proceeding, the Respondents have gone out
of business or closed any operations involved in these proceed-
ings, or sold the business or facilities involved herein, the Re-
spondents shall duplicate and mail at their own expense, a copy
of the notice to all current employees and former employees
employed by the 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.
IT IS FURTHER ORDERED that the complaint is dismissed inso-
far as it alleges violations of the Act not specifically found.
Dated, Washington D.C. September 9, 2016
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 no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discharge you because you engage in concerted
actions such as picketing for better wages and working condi-
tions 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 en-
gaged in concerted activities or in order to chill union activity
at other facilities where we have janitorial contracts.

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
PREFERRED BUILDING SERVICES 37
WE WILL NOT restrain or coerce your Section 7 rights by tell-
ing 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 employ-
ee for any loss of earnings and other benefits suffered as a re-
sult 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 Direc-
tor 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 regard-
less 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 Fran-
co, 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.
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.