SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 87 (UNIVERSAL BUILDING MAINTENANCE)

National Labor Relations Board - Board Decisions

Apr 8, 2016

363 NLRB No. 161 (N.L.R.B. 2016)

363 NLRB No. 161
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Service Employees International Union, Local 87
(Universal Building Maintenance) and Rudis E.
Amaya
Service Employees International Union, Local 87
(Universal Building Maintenance) and Danitza
Cabrera
Service Employees International Union, Local 87
(Universal Building Maintenance) and Maria M.
Chavez
Service Employees International Union, Local 87
(Universal Building Maintenance) and
Margarito Aguilar
Service Employees International Union, Local 87
(Universal Building Maintenance) and Julia
Gonzales De Godinez
Service Employees International Union, Local 87
(Universal Building Maintenance) and Rubida
D. Aguilar De Pineda
Service Employees International Union, Local 87
(Universal Building Maintenance) and Segundo
Ignacio Jara
Service Employees International Union, Local 87
(Universal Building Maintenance) and Evelyn
Orellana
Service Employees International Union, Local 87
(Universal Building Maintenance) and Itzel
Anahi Revuelta Alcazar
Service Employees International Union, Local 87
(Universal Building Maintenance) and Gerardo
Alberto Sanchez
Service Employees International Union, Local 87
(Universal Building Maintenance) and Ana
Granados De Lozana
Service Employees International Union, Local 87
(Universal Building Maintenance) and Daniela
Revuelta
Service Employees International Union, Local 87
(Universal Building Maintenance) and Maria
Lourdes Sanchez
Service Employees International Union, Local 87
(Universal Building Maintenance) and Esther
Marin
Service Employees International Union, Local 87
(Universal Building Maintenance) and Javier
Lozano. Cases 20–CB–153693, 20–CB–153712,
20–CB–153724, 20–CB–153734, 20–CB–153752,
20–CB–153771, 20–CB–153795, 20–CB–153796,
20–CB–153801, 20–CB–153838, 20–CB–153851,
20–CB–153852, 20–CB–153901, 20–CB–153923,
20–CB–154065
April 8, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND MCFERRAN
On December 22, 2015, Administrative Law Judge Jo-
el P. Biblowitz issued the attached decision. The Re-
spondent filed an exception, and the General Counsel
filed a motion to strike the exception.
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 exception and motion and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order, as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Service
Employees International Union, Local 87, its officers,
agents and representatives, shall take the action set forth
in the Order, as modified.
1. Substitute the following for paragraph 2(c).
“(c) Make whole for the loss of earnings and other
benefits the employees of ABM at the Zynga building
who were not permitted to work for UBM, as set forth in
the remedy section of the judge’s decision, subject to a
determination in the compliance proceeding of the ap-
propriate wage rate to be utilized in computing the loss.”

1 No exceptions were filed to the violations found by the judge or to
the complaint allegations that he dismissed.
2 The Respondent excepts to the judge’s Order insofar as it requires
the Respondent to make whole the temporary employees of ABM who
were denied employment by UBM, for their loss of earnings and other
benefits “computed on a quarterly basis from May 28, 2015, to a date
when they obtained regular employment at their wage rate while em-
ployed by ABM.” The Respondent contends on exception that the
temporary employees “are not entitled to be paid past May 28, 2015, at
the wage rate while employed by ABM, but must be paid as new em-
ployees for any time they should have been working for UBM, as their
seniority would reset and they would have been entitled only to the
wage rate of a newly hired employee.”
The General Counsel filed a motion to strike the exception as raising
a compliance matter and for the Respondent’s failure to file a support-
ing brief. We deny the motion, but leave to compliance the issue raised
by the Respondent’s exception. We have modified the judge’s Order
accordingly.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
Dated, Washington, D.C. April 8, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Sarah McBride, Esq., for the General Counsel.
Kevin Brunner, Esq. and Jane Brunner, Esq. (Siegel & Yee), for
the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on November 9 and 10, 2015, in San Francis-
co, California. The consolidated complaint herein, which issued
on August 31, 2015,1 was based upon unfair labor practice
charges that were filed on June 4 by the 15 individuals listed
above. The Charging Parties, and others had been employed as
janitorial employees at the Zynga Building by ABM Janitorial,
herein called ABM, which had performed this work at the
building from about 2012 through May 31. ABM had a collec-
tive-bargaining agreement covering these employees with Ser-
vice Employees International Union, Local 87, herein called the
Respondent and/or the Union. Sometime in May, the contract to
perform this work was awarded to Universal Building Mainte-
nance, herein called UBM, effective June 1 and UBM told the
ABM employees at the building that it intended to hire all of
them; however, on about May 28 or 29, the Respondent, by
Olga Miranda, its president, told the employees that some of
them could not work for UBM at the building and told UBM
that it could not hire them. The complaint alleges that the Re-
spondent engaged in this conduct because the Charging Parties
and other of ABM’s employees failed to use the Respondent’s
hiring hall to obtain work with ABM and for reasons other than
their failure to tender uniformly required initiation fees and
dues to the Union. In addition, it is alleged that the Charging
Parties asked Miranda about the Union’s hiring hall to deter-
mine whether they were being treated fairly by the Union re-
garding job referrals to UBM, but the Union refused to give the
employees this information. It is alleged that by this conduct,
the Respondent violated Section 8(b)(1)(A) and (2) of the Act.

1 Unless indicated otherwise, all dates referred to herein relate to the
year 2015.
I. JURISDICTION
Based upon the testimony of Jason Stapleton, the regional
vice president of UBM, I find that it has been an employer en-
gaged 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 it has been a labor organ-
ization within the meaning of Section 2(5) of the Act.
III. THE FACTS
From about 2012 until May 31 ABM performed the janitorial
services at the Zynga Building located at 650 Townsend Street
in San Francisco. During that period, ABM, through the San
Francisco Contractors Association, was party to a contract with
the Respondent effective from August 1, 2012, through July 31,
2016, covering its janitorial employees. On May 8, UBM was
awarded the contract to perform this work, effective June 1,
replacing ABM. UBM signed a contract with the Union prior to
beginning work at the building. Relevant portions of this con-
tract are:
SECTION 25 BIDDING PROCEDURES
25.1 Whenever the Employer bids or takes over the servicing
of any job location, building or establishment covered by this
Agreement, and where the daily work being performed
amounts to seven and one-half (71/2) hours or more, the Em-
ployers agrees to do the following:
(a) Retain all permanent employees at the job location, build-
ing or establishment including those who might be on vaca-
tion or off work time because of illness, injury or authorized
leave of absence; and recognize that the work time and overall
employment service of all such employees shall be considered
as continuous, regardless of change of Employers, for all pur-
poses, including seniority, sick leave and vacation benefits, so
that no such permanent employee will lose any such benefits
because of the change of Employers.
(b) Contact the Union for the number of permanent employ-
ees, all job classifications, starting and quitting times, the
number of daily hours worked, the rates of pay, and the num-
ber of hours each. such employees is credited with for pur-
poses of the Progression Rate at such location. The Union
agrees to supply such requested information within five (5)
working days or the Employer is free to bid the job as he sees
fit.
25.2 Within the 30 days of a building changing contractors,
the current contractor will not be allowed to transfer anyone
into the building. The outgoing contractor, at its discretion,
can transfer out an employee within the 30 days of a building
transfer.
EXHIBIT C
THE FILLING OF AVAILABLE POSITIONS
Notwithstanding any other provision of the Agreement, this
provision shall cover the filling of available positions by each
Employer (Contractor) covered by the Agreement.
SEIU LOCAL 87 (UNIVERSAL BUILDING MAINTENANCE) 3
Each Employer agrees to maintain four separate lists. The first
list will be the Permanent Employee list that will include all
Permanent Employees and their building assignments. (Per-
manent employees are defined as those employees who are
assigned by the Employer to a particular workstation on a dai-
ly and permanent basis.) The second list will include tempo-
rary employees who were permanent for a particular Employ-
er but are now laid off and shall be known as the “A List”.
The third list will include top wage rate temporary employees
for a particular Employer and shall be known as the “B List”.
(Top wage employees are defined as those employees who
have never been permanent.) The fourth list will consist of
temporary employees who are earning less than top wage rate
for a particular Employer and shall be known as the “C list”.
To be included on any Employer’s “C list”, an individual
must have worked at least one (shift) in the last twelve (12)
months for that Employer.
C.2 The placement of employees on the “A through C list”
will be as follows:
(a) Employees, who were permanent for a particular Em-
ployer but are now laid off, will be at the top of the list for that
Employer (A list). The ranking among these employees will
be by seniority date.
(b) The next ranking will be of employees who are earning
the top wage rate for a particular Employer who have never
been permanent (B list). The ranking among these employees
will be by seniority date.
(c) The next ranking will be of those employees who are
earning less than top rate for a particular Employer (C list).
The ranking among these employees will be based on the
number of accumulated hours worked for that Employer.
C.3 When a permanent position becomes available the most
senior employee on the A list will be offered said permanent
position. If there is no A list employee then the most senior
employee on the B list shall be offered said permanent posi-
tion. If there is no B list employee available then the most sen-
ior employee on the C list shall be offered said permanent po-
sition. For day porter and foreperson positions, client and
Employer approval will also be a determining factor. For jani-
torial positions that require specific skills, the Un-
ion/Employer will do it’s best to dispatch/place a member
with the required capabilities.
C.4 (C.3 original) On any given day, the Employer shall fill
available temporary positions with the employee on its A, B
or C List who is not working that day in the order of seniority,
except for day porter, foreperson positions, and for janitorial
positions that require specific skills. However, if the employee
filling a temporary position chosen by the employer is on the
C list the most senior employee from the A, B or C list can
bump the lesser wage temporary Employee, with 24-hour no-
tice, except under extended leaves of absence of 12 months or
longer covered in Section 14.5 of this Agreement.
C.5 In hiring, the Employer may consider individuals rec-
ommended by the Union. For day porter and foreperson posi-
tions, client and Employer approval will also be a determining
factor.
C.6 The employer will notify the union when there is a per-
manent open position in the day porter classification.
C.7 On an emergency basis that does not exceed three (3)
days for day porters and forepersons and two (2) days for oth-
er positions, the employer may fill the temporary vacancy by
an employee of their choice.
C.8 An employee will be removed permanently from an Em-
ployer’s A, B or C list for any of the following reasons.
• Termination for Just Cause
• Not working three shifts within the last twelve (12) months,
except for employees on the A or B list.
• Refusing to accept three (3) dispatches, without just cause,
within a thirty (30) day period will be considered a voluntary
quit, except for employees on the A or B list.
• Not responding to three (3) Employer notifications for dis-
patch without just cause within a thirty (30) day period will be
considered a voluntary quit, except for employees on the A or
B list. It is understood that an employee will be considered to
have not responded to a notification for dispatch on a given
day only if the notification was given at some time from 3:00
p.m. to4:30 p.m. on that day, except under extenuating cir-
cumstances. It is further understood that this paragraph does
not in any way restrict the Employer’s right to notify for dis-
patch at any time before 3:00 p.m. or after 4:00 p.m.
C.9 Each Employer shall supply the Union with a copy of the
lists stated in C.1. Thereafter, each Employer shall supply the
Union with a daily report concerning the filling of temporary
vacancies no later than 3:00 p.m. following the completion of
the previous workday. For Friday, Saturday and Sunday re-
ports, they shall be supplied to the Union the following Mon-
day, unless Monday is a holiday, in which case the require-
ment unless there are extenuating circumstances such as
phone line being down, in that case the Employer is required
to supply the daily report as soon as possible.) This report
shall contain the following information:
• Employee Name
• Name and address of new hires
• Current Assignment, if any
• Date of assignment, if any
• Employee being replaced
• Reasons for Open Position
• Estimated Duration
In addition, each Employer shall supply the Union with an
updated version of its permanent list once every six months
and an updated version of its A, B and C list once every
month.
C. 13 If an employer agrees to only use the Union hiring hall
to fill all positions, both permanent and temporary, it can sign
a side letter to opt out of Exhibit C provisions applicable to
filling of available positions by the biting hall.
C. 14 The Employer agrees to participate in a union hiring
hall pursuant to written procedures and responsibilities estab-
lished by a labor-management committee. The labor-
management committee establishing such procedures and
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
responsibilities shall consist of two management representa-
tives appointed by the San Francisco Maintenance Contrac-
tors Association, and two union representatives appointed by
Union. Employer may subsequently cease participation in the
hiring hall if it is unable to efficiently obtain and assign quali-
fied staff.
On May 8, Devin Samaha, vice president of sales for UBM,
sent an email to Miranda2 and Ahmed Abozayd, vice president
of the Union, stating:
Ahmed/Olga, please see request for a quote for janitorial ser-
vices for 699 8th Street (Zynga) and 650 Townsend. Please
provide us the staffing. Both buildings are cleaned by ABM.
Per Section 25.1(b) of the CBA in which UBM is signatory,
please provide the staffing to us within 5 working days. This
information should include job classifications, starting and
quitting times, the number of daily hours worked, the rates of
pay and seniority date. We are really looking forward to final-
ly working with SEIU #87.
On May 12, Samaha sent another email to Miranda and
Abozayd reminding them that he needs the staffing information
and had not yet received it, and on May 18, he sent a third
email to them stating:
Ahmed. Please provide staffing. This is my third request. If
we don’t have a staffing by end of day today, we will move
forward with our own staffing per the collective bargaining
agreement, as we need to provide our bid by tomorrow.
They received this staffing information at the end of May.
Stapleton testified that UBM has a practice of meeting the em-
ployees at a building it is going to work at prior to the effective
date of the contract, and he first met with the janitorial employ-
ees at Zynga in the middle of May:
The first meeting was a meet and great to kind of introduce
our company, discuss our plan to retain the employees that
were on site, hand out applications to employees. And then
our follow up meeting was to come back and collect the ap-
plications and just discussion [sic] our transition plan.
About 30 to 35 employees attended this meeting and
“Marvin,” a night-shift supervisor, translated from English to
Spanish. He told the employees that UBM would retain all of
them at the request of the client and he handed out applications.
Employees asked if they would be retained, and if they would
keep their seniority and benefits, and he answered that their
intention was to keep all of the employees and maintain their
wages, benefits, and seniority. He told them that it was im-
portant that they return the job applications.
On about May 26, Matt Quinn, UBM’s project manager, in-
formed Stapleton that employees at Zynga told him that the

2 On October 28, 2015, counsel for the Respondent filed a motion to
postpone the hearing stating that Miranda has informed them that she
would not be able to attend the hearing on November 9 and 10, 2015,
“because she is scheduled to have a medical procedure. . . ” Counsel for
the General Counsel opposed the motion and it was denied. At the
hearing, counsel for the Respondent requested that I permit Miranda to
testify by telephone. That request was also denied, and she did not
testify.
Union told them that they could not remain at the building and
work for UBM and that they had to “return to” ABM. After
learning this, he and Quinn met with Miranda and Abozayd on
about May 28. Stapleton told them that he heard from about
twenty employees that the Union told them that UBM was not
allowed to retain them and he asked why and Miranda said that
they were ABM employees, ABM temps, and they had to re-
port back to ABM on Monday. Stapleton asked why UBM
could not employ them and Miranda said, “That’s not how we
do things here in Northern California. Those are ABM’s tempo-
rary workers and they need to report back to ABM on Mon-
day.” Stapleton told her that they wanted to retain all the em-
ployees at the building and asked if it was possible for the em-
ployees to resign from ABM and come to work for UBM. Mi-
randa responded: “That’s not how we do things here, and
you’re starting to piss me off and if you want to play this game
you’ll see what we’re all about. And don’t try to circumvent
me. You have to hire your own employees. That’s how we
operate.” Miranda told him that he had the option of hiring his
own employees, but they had to come through the Union’s
referral process and that the Union had a list of candidates for
the jobs and that he could use the Union hall to interview the
applicants.
Stapleton next met with the employees later that day at the
Zynga Building at about 6 p.m. About 15 employees were pre-
sent for the meeting, as was Marvin, who again did the translat-
ing. Sometime prior to this meeting, the Union gave UBM a list
of “a select group of employees who could remain at the build-
ing” with UBS. The other employees were classified by the
Union as temporary and could not continue working at the
building. At the meeting, he told the employees who were on
the permanent list that they could remain, and that the others
could not remain employed at the building with UBM. The
employees were upset and asked why they couldn’t remain at
the building when they had worked there for many years. He
told them that the Union had told him that those not on the list
had to go back with ABM. Stapleton testified that the Union’s
directive that the employees who were not on the list had to
remain with ABM did not comport with the union contract that
he signed.
On the next day Stapleton and Quinn went to the union hall
to interview applicants for jobs at the Zynga building. About 30
job applicants were present and he asked how many had janito-
rial experience, and about half of those present said that they
did. Abozayd told him that in order to be fair, that they should
interview based upon ethnicity, and asked them to interview an
Egyptian woman first, which they did. Stapleton testified that
he believes that all 30 to 35 of the individuals who were inter-
viewed at the Union hall that week were hired by UBS. As he
left the union hall he saw Marvin together with four or five of
the Zynga janitorial employees. Marvin, translating for them,
said that they wanted to know if they could apply to work for
UBM and he told them that they had to speak to the Union, but
they had previously said that because they were temporary
employees, they could not reapply. Of the approximately 35
employees employed by UBM at Zynga, about 13 were em-
ployed there by ABM; the remaining employees came from the
union hall.
SEIU LOCAL 87 (UNIVERSAL BUILDING MAINTENANCE) 5
In addition to Stapleton, a number of Zynga employees as
well as Abozayd testified. Maria Sanchez testified that she was
employed at the Zynga Building by ABM from September
2014 through May 29, 2015; she worked Monday through Fri-
day, 4 hours each day and was never told whether she was con-
sidered a permanent or a temporary employee. After she began
working for ABM, she joined the Union and paid an initiation
fee and dues to the Union. On May 28 Miranda met with about
15 employees at the building and told them that ABM lost the
contract at the building and she did not believe that the tempo-
rary employees were going to stay at the building: “even
though she never clarified for us whether or not we were per-
manent or temporary employees, not until the end.” Sanchez
asked her why she couldn’t stay working at the building and
Miranda said that it was because she was a temporary employee
and “belonged to ABM.” Sanchez objected and said that she
was not ABM’s property and would work wherever she got a
job. Miranda said that she could work anywhere she wanted,
but not at the Zynga Building. On the following day, Miranda
returned and told the employees (the same ones that she had
met with the prior day) that she had a list of the permanent and
temporary employees and she read the names of the employees
who were staying and who were not staying. Maria Chavez said
that she had worked there for 4 years and did not understand
why she could not stay while two people that she named who
were staying had only been employed at the building for 2
years, but Sanchez does not recall Miranda’s response. It was
never explained to her how the list was compiled or why some
employees were classified as permanent and others were tem-
porary. About a week before these meetings, a representative of
UBS met with the employees and told them that they could all
stay at the building when they took over the operation because
the building said that they didn’t have any problem with the
employees. Some employees asked about the pay and benefits
and he said that everything would remain the same, and he told
them that he would leave job applications with the supervisors.
On that day or the next day, she and the other employees com-
pleted the job application for UBS and returned it to the super-
visor. Sometime after that, she went to the union hall and saw a
man who was handing out applications, although it is not clear
from her testimony what company the applications were for.
She extended her hand to take an application, but he said that
he was sorry, but he could not give her one. When she walked
out of the building, she met with other employees who were
talking to Stapleton. They asked why he couldn’t employ them,
and he said that he couldn’t violate the rules that the Union was
giving him and that he did not want to have a protest in front of
the building. She testified further that from the time that she
became a member of the Union until she finished her employ-
ment with ABM, the Union never explained to her how the
hiring hall worked.
Rudis Amaya was employed full time at the Zynga Building
from March 2013 to May 29 and was a member of the Union,
paid up in dues and initiation fee. On about May 20, somebody
from UBM came to the building and spoke to a group of about
12 employees. He spoke in English while a coworker translat-
ed. He said that he was with the new company that was going
to be in the building and they were interested in keeping them
at the building and their salary and benefits would remain the
same. He distributed job applications and told the employees
that they can turn them in when they start with UBM. On about
May 28, Miranda came to the building with two other people at
about 8 p.m. and met with a group of about 10 employees, in-
cluding Amaya. She spoke in both English and Spanish. Alt-
hough he was not present for the entire meeting, he was present
when “Danitza” asked what would happen to the people “that
were going to stay” and Miranda responded that if they were
going to stay, they “. . . were going to start from the begin-
ning.” Miranda returned to the building the following day at
about 7 p.m. and met with about 10 employees. Amaya was
still on his shift so he was only present for about 5 minutes, but
he heard Miranda say that only the people who were permanent
employees were going to stay: “They said that the permanent
employees were only the people who were making the maxi-
mum salary or the people who had started when the company
started.” That was the only time during his employment at
ABM that anybody from the Union told him that was the dif-
ference between a temporary and a permanent employee. Mi-
randa had a list containing the names of the permanent employ-
ees, and he told her that one person on the list had been em-
ployed at the building only 2 days while he was there for 2
years, and she responded that he was one person and Amaya
was another person. Although there was some confusion among
the employees about why they could not continue to work in
the building when they had been there for a long time, he does
not remember Miranda responding to this concern.
Amaya went to the union hall on June 1 and met Stapleton,
who asked him if he was working and called him into a room
and said that he wanted to interview him. At that point, Miran-
da came in and told him that he should wait outside and he was
not interviewed by Stapleton. Before he left the union hall,
Miranda told him not to worry, because he was going to receive
a call from “Leslie,” although that never developed into a job.
Neither the Union nor ABM has ever explained to him how to
use their hiring halls, and he got a job at ABM by going to their
office.
Gerardo Sanchez was employed at the Zynga Building from
September 2014 until May 29 and was a member of the Union
during that period. On about May 20, people from UBM came
to the building and met with about 28 employees at about 9:30
or 10 p.m. He testified:
They said they were the new company, that everything was to
remain the same, that they were going to respect the wages
that each of us had, and that the only thing that was going to
change was the name of the company, that ABM was the
former company that had lost the contract and that UBM will
take on the contract.
The UBM person asked the employees if they wanted to stay
with them and all those present said that they did. He complet-
ed an employment application for UBM and gave it to his su-
pervisor. On May 28, Miranda and another woman came to the
building and met with about 15 or 20 employees. She said that
there was going to be a new company at the building and asked
the names of the employees and asked if they wanted to work
full time; all but one said that they did, and Miranda said that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
she would return to the building the following day with a list.
On the following evening, Miranda told the employees that she
had a list of employees who were going to stay working for the
new company. When he saw the list he asked Miranda why the
Union was leaving some of them out when they were members
of the Union and she said that other people in the Union had
more seniority than they had and that the ones who were not on
the list would belong to ABM and that they could “…call dis-
patch and that they were going to give us work.” Some em-
ployees said that they had been at the building longer than some
of the employees on the permanent list. A day or 2 later he
went to the union hall and met outside the hall with some of the
building employees and Stapleton, who said that he was sorry
that he didn’t have a chance to give them applications because
he was pressured by the Union and that if he employed them,
the Union could protest outside the building. He testified that
he was never provided with information on how the Union
operated its hiring hall.
Itzel Anahi Revuelta Alcazar was employed part time Mon-
day through Friday at the Zynga Building from December 2014
through the end of May. She was a union member current in his
dues and initiation fee. Miranda came to speak to the employ-
ees on two occasions. At the first meeting she told the employ-
ees that they could stay with ABM or that if they wished, they
could work for UBM. At the second meeting, she brought a list
of the employees who could stay at the building and told some
of them that UBM could not hire them because they are union
workers. She told them that the people who had more years
working there could stay. On the following day, she and her
sister met with Miranda at the union hall and Miranda said that
she would make a deal with her: “That I should go to school
and register, and once I brought back the proof that I had regis-
tered, she was going to give us work.” She also told them that
they should forget about the Zynga Building because they
would never return there.
Maria Chavez, who was called as a witness by the Union,
testified that she began working at the Zynga Building in
March 2012 and about 2 years later was transferred to an at-
tached building, although it is not clear whether that was con-
sidered a part of the Zynga Building. On direct examination she
testified that she did not file an unfair labor practice charge
with the Board, but on cross examination she remembered hav-
ing come to the Board with other employees from the building
and filing a charge against the Union. She attended a meeting
where a representative of UBM told the employees that they
could remain at the building; she also attended a meeting with
Miranda, but could not remember much of what was said.
However, employees asked how they could remain at the build-
ing with UBM, but the Union did not answer these questions.
Evelyn Orrellana, also called by the Union, was employed at
the Zynga Building from September 2013 through May 26; on
that day, she was suspended for 2 days. Prior to leaving, a rep-
resentative from UBM told the employees that they could re-
main at the building with the same wages and seniority. She
never attended a meeting with Miranda.
Danitza Cabrera, called by the Union, began working at the
Zynga Building in September 2013; at the end of May, a repre-
sentative of UBM told them that they could continue to work at
the building with the same seniority and wages. After that,
Miranda spoke to the employees and told them who was going
to be allowed to stay working for the new company. Employees
asked questions such as, could they resign from ABM and work
for the new company? Miranda told them, “No. You guys be-
long to ABM. You have to go with ABM.” Julia Gonzales de
Godinez had been employed at the Zynga Building since July
2014; like Cabrera, she was suspended shortly before the
changeover to UBM and did not attend the meetings with Mi-
randa. However, she did attend the meeting when Stapleton told
the employees that they could continue working at the building
with the same wages and seniority. However, in the first week
of June her supervisor told her that during the prior week, Mi-
randa met with the employees and showed them a list of the
people who were going to be able to stay on, while the rest
would have to call to dispatch.
Antonio Partida, the senior branch manager in San Francisco
for ABM, testified that ABM has its own hiring hall and does
not use the Union’s hall. Its employees call the ABM dispatch
telephone number and they are dispatched by seniority. This
system is explained to employees when they are initially hired.
ABM is a signatory to the Master Agreement between the San
Francisco Maintenance Contractor’s Association and the Un-
ion, and he is familiar with the contract. He was asked the dif-
ference between permanent and temporary status:
The folks that are permanent, there’s a few different ways
they’re permanent. One is we inherit the account and they’re
permanent already and they continue to be permanent with
ABM. People that are on the B-list which are the top rate em-
ployees, if their positions open those people are made perma-
nent in those positions, if available. And there’s other ways to
get your permanency besides that which is kind of a gray area
in our contract.
He was asked about the “gray area:”
In this particular case with Zynga, this was a non-union con-
tract to union contract. So, since we started that contract, the
people that started at that contract, we felt those folks were
permanent because they’d been there since the beginning be-
cause of non-union and the union site. Some of those people--
-most of those people were inherited from the previous com-
pany so those folks are permanent at that site.
He testified further, that under the terms of the contract,
when a company loses a contract, its permanent employees are
hired by the incoming union contractor and are made perma-
nent, and the temporary employees remain with the former
contractor. When ABM lost the Zynga contract, they created a
list of the permanent employees and, he believes, it was distrib-
uted to all the employees. The letter, dated May 29, states:
ABM’s last day at the above sites is May 31, 2015. The intent
of this memo is to inform you of your employment status after
May 31st per the collective bargaining agreement between the
SF Contractors (ABM) and SEIU Local 87(Union).
For those who have been given Permanent status, you will be
retained by the new contractor with your current pay rate, sen-
iority date and benefits. The union will provide your infor-
SEIU LOCAL 87 (UNIVERSAL BUILDING MAINTENANCE) 7
mation to the new contractor. Those employees that are per-
manent are listed below. Your last check with your vacation
balance will be issued as soon as possible.
All others (temporary) will need to call ABM Dispatch on
Monday, June 1st for dispatch . . . You will be dispatched to
work based on your union seniority.
The letter listed 17 permanent employees with union seniori-
ty dates from January 4, 1999, to July 25, 2012. On cross exam-
ination, he testified that he does not believe that employees,
when hired by ABM are given any documents explaining the
difference between permanent and temporary employees.
Abozayd is the union vice president. He testified that the un-
ion hiring hall dispatches employees to UBM and other em-
ployers on a seniority basis; ABM maintains its own dispatch
system. Prior to UBM assuming the contract at the building,
nobody from UBM spoke to the Union about who was going to
be employed by UBM at the building. When he learned that
UBM told all the employees at the building that they would
remain there with UBM, he and Miranda met with Stapleton
and told him: “And we object to that because the rules in San
Francisco are that you don’t do anything before the temps must
go [sic] the permanent people must stay.” In addition, UBM’s
promise to the temporary employees that they would maintain
their wages, seniority and benefits was not permitted under
their contract. When he and Miranda met with Stapleton, they
explained the contract and he apologized for making the prom-
ises to the temporary employees saying that he didn’t know
how the Union operated in San Francisco; at this meeting nei-
ther he nor Miranda threatened to picket the building. Shortly
thereafter, he and Miranda met with the employees at the build-
ing and told them that only the permanent employees would
remain at the building and that the temporary employees would
remain with ABM. A lot of the employees were unhappy be-
cause UBM had promised them that they would remain at the
building with the same wages and benefits, and he and Miranda
told the employees that they could be dispatched by ABM or
could go to the Union’s hiring hall, but that it would be to their
advantage to be dispatched by ABM because they would main-
tain their wages, benefits and seniority. ABM gave the Union a
list of the permanent employees and the Union gave it to UBM.
On cross examination, he was asked:
Q. Mr. Abozayd, your testimony regarding a changeover in
employers when temporary employees leave a building, your
testimony was in accordance with past practice, is that correct,
that that was the past practice that the Union follows?
A. This is my knowledge.
Q. Okay. That testimony that temporary employees must exit
with an outgoing employer is not clearly stated in any section
of this contract, is it?
A. That’s correct.
As for the union’s hiring hall, there are signs at the Union’s
office explaining the operation of the hiring hall and every
month there is a union meeting for new members at which they
talk about the hiring hall and he has never refused to answer a
member’s question about the hiring hall.
IV. ANALYSIS
The principal allegation is that by telling Stapleton that UBM
could not hire all of the ABM employees at the Zynga building
and by telling the ABM “temporary employees” at the building
that they belonged to ABM and could not work for UBM, the
Respondent violated Section 8(b)(1)(A) and (2) of the Act.
Credibility is clear here. Stapleton, who was subpoenaed to
testify by counsel for the General Counsel, testified in a direct
and credible manner even though he has a contract with the
Union, and his testimony is credited totally. Stated another
way, he would have no reason to lie. The employees also testi-
fied credibly, although some of their testimony was not as pre-
cise as one would have liked it to be, but that may have been
due to the fact that some of the discussions were in English
with Spanish translations. Overall, their testimony is credited as
well. Because of that, I find it unnecessary to draw an adverse
inference from Miranda’s failure to testify as requested by
counsel for the General Counsel.
The facts are fairly straightforward and undenied. UBM re-
ceived the contract to perform the work at the building on May
8, effective June 1, and told the employees at the building that
it intended to hire all of them without loss of pay, seniority, or
benefits. About 2 or 3 days prior to the June 1 date, Miranda
told the employees that only the “permanent” employees could
work for UBM and that the “temporary” employees “belonged”
to ABM. It should be noted that the evidence establishes that
these employees were all members of the Union and paid up in
their initiation fee and dues. At a meeting on May 28 Miranda
told Stapleton that the company could only employ the employ-
ees at the building who were classified as “permanent.” When
he asked if the employees could resign from ABM and work for
UBM, she told him that was not how they do things in Northern
California “…and you’re starting to piss me off and if you want
to play this game, you’ll see what we’re all about. And don’t
try to circumvent me. You have to hire your own employees.”
On the following day, he went to the union hall where he inter-
viewed and hired employees selected by the Union to supple-
ment the “permanent” ABM employees.
The law is clear that absent an exclusive hiring hall agree-
ment between a union and an employer, if the union causes or
attempts to cause an employer to terminate or refuse to hire
certain individuals and replace them with individuals of the
union’s choice, this constitutes a violation of Section 8(b)(1)(A)
and(2) of the Act. Bricklayers, Masons and Plasterers’ Interna-
tional Union of America, Local No. 2, AFL-CIO, 205 NLRB
478 (1973); Local 17, International Union of Operating Engi-
neers, AFL-CIO, 231 NLRB 1287 (1977); Kvaerner Songer,
Inc. and Local 344, Laborers, 343 NLRB 1343, 1346 (2004). I
find that there is no evidence that an exclusive hiring hall exist-
ed between the parties prior to May 29, when UBM went to the
union hall to interview applicants selected by the Union; the
contract did not provide for it and UBM did not sign any
agreement with the Union requiring it. The fact that UBM in-
terviewed applicants recommended by the Respondent at the
union hall does not establish that an exclusive hiring hall exist-
ed between the parties. In fact, counsel for the Respondent in
his brief states that no exclusive hiring hall existed between the
Respondent and UBM.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
As the Respondent told the “temporary” employees that they
could not work for UBM, and told UBM that it could not em-
ploy them, the Respondent violated Section 8(b)(1)(A) and (2)
of the Act. Although there was no explicit threat made to Sta-
pleton at the May 28 meeting, there was certainly an implied
threat: “If you want to play this game, you’ll see what we’re all
about. And don’t try to circumvent me.” However, to find this
violation, there need not be a threat: “it is long-settled that the
statutory requirement of ‘cause or attempt to cause’ is satisfied
by an efficacious request.” San Jose Stereotypers (Dow Jones
& Co.), 175 NLRB 1066 fn. 3 (1969).
Even if the parties were subject to an exclusive hiring hall ar-
rangement at the time that the Union notified UBM and the
employees that they could not be employed by UBM, it would
still violate the Act. In Steamfitters Local Union No. 342, 336
NLRB 549, 550 (2001), the Board stated:
We adhere to the Board’s longstanding position that any de-
parture from the established procedure for an exclusive hiring
hall that results in denial of employment to an applicant vio-
lates the duty of fair representation and Section 8(b)(1)(A)
and (2), unless the union can demonstrate that the departure
was pursuant to a valid union-security clause or was neces-
sary to the union’s effective performance of its representative
function. We reaffirm that such departures encourage union
membership by signaling the union’s power to affect the live-
lihoods of all hiring hall users, and thus restrain and coerce
applicants in the exercise of their Section 7 rights.
As there was nothing in its contract that permitted the Union
to engage in this conduct, this also violates the Act. Interna-
tional Association of Bridge, Structural and Ornamental Iron
Workers, Local 118, AFL–CIO, 309 NLRB 808 (1992).
It is further alleged that since about May 28, the Respondent
has refused to provide the employees with information about its
hiring hall. However, as I have found that the Respondent vio-
lated the Act by not permitting UBM to employ all of the ABM
employees at the building, there was no need for them to use
the hiring hall and therefore no need for them to understand its
operation. I therefore find it unnecessary to make a finding on
this allegation.
CONCLUSIONS OF LAW
1. Universal Building Maintenance, LLC has been an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Respondent has been a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) and (2) of
the Act by telling UBM that it could not hire all of the janitorial
employees at the Zynga Building and by telling the employees
that some of them could not work for UBM because they be-
longed to ABM.
4. I find it unnecessary to make a finding on the remaining
allegations contained in the consolidated complaint.
REMEDY
As the Respondent violated the Act by telling UBM that it
could not employ the “temporary” employees of ABM at the
Zynga Building and told those employees that they could not
work for UBM because they belonged to ABM, the Respondent
will be ordered to cease and desist from engaging in this con-
duct and to notify UBM, in writing, within 7 days of this Deci-
sion that it has no objection to them employing the former
ABM employees at the building, and, in addition, it will inform
all the employees employed by ABM at the building who were
classified as “temporary employees” that it has no objection to
them being employed by UBM or any other employer. In addi-
tion, the Respondent will make whole the Charging Parties and
all the other employees who were classified as temporary em-
ployees for any loss that they suffered because the Respondent
refused to permit them to work for UBM. In making these indi-
viduals whole for their loss of earnings or other benefits, the
loss will be computed on a quarterly basis from May 28, 2015,
to a date when they obtained regular employment at their wage
rate while employed by ABM, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons, 283 NLRB 1173 (1987),
compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010), enf. denied on other grounds
sub.nom., Jackson Hospital Corp. v. NLRB,, 647 F. 3d 1137
(D.C. Cir. 2011). I shall also order the Respondent to file a
special report with the Social Security Administration allocat-
ing their backpay to the appropriate calendar quarters and to
compensate them for any adverse income tax consequences of
receiving his backpay in one lump sum.
Upon the foregoing findings of fact, conclusions of law, and
on the entire record, I hereby issue the following recommend-
ed
3
ORDER
The Respondent, Service Employees International Union,
Local 87, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Telling Universal Building Maintenance or any other
employer that it cannot employ its members because they must
continue to work for another employer.
(b) Telling its members that they cannot work for Universal
Building Maintenance, or any other employer, because they
must work for their former employer.
(c) In any like or related manner interfere with, restrain, or
coerce its members in the exercise of their rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Notify Universal Building Maintenance and other em-
ployers, in writing, that the Union has no objection to your
employing the former employees of ABM at the Zynga Build-
ing.
(b) Notify the former employees of ABM at the Zynga
Building, in writing, that the Union has no objection to their
being employed by UBM or by any other employer.

3 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.
SEIU LOCAL 87 (UNIVERSAL BUILDING MAINTENANCE) 9
(c) Make whole for the loss of earnings and other benefits
the employees of ABM at the Zynga Building who were not
permitted to work for UBM as set forth above in the remedy
section.
(d) File a special report with the Social Security Administra-
tion allocating their backpay to the appropriate calendar quar-
ters and compensate them for any adverse income tax conse-
quences of receiving their backpay in one lump sum, as pre-
scribed in Latino Express, Inc., 359 NLRB No. 44 (2012).
(e) Within 14 days after service by the Region, post at its
union hall in San Francisco, California, copies of the attached
notice marked “Appendix.”
4
Copies of the notice, on forms
provided by the Regional Director for Region 20, 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 and members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material.
(f) 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. December 22, 2015
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

4 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.”
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 on your behalf with
your employer
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT tell Universal Building Maintenance or any
other employer that they cannot employ individuals of their
choosing because they can only work for another employer.
WE WILL NOT tell our members that they cannot work for
Universal Building Maintenance or any other employer because
they can only work for another employer.
WE WILL NOT in any like or related manner restrain or coerce
you in the exercise of the rights guaranteed you by Section 7 of
the Act.
WE WILL permit our members to work for the employer of
their choice and WE WILL notify all of the employees of ABM at
the Zynga Building in May 2015, in writing, in English and
Spanish, that they have the right to work for any employer that
they choose.
WE WILL make whole all of the employees of ABM Janitorial
employed at the Zynga Building for any loss of earnings and
other benefits resulting from our actions in not permitting them
to work for UBM at that building.
SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL
87 (UNIVERSAL BUILDING MAINTENANCE)