Professional Janitorial Service of Houston, Inc.

National Labor Relations Board - Administrative Judge Opinions

Aug 1, 2008

01-CA-025491 (N.L.R.B. Aug. 1, 2008)

JD(NY)–29-08
Houston, TX
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PROFESSIONAL JANITORIAL SERVICE OF HOUSTON, INC.
and Case Nos. 16-CA-25491
16-CA-25780
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 5
Jamal Allen, Esq. and Kelly Pagan, Esq., Counsel for the General Counsel.
Alexia Kulwiec, Esq., and Leslie Ward, Esq., counsel for the Charging Party.
Mark Jodon, Esq. and Timothy Rybacki, Esq., Littler, Mendelson, P.C., counsel for the
Respondent.
DECISION
Statement of the Case
Joel P. Biblowitz, Administrative Law Judge: This case was heard by me on April 30
and May 1, 2008 in Houston, Texas. The Consolidated Complaint herein which issued on
February 29, 2008, was based upon unfair labor practice charges that were filed on March 13,
20071 and August 29 by Service Employees International Union, Local 5, herein called the
Union. It alleges that on about October 1, 2006 Professional Janitorial Service of Houston, Inc.,
herein called the Respondent, was awarded the janitorial services contract at 580 West Lake
Park Blvd., Houston, Texas, herein called West Lake, which work was formerly performed by
the employees of Sanitors Services of Texas, L.P., herein called Sanitors, and that the
Respondent has since continued to operate the business of Sanitors at West Lake in basically
unchanged form, and has employed as a majority of its employees individuals who were
previously employees of Sanitors, and based upon these operations, Respondent is a
successor to Sanitors. The Complaint next alleges that all non-supervisory janitorial employees
employed by Sanitors excluding all other employees, including office employees, guards,
managers and supervisors as defined in the Act constitute an appropriate unit for collective
bargaining purposes, and that on about November 29, 2005 a majority of these employees
selected the Union as their collective bargaining representative, and from about November 29,
2005 to November 6, 2006, based upon Section 9(a) of the Act, the Union has been the
exclusive collective bargaining representative of these employees employed by Sanitors. On
about January 31 the Union requested that Respondent recognize and bargain with the Union
as the bargaining representative of these employees, but since about February 16, the
Respondent has failed and refused to recognize and bargain with the Union as the collective
bargaining representative of the West Lake unit.
The Complaint next alleges that all non-supervisory janitorial employees employed by
OneSource Facility Services, Inc., herein called OneSource, at 1415 Louisiana, Houston,
Texas, herein called Louisiana and/or the Wedge Building, excluding all other employees,
including office employees, guards, managers and supervisors as defined in the Act constitute
an appropriate unit for collective bargaining purposes, and that on about November 29, 2005 a
majority of these employees selected the Union as their collective bargaining representative,

1 Unless indicated otherwise, all dates referred to herein relate to the year 2007.
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and from about November 29, 2005 to November 13, 2006, based upon Section 9(a) of the Act,
the Union has been the exclusive bargaining representative of the employees employed by
OneSource at the Wedge. On about January 31 the Union requested that Respondent
recognize and bargain with it as the bargaining representative of these employees, but since
about February 16 the Respondent has failed and refused to recognize and bargain with the
Union as the collective bargaining representative of these employees.
It is further alleged that all non-supervisory janitorial employees employed by ABM
Janitorial Services, herein called ABM, at 5177 Richmond, Houston, Texas, herein called
Richmond, excluding all other employees, including office employees, guards, managers and
supervisors as defined in the Act constitute an appropriate unit for collective bargaining
purposes, and that on about November 29, 2005 a majority of the ABM employees at Richmond
selected the Union as their collective bargaining representative, and from about November 29,
2005 to December 1, 2006, based upon Section 9(a) of the Act, the Union has been the
exclusive bargaining representative of the employees of ABM at Richmond. It is alleged that at
all times since about December 1, 2006, based on Section 9(a) of the Act, the Union has been
the exclusive collective bargaining representative of Respondent’s employees in the unit, and
that on about April 3 the Union requested that the Respondent recognize and bargain with it as
the bargaining representative of these employees, but since about April 3 the Respondent has
failed and refused to recognize and bargain with the Union as the collective bargaining
representative of these employees. It is alleged that by refusing to recognize and bargain with
the Union as the collective bargaining representative of the employees in each of these three
units, the Respondent violated Section 8(a)(1)(5) of the Act. Respondent’s principal defenses
herein are that it is not a successor to Sanitors, OneSource or ABM in that it did not employ a
majority of the existing employees in each of these three locations and, additionally, that each
individual location does not represent an appropriate unit, and therefore there can be no finding
of a violation herein.
Findings of Fact
I. Jurisdiction
Respondent admits, and I find, that it has been an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
II. Labor Organization Status
Respondent admits, and I find, that the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
III. Background
This case involves the janitorial employees at West Lake, the Wedge Building and the
Richmond facility, all large office buildings located in Houston, Texas. For many years the Union
has conducted campaigns in major cities of the United States whose purpose is to organize
commercial office maintenance employees. The campaign is entitled “Justice for Janitors” and
has been successful in approximately twenty seven cities across the country. In 2004, the Union
targeted Houston and the major janitorial contractors employed in the city. On August 3, 2005
the Union signed a neutrality agreement with the five of the largest employers in the area.
Stated briefly, the agreement provided that a card check would be conducted by the American
Arbitration Association, herein called the AAA, and if it was determined that if a majority of the
unit employees of any of the signatories signed authorization cards for the Union, that employer
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or those employers were obligated to recognize and bargain with the Union as the collective
bargaining representative of the employer’s unit employees. This agreement states that it
covers non-supervisory janitorial employees employed in commercial buildings in excess of one
hundred thousand square feet in the “Houston area market.” As part of the agreement, the
Union agreed not to solicit employees while they were at work. Sanitors, OneSource and ABM
signed this agreement along with two other employers not involved herein; the Respondent did
not. The only unit exclusions are route janitors, who perform work at multiple locations, office
and supervisory employees.
A card check was conducted for the employees of Associated Building Service GCA, an
employer not involved herein, on November 16, 2005; on November 17, 2005, for the
OneSource employees; on November 21, 2005, for the Sanitors employees, and on November
29, 2005 for the ABM employees. On November 29, 2005, the Vice-President for Elections for
the AAA issued a Certification of Results stating: “Upon counting valid representation cards from
employees of the four contractors, it was determined that SEIU Local 5 met the 50% plus one
filing threshold with each contractor as outlined in the Neutrality Procedure Agreement.” These
four employers created an association and bargaining began in early April 2006; a collective
bargaining agreement, herein called the Agreement, was entered into later in the year and was
ratified by the Union membership on about November 21, 2006. Although the four employers
bargained through an association, and signed the same agreement, that Agreement states:
It is recognized that this agreement is between each company individually and the
Union, and the parties specifically agree that neither the Agreement nor the negotiations
leading thereto shall constitute evidence, or create any claim, of a multi-employer
bargaining association or multi-employer bargaining unit. To the contrary, the parties
agree that multi-employer bargaining does not exist among the parties.
The recognition clause of the Agreement states that each employer recognizes the Union as the
exclusive bargaining agent for “certain non-supervisory janitorial employees in the Houston,
Texas Area Market” employed at office buildings in excess of one hundred thousand square
feet, but excluding other designated properties, as well as route janitors who work at multiple
locations, office employees and supervisors as defined in the Act. Dan Schlademan, Vice
President of Service Employees International Union No. 1, testified that, although the
Agreement does not specifically refer to Day Porters/Maids, who perform cleaning and
maintenance work during the day, sometimes at the request of the tenants, they are included in
the unit along with full-time or part-time employees, and day and evening employees. The
Agreement further states that seniority shall be determined by job location.
In about late Summer or early Fall of 2006 there was some discussions during
bargaining about the possibility that some of the newly organized contractors might be replaced
at some buildings by a non-union contractor. The contractors told the Union representatives that
by raising wages and other benefits their cost of doing business would increase and make it
easier for nonunion employers to take work away from them. Shortly thereafter, the Union
received notice from Sanitors that they had received notice of termination of their contract at
West Lake, and in about October 2006 the Union received notice from OneSource that they
were losing the contract at the Wedge Building and that the Respondent had obtained the
contract to perform the maintenance work at both buildings. In both situations, the Union
employed its “normal protocol,” instructing the unit employees at these facilities to apply for
employment with the Respondent. On January 31, 2007, Schlademan wrote to Brent Southwell,
CEO of the Respondent:
As you should know, SEIU is the exclusive bargaining representative of the janitorial
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employees at the following locations in Houston, Texas: [the Wedge Building, West Lake
and four other buildings not involved herein].
As you also know it has come to our attention that PJS has obtained the cleaning
accounts at these locations, previously cleaned by Union Signatory Employers. PJS is
accordingly a successor employer, and is obligated under law to engage in collective
bargaining with SEIU.
Please contact me within 10 business days so that we may begin the bargaining
process. Please do not hesitate to contact me should you have any questions or need
additional information.
Southwell responded to Schlademan by letter dated February 16, 2007:
I am in receipt of your January 31, 2007 letter. PJS is not a successor employer. PJS
has no obligation to bargain with the SEIU. PJS has no obligation to recognize the SEIU
as the exclusive bargaining representative of the PJS employees who work in the
locations identified in your letter.
Furthermore, the SEIU never had majority support of these employees at the time PJS
started cleaning the locations identified in your letter.
In about January or February 2007, the Union was notified by unit employees at the
Richmond Building that ABM had lost the contract to perform janitorial services at the building,
and that the Respondent would be performing the work at the building. As a result, on April 3,
2007, Schlademan sent a letter to the Respondent that was, basically, identical to his January
31, 2007 letter, except that it named the Richmond Building. The Union received no response to
this letter.
IV. The Facts
A. Preliminary Issues
The issue herein is whether the Respondent is a successor to Sanitors at West Lake,
OneSource at the Wedge, and/or ABM at the Richmond Building. This determination is initially
dependent upon whether the Respondent employed a majority of the unit employees at each of
these facilities on the appropriate date, and whether certain job classifications, such as day
porters and maids and floaters, should be included or excluded from this determination. Finally,
the Respondent defends that even if it employed a majority of the predecessor’s employees on
the appropriate date, it is not obligated to recognize and bargain with the Union because the
Respondent’s operation lacked substantial continuity with the predecessors’ operations, and the
unit is an not an appropriate one. In making these determinations, each of the three buildings
employee complements will be discussed separately, and comparisons of the employee
complements will be made as of the dates of the transfer of operations, as well as the dates
when the Union requested recognition.
A further preliminary issue requiring discussion is the existence of two summaries of
employees employed at West Lake, Louisiana and Richmond on the date it commenced
operations at these facilities, as well as a listing of “Present Day” employees at these facilities
that was prepared by the Respondent. Glenda Agietos, Respondent’s Human Resources
Manager, provided an affidavit to the Board during the investigation of this matter. Attached to
her affidavit were lists of non-supervisory employees that Respondent employed when it
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commenced operations at West Lake, Louisiana and Richmond, as well as lists of the “present
day” complement of employees at these locations. These lists were received in evidence as
General Counsel’s Exhibits 20, 22, and 24 through 27. Agietos testified that in compiling these
lists, she reviewed the payroll records and consulted with Jose Menjivar, Respondent’s Vice
President of Operations, who agreed that these documents “were true and correct.” In addition,
by letter dated May 9, counsel for the Respondent provided the Board with its statement of
position in this matter. Attached to this statement of position were the identical employee lists
that were attached to Agietos’ affidavit (GC Exh. 20, 22 and 24 through 27). At the hearing,
however, the Respondent, through Agietos, moved into evidence (as Respondent Exh. 3, 4 and
5) three different lists that she identified as the staffing at West Lake, Louisiana and Richmond.
Counsel for the General Counsel and counsel for the Charging Party objected to these
summaries arguing that the prior summaries represented the correct listing of employees at
these buildings. Briefly stated, I found Agietos’ attempted explanation for the latter lists unclear,
at times, contradictory, and not credible. It is clear that Respondent Exh. 3, 4 and 5 include
employees not previously included on GC Exh. 20, 22 and 24 through 27, but Agietos never
satisfactorily explained why they were included on the former, but not the latter lists, and why
the original list prepared by the Respondent needed to be corrected. Further, counsel for the
Respondent attached the original employee lists to its statement of position to the Board on May
9. As I can find no convincing explanation as to why the original lists (GC Exh. 20, 22 and 24
through 27) were incomplete and had to be corrected, and as of May 9 the Respondent
continued to believe that these lists were correct, I have used these lists prepared by the
Respondent as the true and correct lists of employees at these locations, rather than the lists it
later prepared- Respondent Exh. 3, 4 and 5.
Another issue that needs discussion prior to an analysis of the composition of the units
before and after the Respondent obtained the contracts to perform the maintenance work at
these locations, is the inclusion or exclusion of Day Porter/Maids. While a large majority of the
maintenance employees work in the evening from about 5:30 to 9:00 or 10:00, in the absence of
the tenants of the building, a few employees work at each of these buildings during the day to
perform repair or maintenance work at the request of, or for the immediate benefit of, the
tenants. So, for example, if the air conditioner malfunctions, a toilet gets clogged, or light bulbs
need replacing, the tenant will notify building management, who will notify the Day Porter/Maid
of the maintenance problem and the employee will, presumably, repair the malfunction.
Although the Agreements do not refer to Day Porter/Maids, Schladerman’s credible
uncontradicted testimony establishes that the units included them, as well as day and evening
employees, full and part-time employees.
Maria Dominguez, Enrique Sapon, Alejandro Hernandez and Rogelio Alcantar, were
each employed as Day Porters/Maids by the Respondent, as well as the predecessor
employers- ABM for Dominguez and Sapon, and OneSource for Hernandez and Alcantar. They
testified that they continued to perform the same work for the Respondent that they performed
for OneSource and ABM. Their testimony establishes that the principal differences in their work
and the work of the other maintenance employees is that they work during the day, usually 8
a.m. to 5 p.m. or 9 a.m. to 5 p.m., take orders from an employee of the building, rather than their
employer, and use supplies and tools supplied by the building. There is no evidence that these
Day Porters/Maids have any contact, or interchange with, the evening janitorial workers at the
buildings. Dominguez testified that she cleans the doors and the elevator, checks to make sure
that the bathroom has its required supplies, and performs other jobs requested by the building
engineer. Sapon testified that he picked up the trash in the parking area, changed light bulbs
when necessary and answered calls from the secretary of work that needed to be done.
Hernandez testified that his principal responsibility was maintenance of the air conditioning,
electrical and plumbing. In this regard, he repairs sinks and other plumbing issues, and fixes the
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thermostats and the air vents. Alcantar testified that he performs electrical work at the building,
plumbing work in the bathrooms, checks the air conditioning system, moves furniture and
picture frames. He does not clean restrooms, vacuum or wax floors.
Determining whether Day Porters/Maids are a part of the bargaining unit of the janitorial
service employees at each of the buildings depends on whether they have a community of
interest with each other. I find that they do. Although they work different shifts and have different
supervision (the Day Porters/Maids are supervised by the building manager), they basically
perform the same work at the same location, with the same equipment. In addition, the
uncontradicted credible testimony of Schlademan and Christine Prescott, human resources
director for ABM and Kari Huber, a manager for OneSource, establishes that they were included
in each of the units prior to the Respondent obtaining the contracts to perform the work at these
locations. I therefore find that Day Porters/Maids should be included in the unit at each of these
locations.
There is also an issue of the inclusion or exclusion of “floaters.” Menjivar testified that
floaters go “…from building to building, wherever we need him. I guess that’s where the term
‘floater’ comes in.” Floaters cover for the housekeepers who are out sick, on vacation, or are
absent for any other reason. In addition, some of the floaters are trained to perform specialty
work, such as waxing, and perform that work at whatever building requires it. Because the
floaters do not work in any one location, and replace absent employees, I find that they do not
have a community of interest with the other employees in the building and should not be
included in any of the units discussed below.
In addition to the obvious mathematical determination of majority status, it must be
determined at what date/dates to determine majority status and what group or groups of
employees represent an appropriate unit herein. As to the first issue, the law is clear and was
stated succinctly in Royal Midtown Chrysler Plymouth, Inc., 296 NLRB 1039, 1040 (1989):
Successorship does not automatically carry with it the obligation to bargain with the
union that represented the predecessor’s employees. Nor does the fact that the union
represents a majority of the successor’s employees in an appropriate unit operate alone
to invoke the bargaining obligation; and this is so even when the successor has attained
a “substantial and representative complement” of employees. The bargaining obligation-
albeit potentially present when successorship and representative complement are
established- must be triggered by a demand for recognition or bargaining.
The Supreme Court stated in Fall River Dying & Finishing Corp. v. NLRB, 482 U.S. 27, 52: “The
successor’s duty to bargain at the ‘substantial and representative complement’ date is triggered
only when the union has made a bargaining demand.” Similarly, the administrative law judge in
Paramus Ford, Inc., 351 NLRB No. 53, slip op. 5 (2007), stated: “The Board will normally
assess whether an employer is a successor as of the time a union makes its demand for
recognition and bargaining, provided the employer has already hired a substantial and
representative complement of employees.” Based upon the above, as the Union’s bargaining
request for West Lake and Louisiana was dated January 31, and its bargaining request for
Richmond is dated April 3, those are the dates for determining the Union’s majority status
among the employees at those locations, as it seems clear that by those dates the Respondent
employed a substantial and representative complement of employees at each of these
locations.
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B. West Lake
Sanitors had the janitorial service contract for West Lake until November 6, 2006, when
the Respondent obtained the contract to perform the work at that facility2. The Respondent
identified the following sixteen employees as being employed at West Lake when it commenced
operations there on November 6, 2006:
Cruz Ardon Vacuum Specialist
Alejandra Barrios Restroom Specialist
Douglas Cruz Cleaner
Maria Flores Night Time Cleaner
Claudia Garcia Cleaner
Martha Gonzales Light Duty
Elmer Guevara Cleaner
Esmeralda Guevara Night Time Cleaner
Samuel Hernandez Utility Specialist
Jose Linares Vacuum Specialist
Eduardo Palomera Floor Man
Omar Perez Floor Man
Maria Reyes Day Porter/Maid
Ricardo Rios Cleaner
Juvel Vargas Light Duty
Cindy Velasquez Day Porter/Maid
Sanitor’s records state that, of these employees, it employed the following employees at
West Lake at the time that it lost the contract to perform the maintenance work at the facility on
November 6, 2006:
Douglas Cruz
Maria Flores
Claudia Garcia
Martha Gonzales
Elmer Guebara, a/k/a Guevara
Jose Linares
Eduardo Palomera
Ricardo Rios
Juvel Vargas
In addition, as alleged by Counsel for the General Counsel in his brief, Sanitors issued a W-2 to
a Maria Reyes in 2006 setting forth wages of almost $16,000. The address and social security
number from her W-2 match those from Respondent’s records.
As stated above, the Union’s request for recognition at West Lake is dated January 31.
Pursuant to the Respondent’s summary, two of its employees at West Lake when it commenced
operations on November 6, 2006, Esmerelda Guevara and Samuel Hernandez left the
Respondent’s employ at West Lake prior to January 31. I therefore find that on November 6,
2006, when the Respondent took over the maintenance work at West Lake, ten of the sixteen
employees that it employed at that facility had previously worked at that facility for Sanitors. I

2 The Respondent lost the contract to perform this work at West Lake in November 2007. It
therefore claims that the successorship issue relating to West Lake is moot.
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further find that on January 31, when the Union requested recognition at that facility, fourteen
employees were employed at West Lake, ten of whom had previously been employed there by
Sanitors.
Counsel for the General Counsel, in his brief, alleges that the situation at Louisiana and
Richmond was different than West Lake in that when the Respondent commenced operations at
these two locations, its initial employee complement was not composed of a majority of
employees previously employed by the predecessor employers, OneSource and ABM, but that
by the time the Union requested recognition at these locations, January 31 for Louisiana and
April 3 for Richmond, a majority of the employees at these buildings was composed of former
employees of OneSource and ABM at these locations.
C. Louisiana
OneSource had the janitorial service contract for Louisiana until November 13, 2006,
when the Respondent obtained the contract to perform this work. The Respondent identified the
following twelve employees as being employed at Louisiana when it commenced operations at
that facility on November 13, 2006:
Martha Aburto Light Duty
Cruz Ardon Vacuum Specialist
Rosalva Arias Day Porter/Maid
Irma Barajas Light Duty
Guillermo Garza Vacuum Specialist
Norberto Mata Cleaner
Juan Mejia Utility Specialist
Diana Moreno Light Duty
Rosa Moreno Light Duty
Omar Perez Floor Man
Imenda Torres Vacuum Specialist
Dalia Villeda Light Duty
OneSource’s payroll records state that, of these employees, it employed Garza and Mejia prior
to losing the contract to Respondent. Of these twelve employees listed above, Barajas (on
January 30), Diana Moreno (on January 17), and Torres (on November 28, 2006) left the
Respondent’s employ at Louisiana prior to January 31. Respondent’s “Present Date”
employment list for Louisiana lists the following fifteen employees:
Lazara Almanza Light Duty
Rosalva Arias Day Porter/Maid
Ana Campos Light Duty
Trinidad Contreras Light Duty
Walter Coronado Utility Specialist
Guillermo Garza Vacuum Specialist
Maria Medina Restroom Specialist
Juan Mejia Utility Specialist
Rosa Moreno Light Duty
Arturo Ramirez Utility Specialist
Mark Ramirez Vacuum Specialist
Ramiro Rodriguez Vacuum Specialist
Samuel Ruiz Vacuum Specialist
Orlando Savacay Vacuum Specialist
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Cristina Uribe Light Duty
In addition to Garza and Mejia, of these employees, the following employees had been
employed by OneSource prior to losing the contract at Louisiana: Lazara Almanza, Arturo
Ramirez, Samuel Ruiz and Orlando Saracay. Further, although not contained on the
Respondent’s Present Day List for Louisiana, Jesus Fuentes had been employed by OneSource
as a Day Porter at Louisiana from October 2005 until it lost the contract at Louisiana, and the
parties stipulated that Fuentes has been continuously employed by the Respondent at
Louisiana since November 13, 2006, when Respondent obtained the contract to service the
building. Also not contained on Respondent’s “Present Day” list for Louisiana, Alejandro
Hernandez testified that he had previously been employed by OneSource as a Day
Maintenance Employee at Louisiana for about two years and when they lost the contract, he
began working for the Respondent, taking direction from the same supervisor as when he was
employed by OneSource. Hernandez also testified that he is familiar with employee Yane
Campos, and that she was employed by OneSource at Louisiana prior to his employment at the
building and continued to work there “for a few months” after the Respondent took over the
maintenance at the building. Regilio Alcantar testified that he was employed by OneSource as a
Day Maintenance Employee at Louisiana for about ten months until they lost the contract. At
that time he began working for the Respondent at Louisiana performing the same work that he
had done for OneSource.
Based upon the above, I find that at the time that the Union made its request for
bargaining on January 31, the Respondent employed nineteen unit employees at Louisiana: the
fifteen on the list plus Fuentes, Alejandro Hernandez, Yane Campos and Regilio Alcantar, and
that ten of them had previously been employed at that location by OneSource.
D. Richmond
The Respondent acquired the contract to perform maintenance work at Richmond
effective December 1, 2006; the Union’s letter to the Respondent requesting recognition is
dated April 3. The Respondent identified the following eighteen employees as those whom it
employed when it began operations at Richmond on December 1, 2006:
Gloria Aguirre Lead Cleaner
Heriberto Alvarado Vacuum Specialist
Marina Benites Light Duty
Ancelmo Castro Vacuum Specialist
Rosalva Cruz Light Duty
Jesus Gonzales Vacuum Specialist
Teresa Gutierrez Light Duty
Carmen Hernandez Light Duty
Virginia Hernandez Day Porter/Maid
Maria Luna Restroom Specialist
Adriana Manchu Light Duty
Diego Mazariegos Vacuum Specialist
Vincent Medrano Vacuum Specialist
Fredy Rosales Light Duty
Bacillo Ruiz Light Duty
Lorena Solorzano Light Duty
Juan Tax-Tzoc Vacuum Specialist
Maria Vallecios-Hernandez Vacuum Specialist
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The following employees in the original complement of employees of the Respondent at
Richmond were previously employed by ABM at that location:
Rosalba Cruz (Martinez)
Heriberto Alvarado
Marina Benites
Carmen Hernandez
Maria Luna
Diego Mazariegos
Of these employees, the following separated their employment at the facility prior to April 3:
Castro (December 22, 2006), Gutierrez (December 5, 2006), Mazariegos (February 21),
Medrano (December 19, 2006), Ruiz (March 17), Solorzano (December 5, 2006), Tax-Tzoc
(March 19), and Vallecios-Hernandez (January 3).
The “Present Day” complement of employees at Richmond compiled by the Respondent lists
the following:
Heriberto Alvarado Vacuum Specialist
Marina Benites Light Duty
Jesus Cardozo Day Porter/Maid
Francisco Caxaj Vacuum Specialist
Rosalva Cruz Light Duty
Carmen Hernandez Light Duty
Virginia Hernandez Day Porter/Maid
Maria Luna Restroom Specialist
Adriana Manchu Light Duty
Juan Morales Vacuum Specialist
Santos Robles Vacuum Specialist
Omar Rodriguez Vacuum Specialist
Fredy Rosales Light Duty
Of these thirteen employees of the Respondent, the following seven had been employed by
ABM at Richmond: Alvarado, Benites, Cardozo, Cruz, Hernandez, Luna and Juan Morales. As
regards Morales, Christine Prescott, the regional human resources director for ABM, testified
that he was employed by ABM at Richmond until mid-September 2006 and was not employed
by ABM at that facility at the time that they lost the contract on November 30, 2006. However,
an examination of the payroll records of ABM and the Respondent establish that the Juan
Morales who was employed by ABM at Richmond until mid-September, 2006, is the same
individual who was hired by the Respondent at that facility on December 20, 2006. Morales was
not employed at Richmond by ABM immediately prior to the Respondent obtaining the contract
to perform the work at Richmond on December 1. In fact, he had ceased his employment with
ABM over two months earlier. The Board counts employees such as Morales toward a union’s
majority status of the successor employer if the employee’s absence was “not a self-initiated
withdrawal from the work force” or “an abandonment of interest in the unit.” Derby Refining
Company, 292 NLRB 1015, 1016 (1989). As Counsel for General Counsel did not elicit any
evidence explaining Morales’ absence from mid-September through December 20, 2006, I
agree with counsel for the Respondent in his brief and find that he should not be included in
determining the Union’s majority status at Richmond. In addition to the named employees, both
ABM and the Respondent employed Day Porters/Maids at Richmond. Maria Dominguez and
Enrique Sapon each testified that they originally worked for ABM as a porter at Richmond and
continued performing the same job for the Respondent when it obtained the contract to perform
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the maintenance work at Richmond. I therefore find that at the time that the Union requested
recognition and bargaining at Richmond, Respondent employed twelve janitorial employees and
two Day Porters/Maids, for a total of fourteen employees. Eight of these employees had
previously been employed by ABM. I therefore find that a majority of the Respondent’s
employees at Richmond had previously been employed by the predecessor, ABM.
V. Analysis
There are numerous issues herein that must be analyzed in determining whether the
Respondent is a successor to Sanitors at West Lake, OneSource at Louisiana and/or ABM at
Richmond.
In NLRB v. Burns Security Services, Inc., 406 U.S. 272, 283 (1972), the Supreme Court
found that where the bargaining unit was unchanged from predecessor to the successor, and a
majority of the successor’s employees had previously been employed by the predecessor, the
Board could not be faulted for ordering the new employer to bargain with the union. In Fall
River, supra, at 43, the Supreme Court stated that the focus of these cases should be “based on
the totality of the circumstances of a given situation,” whether the successor employer has
“…continued without interruption or substantial change, the predecessor’s business operations.”
The Court further stated that in determining whether there has been “substantial continuity”
between the operations of the predecessor and successor employers, the Board should
examine a number of factors: whether the business of both employers is essentially the same,
whether the employees are performing the same jobs for the same supervisors and under the
same working conditions, and whether the successor employer is employing the same
production process, and producing the same product for the same customers. There can be no
doubt that the Respondent’s operations at the three locations satisfies all of these factors. The
“business” of Sanitors, OneSource and ABM was to clean office buildings; Respondent’s
business is the same. A number of the employees testified about the work they performed for
the Respondent as well as their former employer.
Maria Dominguez who initially worked for ABM and then for the Respondent at
Richmond, testified that the work was “the same” for both and she reported to the same building
supervisor while employed by both ABM and the Respondent. Heriberto Alvarado, who was
employed at Richmond by ABM, then by the Respondent, testified that his job responsibilities
and tools were the same for both employers. The only difference was that he worked an extra
half hour a day for the Respondent. He had never transferred to work in another building and, to
his knowledge, neither had other employees at the facility. Juan Mejia, who had been employed
at Louisiana by OneSource, then by Respondent, testified that his work at both was: “The same.
Vacuum and mop the kitchen.” His work days were the same for both, but he worked an
additional half hour a day for the Respondent. During his employment with the Respondent,
neither he nor any other employee, as far as he knows, was transferred to work in another
building. Enrique Sapon, who was also employed at Richmond by ABM, then by Respondent,
testified that the work he performed for both was “essentially the same.” Alejandro Hernandez,
who was employed by OneSource then by the Respondent at Louisiana, testified that the work
that he performed for both was “exactly the same” with the same building manager supervising
him. Regilio Alcantar, who had been employed first by OneSource and then by the Respondent
at Louisiana, testified that the work for both was “… all the same, doing the same thing.” It is
clear from the above that the employees are performing the jobs and under the same working
conditions for the Respondent as they did for Sanitors, OneSource and ABM. It is also clear that
the Respondent is producing the same product (cleaning) for the same customers (West Lake,
Louisiana and Richmond) as did Sanitors, OneSource and ABM.
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As for the remaining factor in Burn, supra, whether the alleged successor is employing
the same production process, the Respondent alleges a difference in this area because of its
unique cleaning system, its OS1 Cleaning system. Menjivar testified that the Respondent
employs this uniform cleaning system, company-wide, and it is the only company in the Houston
area employing the system. It is employed at all its locations, including the ones involved herein.
The system employs unique equipment, such as vacuums and vacuum bags, as well as mop
buckets, wringers and chemicals. Further, all of its employees receive approximately two hours
training in the operating system which has distinctive features not employed by any other
cleaning contractor in the area. Unlike other cleaning contractors whose employees perform all
the cleaning tasks in a certain area, known as zone cleaning, the Respondent’s employees
spend all their time on specific tasks. Some employees vacuum for the entire four hours, others
are on light duty, responsible for picking up trash and doing the dusting, and the utility specialist
sweeps and mops the floors. Although this OS1 system may be unique to the area, even if it is
superior to the zone cleaning system apparently employed by other cleaning contractors,
something I am not competent to rule on, its purpose is still to clean office buildings. Further, the
individuals referred to above who were employed by both ABM and the Respondent testified
that their work was the same under both employers. In Tree-Free Fiber Co., 328 NLRB 389
(1999), the Board stated: “The Supreme Court has made it quite clear that the ‘substantial
continuity’ analysis in successor cases is to be taken primarily from the prospective of the
employees, i.e., whether ‘those employees who have been retained will understandably view
their job situations as essentially unaltered.’” Citing Fall River, supra, at 43, and Golden State
Bottling Co. v. NLRB, 414 U.S. 168. 184 (1973). See also The Lincoln Park Zoological Society,
322 NLRB 263, 264 (1996).
On the basis of all of the above, including the fact that a majority of the employees of the
Respondent at the critical time had previously been employed by Sanitors, OneSource or ABM,
and viewed their work as, basically, unchanged, I find that the Respondent is a successor
employer to Sanitors at West Lake, OneSource at Louisiana, and ABM at Richmond. Burns and
Fall River, supra. The Respondent defends, however, that even if it employed a majority of the
predecessors’ employees at each of these three locations, and even if there is a substantial
continuity between the predecessors’ operations and its operations, it is not a successor
employer obligated to recognize and bargain with the Union because West Lake, Louisiana and
Richmond are not, individually, appropriate units, i.e., because of the unified nature of the
Respondent’s operation, only a Houston-wide unit of Respondent’s locations is appropriate.
In Trane, an Operating Unit of American Standard Companies, 339 NLRB 866, 870
(2003), a representation case, the Board stated that it has long held that a petitioned-for single
facility unit is presumptively appropriate “…unless it has been so effectively merged into a more
comprehensive unit, or it is so functionally integrated, that it has lost its separate identity.” The
party opposing the single location unit bears a heavy burden of rebutting its presumptive
appropriateness. The factors that the Board examines to determine whether this burden was
satisfied include (1) central control over daily operations and labor relations, including the extent
of local autonomy; (2) similarity of employee skills, functions and working conditions; (3) the
degree of employee interchange; (4) the distance between the locations; and (5) bargaining
history, if any exists. In November or December 2006, the Respondent employed approximately
eight hundred fifty employees in the one hundred fifty buildings that it serviced in the Houston
area. As regards the central control of labor relations, Agietos testified that the Respondent has
a centralized HR department in its main office in Houston; the Respondent does not maintain
any HR office, or HR employees at West Lake, Richmond or Louisiana. Respondent’s payroll
department is also centralized with common payroll practices, policies, vacations and holidays,
and wage ranges for all its locations, including the three involved herein. Further, Respondent
maintains its payroll records centrally, rather than at any of the buildings that it services and
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employs a standard employment application for all locations.
At each of these three buildings Respondent employs a project manager with an office at
the building in which they are employed. Received in evidence were five Employee Warning
Notices for attendance violations that were issued to employees at Louisiana by the local
supervisors in June. Other than these warning notices, there is no clear evidence of what
authority, if any, is held by these local supervisors, although Agietos testified that the building
supervisors and area managers “…will come to me for counsel…to determine if there’s
misconduct and disciplinary action is warranted.” As regards the similarity of skills, there is little
or no question that this is present in the three buildings involved herein as well as all of the
buildings that the Respondent maintains. Agietos testified that all employees receive the same
orientation and training and the work of all seems to be quite similar. The degree of employee
interchange is not as clear cut. Menjivar testified that the Respondent occasionally receives
requests from employees to transfer to a different building; this usually occurs if the employee
moved and found a building closer to where he/she lives. In those situations, the Respondent
reviews the request and honors the request if a position is available. He testified that employees
Anna Ramirez and Gloria Aguirre were given temporary transfers from the buildings that they
had been employed in to work in the Wedge Tower for about two weeks, but he cannot recall
why they were transferred. Arias, Alvarado, and Mejia testified that they have never been
transferred to work in another building by the Respondent, and Alvarado and Mejia also testified
that they know of no other employee of the Respondent who has transferred to another building.
Counsel for the Respondent, in his brief, refers to Resp. Exh. 9 to establish an interchange of
employees to different buildings maintained by the Respondent, in particular employees Virginia
Hernandez and Jesus Cardozo. I note that although both Hernandez and Cardozo worked in
more than one building maintained by the Respondent, some of the work performed in particular
buildings was “Tag Work”3, and for both, a large percentage of their work was in a single
building.
The next category, the distance between the locations, clearly works in the
Respondent’s favor. It had approximately one hundred fifty cleaning accounts in the area, some
a mile or two from the Richmond and Louisiana buildings. The final category, bargaining history,
is more difficult. The employers originally involved in the Union’s organizational attempt formed
an association that bargained with, and eventually agreed upon a contract with the Union.
However, that contract specifically stated that multi-employer bargaining does not exist among
the parties, and it was in effect for a short period of time at West Lake, Louisiana and
Richmond, when the Respondent obtained the contract to perform the maintenance work at
these locations.
I find that the Respondent has not sustained its burden of rebutting the appropriateness
of the West Lake unit, the Louisiana unit and the Richmond unit. The cases are clear that it is
not necessary that the requested unit be the most appropriate unit, or that there are no others
that are more appropriate. All that is required is that the requested unit be an appropriate unit.
Phoenix Resort Corporation, 308 NLRB 826, 827 (1992); Hartford Hospital, 318 NLRB 183, 191
(1995); J.C. Penny Company, Inc., 328 NLRB 766 (1999). I believe that it is clear from the
above that while a Houston area-wide unit of the Respondents maintenance employees would
be an appropriate unit, West Lake, Louisiana and Richmond each also represents an
appropriate unit. In addition, as the evidence establishes that the Respondent maintained, at

3 “Tag work” is work requested by the customer that is outside the scope of the work
specified in the contract. For the most part it is specialty work performed by special service
personnel, and the customer pays extra for this work.
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least, local autonomy at each of these buildings that is an additional reason for finding them to
each be appropriate units. North Hills Office Services, 342 NLRB 437, fn. 3 (2004).
Based upon all of the above, I find that the Respondent has violated Section 8(a)(1)(5) of
the Act by failing to recognize and bargain with the Union as the bargain representative of the
maintenance employees at West Lake, Louisiana and Richmond facilities.
Conclusions of Law
1. The Respondent has been an employer engaged in commerce within the meaning of
Section 2(2), (6) and (7) of the Act.
2. The Union has been a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent is a successor to Sanitors, OneSource and ABM at each of the
following: the West Lake facility, the Louisiana facility, and the Richmond facility.
4. The following employees of the Respondent constitute an appropriate unit for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act:
(a) All non-supervisory janitorial employees employed at 580 West Lake Park Boulevard,
Houston, Texas, but excluding all other employees, including office employees, guards,
managers and supervisors as defined in the National Labor Relations Act.
(b) All non-supervisory janitorial employees employed at 1415 Louisiana, Houston,
Texas, but excluding all other employees, including office employees, guards, managers
and supervisors as defined in the National Labor Relations Act.
(c) All non-supervisory janitorial employees employed at 5177 Richmond, Houston,
Texas, but excluding all other employees, including office employees, guards, managers
and supervisors as defined in the National Labor Relations Act.
5. By failing to recognize or bargain with the Union, the collective bargaining
representative of the employees in the above described appropriate units, the Respondent
violated Section 8(a)(1)(5) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I
recommend that it be ordered to cease and desist therefrom and to take certain affirmative
action necessary to effectuate the policies of the Act. In that regard I recommend that the
Respondent be ordered to recognize and bargain with the Union as the collective bargaining
representative of the unit employees at the locations involved herein, and if an agreement is
reached, reduce the agreement to writing. However, the evidence establishes that effective
November 16, 2007 the Respondent ceased performing the janitorial service at West Lake.
Counsel for the General Counsel in his brief argues that this does not foreclose me from issuing
an effective remedy herein for the West Lake facility. I disagree. While the remedy for Louisiana
and Richmond clearly would be an order to recognize and bargain with the Union, that remedy
would be a charade for West Lake because the Respondent has had no employees there for
over nine months and there would be nobody to bargain with, or to bargain for.
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On these findings of fact, conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, Professional Janitorial Service of Houston, Inc., its officers, agents,
successors and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Service Employees International Union, Local
5 as the exclusive collective bargaining representative of its employees employed at 580 West
Lake Park Boulevard, Houston, Texas,1415 Louisiana, Houston, Texas and 5177 Richmond,
Houston, Texas.
(b) In any like or related manner interfering with, restraining or coercing employees in the
exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Recognize and bargain with Service Employees International Union, Local 5 as the
exclusive representative of the employees employed at 1415 Louisiana and 5177 Richmond, in
Houston, Texas in the following appropriate unit concerning terms and conditions of
employment and, if an agreement is reached, embody the understanding in a signed
agreement:
All non-supervisory janitorial employees employed at 1415 Louisiana, Houston, Texas,
but excluding all other employees, including office employees, guards, managers and
supervisors as defined in the National Labor Relations Act.
All non-supervisory janitorial employees employed at 5177 Richmond, Houston, Texas,
but excluding all other employees, including office employees, guards, managers and
supervisors as defined in the National Labor Relations Act.
(b) Within 14 days after service by the Region, post at its principal office at 2303 Nance
Street, Houston, Texas, as well as at the Louisiana and Richmond buildings in Houston, Texas,
copies of the attached notice marked “Appendix.”5 Copies of the notice, on forms provided by
the Regional Director for Region 16, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and maintained for 60 consecutive days in
conspicuous places including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered,

4 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations,
the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the
Rules, be adopted by the Board and all objections to them shall be deemed waived for all
purposes.
5 If this Order is enforced by a judgment of a United States court of appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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defaced, or covered by any other material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed by the Respondent at any time since
January 31, 2007.
(c) 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 Respondent has taken to comply.
Dated, Washington, D.C., August 1, 2008.
________________________________
Joel P. Biblowitz
Administrative Law Judge
JD(NY)–29-08

APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT refuse to recognize Service Employees International Union, Local 5 (“the
Union”) as the exclusive bargaining representative of our employees employed at 580 West
Lake Park Boulevard, 1415 Louisiana and 5177 Richmond, Houston, Texas and WE WILL NOT
in any like or related manner interfere with, restrain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put in writing and sign any agreement
reached on terms and conditions of employment for our employees in the following bargaining
unit:
All non-supervisory janitorial employees employed at 1415 Louisiana, and 5177
Richmond, Houston, Texas, but excluding all other employees, including office
employees, guards, managers and supervisors as defined in the National Labor
Relations Act.
Professional Janitorial Service of Houston, Inc.
(Employer)
Dated______________ By_____________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
1919 Smith Street, Room 1545, Houston, Texas 77002-8051
Hours: 8:00 a.m. to 4:30 p.m.
713-209-4883.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 713-209-4885.