P.S. Elliott Services

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1161 (N.L.R.B. 1990)

1161
300 NLRB No. 162
P.S. ELLIOTT SERVICES
1 First Class Maintenance also provided cleaning services for the Buffalo
Evening News Building.
2 All dates are in 1989 unless otherwise indicated.
3 The Respondent is a corporation that provides cleaning services for various
companies in the western New York area. The majority of its accounts are
located in downtown Buffalo within close proximity of each other. The Re-
spondent employs approximately 175 employees who provide building-clean-
ing services for approximately 90 accounts.
P.S. Elliott Services, Inc. and Service Employees
International Union, Local 200C, AFL–CIO.
Case 3–CA–14901
December 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 12, 1990, Administrative Law Judge D.
Barry Morris issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering 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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The judge found that the Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to bargain with the
Union. In this regard, the judge found that the Re-
spondent was a successor employer to First Class
Maintenance and that the employees located at the
Brisbane Building constituted an appropriate unit for
bargaining. The judge further found that the Respond-
ent violated Section 8(a)(1) of the Act by stating to
prospective employees that it was ‘‘a non-union com-
pany.’’ For the reasons set forth below, we find, con-
trary to the judge, that the employees employed at the
Brisbane Building do not constitute an appropriate bar-
gaining unit and that, therefore, the Respondent’s re-
fusal to bargain with the Union did not violate Section
8(a)(5). We further find that the Respondent’s state-
ment to prospective employees did not violate Section
8(a)(1).
In 1986 First Class Maintenance was awarded the
contract for providing cleaning services at the Brisbane
Building located in Buffalo, New York.1 The Union
and First Class Maintenance entered into a collective-
bargaining agreement effective January 1, 1987, to De-
cember 31, 1989.
In early January 1989,2 the Respondent successfully
bid for the contract to perform cleaning services at the
Brisbane Building.3 On January 27 First Class Mainte-
nance informed its employees at the Brisbane Building
that they would be terminated.
Charity Edmundson, leadperson for the employees at
the Brisbane Building, contacted the Respondent’s
president, Phillip Elliott, and asked on behalf of herself
and the other employees if he would hire them. Elliott
offered Edmundson a job, and, based on her rec-
ommendation, met with the other First Class Mainte-
nance employees employed at the Brisbane Building.
During that meeting, the employees asked Elliott if it
would be a ‘‘union job,’’ and he replied, ‘‘we are a
non-union company.’’ Elliott subsequently hired seven
of the eight former First Class Maintenance employees
to continue performing cleaning services at the Bris-
bane Building.
The Respondent took over the cleaning services at
the Brisbane Building on February 1. On March 10 the
Union informed the Respondent that it had authoriza-
tion cards from all of the Brisbane Building employees
and demanded recognition. On March 13 the Respond-
ent rejected the Union’s demand, contending that the
Brisbane Building employees did not constitute an ap-
propriate unit for bargaining and that no collective-bar-
gaining agreement was in effect for that unit.
The judge found that the employees at the Brisbane
Building constituted an appropriate unit for bargaining.
The judge concluded that the employees employed at
the Brisbane Building by First Class Maintenance had
always been treated as a separate bargaining unit, find-
ing that a separate collective- bargaining agreement ex-
isted between First Class Maintenance and the Union
for the employees at the Buffalo Evening News Build-
ing. In light of the fact that the Brisbane Building em-
ployees had been treated as a separate unit, that ‘‘the
bulk’’ of the employees who were transferred from
First Class Maintenance to the Respondent continued
to work at the Brisbane Building, and that none of
these employees had been transferred out of the Bris-
bane Building, the Respondent had failed to sustain its
burden of overcoming the presumption of appropriate-
ness of a single facility unit.
The Respondent excepts, inter alia, to the judge’s
finding that the employees at the Brisbane Building
constitute an appropriate bargaining unit. It contends
that the maintenance employees who work at the Bris-
bane Building share a community of interest with the
Respondent’s other maintenance employees. The Re-
spondent asserts that there is no difference between the
terms and conditions of employment of the employees
at the Brisbane Building and those of the employees
at any other building where the Respondent performs
cleaning services; all employees are commonly super-
vised; there is frequent and regular interchange of em-
ployees; and that there is no history of site-by-site bar-
gaining in the maintenance industry or at the Brisbane
Building. We find merit in the Respondent’s excep-
tions.
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 In NLRB v. Burns Security Services, 406 U.S. 272, 280 (1972), the Court
observed, ‘‘It would be a wholly different case if the Board had determined
that because Burns’ operational structures and practices differed from those of
Wackenhut, the Lockheed bargaining unit was no longer an appropriate one.’’
5 The judge found that although First Class Maintenance’s collective-bar-
gaining agreement with the Union covered employees at two locations—the
Brisbane Building and the Buffalo Evening News Building—the agreement in
fact applied only to the Brisbane Building employees because First Class had
a separate collective-bargaining agreement with the Union for the Buffalo
Evening News Building employees. The Respondent excepts, contending that
there was no separate collective-bargaining agreement covering the Buffalo
Evening News Building employees and that historically the Brisbane Building
employees were not treated as a separate unit. In light of our finding that a
unit of Respondent’s Brisbane Building employees is not an appropriate unit,
we find it unnecessary to pass on the judge’s finding that a Brisbane Building
unit was appropriate under First Class Maintenance.
6 No Brisbane Building employee has been transferred to another site. Ac-
cording to the Respondent, it has not made any such transfers because of the
instant litigation.
7 Kessel Food Markets, 287 NLRB 426 (1987), relied on by the judge, is
distinguishable. The respondent in that case had no objective basis for stating
that its stores ‘‘would be’’ nonunion, and its statements were made in the con-
text of other 8(a)(1) and (3) violations.
Critical to a finding of successorship is a determina-
tion that the bargaining unit for the predecessor em-
ployer remains appropriate for the ‘‘successor’’ em-
ployer.4 The Board’s longstanding policy is that ‘‘a
mere change in ownership should not uproot bar-
gaining units that have enjoyed a history of collective
bargaining unless the units no longer conform reason-
ably well to other standards of appropriateness.’’ Indi-
anapolis Mack Sales & Service, 288 NLRB 1123 fn.
5 (1988). From our examination of the record, we find
that, even assuming a unit of Brisbane Building em-
ployees was an appropriate unit under First Class
Maintenance,5 it is not an appropriate unit under the
Respondent.
The Respondent services 90 cleaning accounts and
employs approximately 175 people. The management
hierarchy of the Respondent is composed of President
Elliott, a coordinator who reports directly to Elliott,
and five area supervisors, each of whom is assigned to
various accounts in a geographic area. These seven in-
dividuals work out of one central office.
At certain jobsites, where three or more employees
are needed, one of the employees is designated as
leadperson. It is undisputed that the leadpersons are
not supervisors within the meaning of the Act and that
all supervision is performed by the area supervisors,
who are in frequent contact with the sites under their
supervision.
All personnel matters are handled exclusively at the
Respondent’s central office. All hiring decisions are
made by Elliott or one of the area supervisors. Em-
ployees are not hired to staff a particular jobsite but
are hired based on the overall needs of the company.
The wage rates are determined by Elliott based on the
market conditions and the experience of the prospec-
tive employees. Fringe benefits and vacation benefits
are uniform for all employees.
The Respondent’s labor relations and employment
policies are centralized and determined by Elliott. All
employees are provided with the same rules and regu-
lations and are required to follow the same procedure
for completing and mailing time cards. Disciplinary
policies are consistent for all employees.
Employee interchange is regular and frequent. Em-
ployees are freely transferred between jobsites and at
least 50 percent of the Respondent’s employees have
been transferred from building to building.6 Elliott tes-
tified that at least six employees from other jobsites or
newly hired employees were assigned to the Brisbane
Building on either a permanent basis or a ‘‘fill-in
basis.’’ Further, one Brisbane Building employee opted
to work at another of the Respondent’s buildings in ad-
dition to her work in the Brisbane Building.
On the record as a whole, and particularly in light
of the facts that the Respondent’s personnel policies
and employee benefits are uniform and centrally ad-
ministered, that the Respondent’s operation is highly
integrated and centralized, that there is frequent em-
ployee interchange, and that there are no on-site super-
visors so that all employees are commonly supervised
out of the central office, we find that the employees
at the Brisbane Building do not have a community of
interest sufficiently distinct and separate from the Re-
spondent’s other employees to warrant the establish-
ment of a separate appropriate unit. See Indianapolis
Mack Sales & Service, supra; Second Federal Savings
& Loan, 266 NLRB 204 (1983); Orkin Exterminating
Co., 258 NLRB 773 (1981). It follows, therefore, that
the Respondent’s refusal to bargain with the Union for
a unit limited to Brisbane Building employees did not
violate Section 8(a)(5) and (1) of the Act, and we, ac-
cordingly, dismiss this complaint allegation.
Further, we find, contrary to the judge, that the Re-
spondent did not violate Section 8(a)(1) of the Act by
Elliott’s statement to the former First Class Mainte-
nance employees that it was ‘‘a non-union company.’’
Elliott’s statement was in response to an employee
question and was not accompanied by any threats, in-
terrogations, or other unlawful coercion. Further, in
light of the Respondent’s pre-existing operation as a
nonunion company, Elliott’s statement constituted a
truthful statement of an objective fact.7 Under these
circumstances, we find that Elliott’s statement was not
unlawful, and we, accordingly, dismiss this complaint
allegation.
ORDER
The complaint is dismissed in its entirety.
Doren Goldstone, Esq. and Mary Thomas Scott, Esq., for the
General Counsel.
Michael R. Moravec, Esq. (Phillips, Lytle, Hitchcock, Blaine
& Huber), of Buffalo, New York, for the Respondent.
1163P.S. ELLIOTT SERVICES
1 All dates refer to 1989 unless otherwise specified.
DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. This case
was heard before me in Buffalo, New York, on September
6, 1989.1 On a charge filed on March 27, a complaint was
issued on May 8 and amended on June 28, alleging that P.S.
Elliott Services, Inc. (Respondent) violated Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended (the
Act). Respondent filed an answer denying the commission of
the alleged unfair labor practices.
The parties were given full opportunity to participate,
produce evidence, examine and cross-examine witnesses,
argue orally, and file briefs. Briefs were filed by General
Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a New York corporation, with an office and
place of business in Kenmore, New York, is engaged in pro-
viding janitorial cleaning services. Respondent admits that
during the 12-month period ending April 13, 1989, it pro-
vided services valued in excess of $50,000 for other enter-
prises within the State of New York which are directly en-
gaged in interstate commerce. Respondent also admits, and
I so find, that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. In addi-
tion, Respondent admits, and I so find, that Service Employ-
ees International Union, Local 200C, AFL–CIO (the Union)
is a labor organization within the meaning of Section 2(5) of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues in this proceeding are:
1. Is Respondent a successor employer?
2. Are the employees located at the Brisbane Building an
appropriate unit for bargaining?
3. Did Respondent violate Section 8(a)(1) of the Act by
announcing to prospective employees that it would operate
nonunion?
B. The Facts
In 1986 First Class Maintenance was awarded the contract
for cleaning services at the Brisbane Building in Buffalo,
New York. Effective January 1, 1987, it entered into a col-
lective-bargaining agreement with the Union. The agreement,
which was effective until December 31, 1989, lists two sites
as being covered, the Buffalo News and the Brisbane Build-
ing. The record contains a separate agreement between First
Class Maintenance and the Union for the Buffalo Evening
News, effective January 1, 1984, through December 31,
1986. Tom Beatty, president of the Union, testified that there
was also a current agreement between First Class Mainte-
nance and the Union covering the employees at the Buffalo
Evening News. His testimony was not controverted.
Effective February 1, 1989, Respondent took over the
cleaning services at the Brisbane Building. On January 27
the First Class Maintenance Brisbane Building employees
were informed by their supervisor that they would be termi-
nated. Charity Edmundson, the leadperson of the employees,
asked on behalf of herself and the other employees, if they
could remain as employees of Respondent. Edmundson met
with Phillip Elliott, president of Respondent. Subsequent to
that a meeting took place between Elliott and the prior em-
ployees of First Class Maintenance. The employees asked El-
liott whether it would be a ‘‘union job.’’ Elliott replied that
it would not be. Seven of the eight employees were hired by
Respondent and continued performing the same cleaning du-
ties, with no break in service. Edmundson continued as
leadperson with Respondent.
On March 10 the Union served on Respondent a letter
stating that it had in its possession signed authorization cards
for all of the Brisbane Building employees and it demanded
negotiations. On March 13 Respondent, through its counsel,
rejected the Union’s demand for recognition, contending that
the employees at the Brisbane Building did not constitute an
appropriate unit for bargaining and that no collective-bar-
gaining agreement was in effect relating solely to the em-
ployees at the Brisbane Building.
C. Discussion and Conclusions
1. Successor employer
The Board has evolved a set of criteria to determine
whether legal successorship exists. The relevant questions in-
clude:
(1) Whether there has been a substantial continuity of
the same business operations; (2) whether the new em-
ployer uses the same plant; (3) whether he has the same
or substantially the same work force; (4) whether the
same jobs exist under the same working conditions; (5)
whether the employer employs the same supervisors;
(6) whether he uses the same machinery, equipment,
and methods of production; and (7) whether he manu-
factures the same product and offers the same services.
[J-P Mfg., Inc., 194 NLRB 965, 988 (1972); Band-Age,
Inc., 217 NLRB 449, 452–453 (1975), enfd. 534 F.2d
1 (1st Cir. 1976), cert. denied 429 U.S. 921.]
See also Canterbury Villa, Inc., 271 NLRB 144 (1984); Sys-
tems Management, 292 NLRB 1075 (1989).
Respondent began operations immediately upon the expira-
tion of the predecessor’s contract, with no hiatus. Wages for
the employees are virtually identical. The employees still
perform the cleaning services at the Brisbane Building as
they did for First Class Maintenance, and, indeed, some of
the employees did not even change floors. The employees
continued to work during the late afternoon and early
evening hours and there has been no change in their physical
surroundings. The employees use the same supplies and the
same type equipment and the leadperson has remained the
same at Respondent as she was under First Class Mainte-
nance. The employee complement remains substantially the
same. Respondent hired seven of First Class Maintenance’s
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eight employees, the eighth employee having declined em-
ployment and not having been replaced.
Based on the above, Respondent clearly meets the criteria
necessary for it to be deemed the legal successor of First
Class Maintenance.
2. Appropriate unit
Respondent contends that the employees at the Brisbane
Building do not constitute an appropriate unit. The record in-
dicates that for the period January 1, 1984, through Decem-
ber 31, 1986, a separate agreement existed between First
Class Maintenance and the Union for the employees at the
Buffalo Evening News. Although the record does not contain
a copy of the subsequent agreement, I have credited the testi-
mony of the Union’s president that at the time of the hearing
a separate agreement was in effect between First Class Main-
tenance and the Union, covering the employees of the Buf-
falo Evening News. The record contains no evidence to con-
trovert that testimony. Thus, since the employees at the Buf-
falo Evening News were covered by a separate agreement,
Respondent’s Exhibit 1, which is the collective-bargaining
agreement between First Class Maintenance and the Union
effective January 1, 1987, could relate only to the employees
located at the Brisbane Building.
In addition, it is well-established Board policy to find a
single-facility unit presumptively appropriate. Orkin Extermi-
nating Co., 258 NLRB 773 (1981). As the Board stated (id.):
This presumption can only be overcome by a showing
of functional integration so substantial as to negate the
separate identity of the single-facility unit. In making
findings on this issue, the Board looks to such factors
as central control over daily operations and labor rela-
tions, skills and functions of the employees, general
working conditions, bargaining history, employee inter-
change, and the geographical location of the facilities in
relation to each other.
Respondent has not sustained its burden of overcoming the
presumption. The record indicates that First Class Mainte-
nance had treated the employees at the Brisbane Building as
a separate unit. The bulk of the employees who had trans-
ferred from First Class Maintenance have continued to work
at the Brisbane Building, and others were not hired. Elliott
testified that other than one employee also doing some work
in another building, no employee has been transferred out of
the Brisbane Building. Based on the above, I find that the
employees at the Brisbane Building constitute an appropriate
unit for collective-bargaining purposes. See Eberhard Foods,
269 NLRB 280 (1984).
3. Violation of Section 8(a)(1)
Elliott testified that at his initial meeting with the employ-
ees he told them ‘‘we are a non-union company.’’ The com-
plaint alleges that this constitutes a violation of Section
8(a)(1) of the Act.
In Kessel Food Markets, 287 NLRB 426 (1987), the Board
held that informing the employees of a predecessor employer
that a Respondent would operate nonunion violated Section
8(a)(1) of the Act. The Board stated (at 429):
Burns and Howard Johnson hold that although a pur-
chasing employer has no obligation to hire the seller’s
unionized employees, it may not refuse to hire those
employees solely because they are union members or to
avoid being required to recognize the union. Under
Burns, the purchasing employer has an obligation to
recognize and bargain with the union if a majority of
the purchaser’s employees were previously employed
by the seller and were represented by the union. Thus,
the employer does not know whether it will be union
or nonunion until it has hired its work force. When an
employer tells applicants that the company will be non-
union before it hires its employees, the employer indi-
cates to the applicants that it intends to discriminate
against the seller’s employees to ensure its nonunion
status. Thus, such statements are coercive and violate
Section 8(a)(1).
Accordingly, I find that Respondent, by informing the
former First Class Maintenance employees that it was non-
union, violated Section 8(a)(1) of the Act. See also D & K
Frozen Foods, 293 NLRB 859, 874 (1989).
CONCLUSIONS OF LAW
1. P.S. Elliott Services, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Service Employees International Union, Local 200C,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. The appropriate unit for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act con-
sists of:
All building service employees of Respondent em-
ployed at the Brisbane Building, 403 Main St., Buffalo,
New York, but excluding professional employees and
supervisors as defined in the Act.
4. By failing to bargain with the Union as the exclusive
collective-bargaining representative of the employees in the
above-mentioned unit, Respondent has violated Section
8(a)(5) and (1) of the Act.
5. By informing job applicants that it intended to operate
nonunion, Respondent violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices constitute unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I find it necessary to order it to cease
and desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]