Control Services

National Labor Relations Board - Board Decisions

Jul 19, 1994

314 N.L.R.B. 421 (N.L.R.B. 1994)

421
314 NLRB No. 72
CONTROL SERVICES
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Control Services, 305 NLRB 435 (1991), enfd. mem. 961 F.2d
1568 (3d Cir. 1992); Control Services, 303 NLRB 481 (1991), enfd.
mem. 975 F.2d 1551 (3d Cir. 1992).
Control Services, Inc. and Local 32B-32J, Service
Employees International Union, AFL–CIO.
Cases 22–CA–17479, 22–CA–17528, and 22–CA–
17931(1) and (2)
July 19, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND DEVANEY
On September 27, 1993, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief, to which
the Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions
and to adopt the recommended Order as modified.
1. The Respondent excepts to the judge’s finding
that Elizabeth Carter was not a supervisor within the
meaning of Section 2(11) of the Act. The Respondent
contends that although the judge specifically found that
Carter did not exercise any indicia of supervisory sta-
tus, the judge failed to address whether Carter pos-
sessed any such indicia. Although we agree with the
Respondent that the judge failed to make all the appro-
priate findings in this regard, we conclude that the
record supports a finding that Carter did not possess
any indicia of supervisory authority.
The only evidence offered by the Respondent in
support of its contention that Carter possessed indicia
of supervisory authority was the testimony of Carol
Owens, an admitted supervisor. Owens asserted at the
hearing that Carter had the authority to hire, fire, dis-
cipline employees, review work assignments, and di-
rect the work of employees. As the judge noted, the
Respondent did not offer any evidence or testimony to
show that Carter actually exercised the alleged author-
ity. In addition, the record is devoid of any evidence
corroborating Owens’ testimony, such as a written job
description, documents referring to Carter as a super-
visor, documents detailing supervisory authority, or
corroborating testimony by other employees. We find
that the Respondent has produced insufficient evidence
to establish that Carter is a supervisor because, as the
Board stated in Sears, Roebuck & Co., 304 NLRB 193
at 193 (1991), ‘‘conclusory statements made by wit-
nesses in their testimony, without supporting evidence,
does not establish supervisory authority.’’ See also
Bowne of Houston, 280 NLRB 1222 (1986); American
Radiator Corp., 119 NLRB 1715, 1718 (1958). More-
over, although the Respondent claims that Carter was
the only supervisor present at the facility when Owens
was absent, the record does not reflect how often, if
ever, Owens was absent, nor does it reflect the author-
ity possessed or exercised by Carter in Owens’ ab-
sence. On the record as a whole, we find that the Re-
spondent has failed to establish that Carter possessed
any indicia of supervisory authority.
2. The Respondent excepts to the judge’s rec-
ommendation that the Board issue a broad cease-and-
desist order. A broad cease-and-desist order requires a
respondent to cease and desist from ‘‘in any other
manner restraining or coercing [its employees] in the
exercise of their Section 7 rights to organize and bar-
gain collectively or to refrain from such activities’’ and
is issued when a respondent is ‘‘shown to have a pro-
clivity to violate the Act or has engaged in such egre-
gious or widespread misconduct as to demonstrate a
general disregard for the employees’ fundamental stat-
utory rights.’’ Hickmott Foods, 242 NLRB 1357 at
1357 (1979).
The judge recommended a broad cease-and-desist
order because, based on violations found to have been
committed by the Respondent in this case and in two
prior cases,2 the judge found that the Respondent has
exhibited a proclivity to violate the Act. We agree with
the judge’s recommendation, in view of the number,
variety, and seriousness of the violations committed,
and the fact that the maintenance of the no-solicitation
rule in the present case represents a repetition of con-
duct found unlawful in one of the earlier cases.
3. Both parties interpret the judge’s Order to require
that the Respondent post a notice of its violations at
each and every one of the Respondent’s facilities. Al-
though we agree with the judge that a broad cease-and-
desist order is appropriate in this case, we do not be-
lieve that the Respondent’s actions necessitate
corporatewide posting of its violations. A broad cease-
and-desist order does not automatically result in a
corporatewide posting order. See, for example, Circuit-
422 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the opening of hearing, Respondent counsel sought leave to
change Respondent’s answer, in which it admitted receipt of the
charges in Cases 22–CA–1747 and 22–CA–17258, to now deny their
receipt. At this point, counsel for the General Counsel searched her
files and located the original Region 2, NLRB envelopes in which
the charges had been mailed, certified, to Respondent at its proper
address, in one case specifically naming ‘‘Edward Turin, Pres.’’ and
in the other case, ‘‘Edward Turen.’’ Edward Turen is the admitted
president of Respondent. Both envelopes contain postal service
markings and notations showing that delivery of the contents had
been refused and the envelopes were returned to the sender. Based
on the receipt of these envelopes and their contents into evidence,
I denied Respondent’s motion, with leave to explain this failure to
accept delivery. No explanation was ever offered. At the time, ac-
cording to Respondent’s counsel, Respondent and its counsel were
subject to a 10(j) injunction issued by Judge Ackerman of the Fed-
eral District Court, Newark, New Jersey, which included an order
that they not refuse to accept certified or registered mail.
Wise, Inc., 308 NLRB 1091 (1992); Burns Security
Services, 300 NLRB 1143 (1990); and Payfair Market,
295 NLRB 905 (1989).
The Board has ordered corporatewide posting when,
for example, it has been shown that a respondent’s
headquarters, divisional, and regional management lev-
els were found to be responsible for the unfair labor
practices committed at the respondent’s individual fa-
cilities. Beverly Enterprises, 310 NLRB 222 (1993),
enf. denied in relevant part Docket Nos. 93–4016, 93–
4038, 93–4050 (2d Cir. 1994). In Beverly, the Board
noted that over a 2-year period, the respondent com-
mitted approximately 135 unfair labor practices at 32
of its 35 facilities at issue. Based on the scope of the
violations, and on evidence that labor relations policies
at the individual facilities were directed by the national
headquarters, the Board found that a corporatewide
posting would address ‘‘the Respondent’s pattern of
thwarting union organizing campaigns and otherwise
disregarding the fundamental statutory rights of its em-
ployees with a gamut of unfair labor practices.’’ 310
NLRB at 231.
The instant case is distinguishable from Beverly, not
only because of the sheer number of violations com-
mitted in Beverly, but also because the General Coun-
sel has not produced sufficient evidence in this case to
show that the unfair labor practices committed at the
Lincroft facility were in any way directed by manage-
ment from the Respondent’s headquarters or central of-
fice. In fact, all the violations were the result of the
independent acts of Owens, the Lincroft facility super-
visor. Accordingly, and absent any other circumstances
here justifying a departure from our usual remedy, we
do not find that the facts of this case present a situa-
tion in which the extraordinary remedy of a
corporatewide posting order is necessary and we will
modify the recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Con-
trol Services, Inc., Secaucus, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Substitute the following for paragraph 2(c).
‘‘(c) Post at its Lincroft, New Jersey facility, copies
of the attached notice marked ‘Appendix.’8 Copies of
the notice, on forms provided by the Regional Director
for Region 22, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.’’
Julie L. Kaufman, Esq., for the General Counsel.
Joel I. Keiler, Esq., for the Respondent.
Ira Sturm, Esq. (Manning, Raab, Dealy, & Sturm), and Eric
Pearson, Lead Organizer, for the Charging Party.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was tried before me on November 2, 3, and 4, 1992, in New-
ark, New Jersey. The consolidated complaint1 alleges that
Control Services, Inc. (Control Services or Respondent) re-
fused to recognize and bargain with the Charging Union as
exclusive representative of its employees in an appropriate
bargaining unit, issued a written warning to an employee,
promulgated and maintained unlawful no-solicitation and dis-
tribution rules, and threatened its employees with unspecified
refusals for engaging in activities in support of the Union in
violation, respectively, of Section 8(a)(5), (3), and (1) of the
Act. In its answer, Respondent denied that it refused to bar-
gain, that the Union had achieved majority status in the unit,
or had made demand to bargain, or that it had engaged in
any other conduct violative of the Act.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel
and Respondent have each filed posttrial briefs, which have
been carefully considered. On the entire record in the case,
including my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent Control Services, Inc., a corporation with an
office and place of business in Secaucus, New Jersey, has at
all times material been engaged in the provision of building
services, including cleaning, janitorial, and maintenance serv-
ices at various locations within the State of New Jersey. Dur-
ing the 12-month period ending November 30, 1991, Re-
spondent, in the course and conduct of its business oper-
423CONTROL SERVICES
ations, performed services valued in excess of $50,000 in
States other than the State of New Jersey. During the same
period, Respondent, in the course and conduct of its business
operations, provided services in excess of $50,000 for AT &
T enterprise located in the State of New Jersey and directly
engaged in interstate commerce. Respondent Control Serv-
ices, Inc. admits, and I find, that it is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Respondent admits, and I also find, that the
Charging Union, Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO (Local 32B or the Union) is a
labor organization within the meaning of Section 2(5) of the
Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Presentation of General Counsel’s Case in
Chief on the Issues Relating to Respondent’s Alleged
Refusal to Bargain, Issuance of No-Solicitation Rules,
Threats and Written Warning to an Employee
In the period prior to 1991, a company known as ISS
International Service Systems, Inc. (ISS) had been employed
by ISS to provide cleaning services at its Lincroft, New Jer-
sey building location. For some time Local 389, Service Em-
ployees International Union had been the exclusive collec-
tive-bargaining representative of the cleaners employed by
AT & T at the Lincroft site. Local 389 and AT & T were
parties to a collective-bargaining agreement covering cleaners
employed at the Lincroft site most recently for the period
January 1, 1987, through December 31, 1989. In a location
rider to that agreement executed by representatives for the
Charging Union and ISS, the parties agreed to economic lo-
cation terms to be made applicable to the cleaning employees
working at the AT & T Lincroft site, effective on January
1, 1990, 1991, and 1992. Although not noted in the rider, it
appears that the Charging Union was recognized as a suc-
cessor to Local 389 as exclusive bargaining representative
for the cleaning employees at the subject site. In the rider,
wage increases and minimum rates of pay were listed for
employee categories including day porters, general cleaners,
group leaders, lavatory cleaners, and machine operators.
However, during the term covered by the rider, ISS lost
its cleaning contract with AT & T and Respondent took over
the cleaning and maintenance services at the Lincroft site.
Employee Bertha Pershing testified that she worked for
ISS as an office cleaner on the night shift from October 1988
until the end of December 1990. On January 2, 1991, Per-
shing and approximately nine other former ISS cleaning em-
ployees were hired by Control Services to perform the same
services they had previously performed for ISS at the AT &
T Lincroft site, working the 6 to 10 p.m. shift. Pershing
named these employees, besides herself, as Phyllis Mehan,
Thomas Young, Dorothy Blake, Henry Williams, Lorraine
Adams, Matthew Wilhelm, Elizabeth Carter, Christina
Zwolska, and Mary Hargrove. These same 10 employees had
been recommended for hire to an official of Control Services
by Carolyn Owens, an admitted supervisor, in a letter dated
December 31, 1990, in which Owens referred to their work
habits and attendance records in suggesting their retention.
At the time Owen listed herself as ISS supervisor at AT &
T Lincroft.
Pershing testified that the first night of her employment by
Respondent about 30 other people came in to the facility.
They stripped the bathroom floors and cleaned the walls and
even the light fixtures. The 30 employees returned the sec-
ond night but by the third night their number had been re-
duced, so that, with the 10 newly retained regular cleaners,
the total employees at the workplace were now 20 to 21 per
night. Later evidence will show this number dropped further,
with the complete elimination of all the additional startup
employees at the end of the first 2 weeks.
Pershing also saw three former ISS day-shift employees at
the Lincroft site after Respondent took over the cleaning op-
eration there. She named them as George Dow, Marjorie,
later identified as Marjorie Kollmack, and a Terence. She
saw them when she got into work early and the three had
not yet left the facility after their day shift ended.
Pershing had been shop steward for the Union for Novem-
ber and December 1990, the last 2 months that ISS had been
the employer. On January 4, 1991, Robert, a union represent-
ative, later identified as Robert Sarason, asked Pershing if
she would go on a picket line outside the facility as a former
ISS employee, to try to help the other former ISS employees
regain their jobs with Control Services. Starting on January
4 Pershing walked the picket line in front of the AT & T
building at Lincroft for 3 to 5 days between 4 and 5:20 p.m.
before going to work. She wore a placard stating ‘‘Control
Services unfair, Local 32B-32J.’’
While on the picket line, Pershing saw Carolyn Owens on
two occasions. The first time, Owens stopped her car in front
of and stared at Pershing who was patrolling in the street in
front of the driveway leading to the building and parking lot.
The second time, on another day, Owens also looked at Per-
shing as she stopped her car before she drove on in to the
parking lot.
On January 14, 1991, as Pershing came in to the building
to go to work about 5:45 p.m., another employee walking in
with her, Dottie Blake, asked her why she was on the picket
line. At that point Owens, who had overheard the question,
came over to Pershing and told her if she stayed on that
picket line and she, Owens, were to call Control Services,
Pershing would wind up losing her job. Pershing responded
that on her own personal time she could do whatever she
wanted to. Owens didn’t reply and Pershing walked away
from her and into the office to sign in for work.
Earlier in January 1991, shortly after Control Services took
over the cleaning at Lincroft, at about 8 p.m. one evening,
Owens spoke to Pershing and other former ISS employees
who had now become employed by Control. They were
standing on the main floor where all visitors came in. She
told them they weren’t supposed to take a break because the
new company didn’t allow it, but they told her they were
going to take one anyway. Owens then said, ‘‘go upstairs
and do it on your floor, then.’’ Thereafter, Pershing and the
other employees took a break from work at 8 p.m. in the
conference room on the second floor. While the old break
had been 15 minutes long, they now took 5 minutes to go
to the bathroom and get a drink from the vending machines
there.
A week after the break discussion, Owens handed out a
pamphlet to all employees when they came in to work one
night. The first page, containing Control’s name at the top,
was headed, ‘‘Rules of Conduct.’’ On this page, among other
424 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
examples of causes for disciplinary action and ultimate dis-
charge for repeated violations, was one item, paragraph 6,
which read as follows:
6. Soliciting, collecting, or accepting contributions
and/or distributing or collecting papers or material dur-
ing work hours without approval.
The third, fourth, and fifth pages contained a list of 32 num-
bered items in separate paragraphs, headed, on page three,
‘‘Building Familiarization List For Cleaning Personnel’’ and
containing the admonition that ‘‘This List Is To Be Posted
In All Janitorial Rooms And Must Be Read By All New
Cleaners Before Starting Work.’’ Paragraph 26 read as fol-
lows:
26. Soliciting is prohibited on AT & T premises by all
Contractor’s employees.
Sometime in early August 1991, Pershing received from
Robert Sarason of the Union a form of petition with columns
below headed name, address, and phone. When she received
it, the petition contained the following typing at the top,
‘‘We want Local 32-b-32-j SEIU to represent us with Con-
trol Services. Regarding wages, hours, and conditions of em-
ployment. We are sick and tired of Control Services over-
working us for too little pay.’’ Pershing took the petition
around to other employees to sign their names, list their ad-
dresses and phones, to have the Union represent them with
their employer. Employee Thomas Young approached other
employees along with Pershing. When they had procured the
signatures of 13 employees to the petition, Pershing and
Young went to Owens’ office at quitting time one Friday in
mid-August 1991, placed it on her desk, and Pershing told
Owens to give the petition to Control.
The following Monday evening, as Pershing was signing
in for work at 6 p.m. at Owens’ office, she saw a Control
notice posted on the desk informing employees they were not
to solicit or conduct any union business on the premises,
whether it was during their breaktime or any other time. The
notice remained on the desk for a few days, and then it dis-
appeared. While it was posted Owens told Pershing and other
employees that the notice was from Control Services.
During her cross-examination, Pershing explained that
even before she and Thomas Young circulated the Union’s
petition among employees in August 1991, perhaps as early
as July or even earlier, she, Young, Christina Zwolska, and
Henry Williams, among other employees, discussed among
themselves their desire to keep the Union which had pre-
viously represented them in collective-bargaining with ISS.
The idea for the petition originated with them, but the word-
ing and form were provided by Union Agent Sarason.
Pershing now also noted that after Owens spoke to her
about being on the picket line, and she replied that she can
do whatever she wants on her own time, later that evening
Owens came upstairs to her work area and told her ‘‘I didn’t
like the way you talked to me downstairs. I demand re-
spect.’’ Pershing replied, she gave respect and just told what
she was doing—picketing—was on her personal time. Per-
shing also said if she, Owens, took her comments a particular
way, that was her problem. Pershing was not disciplined,
warned, or suspended for this exchange or for later calling
Owens a liar to her face. Pershing later learned from another
employee that Owens praised Pershing, saying she wished
she had more like her.
Pershing testified that besides herself, the other employees
hired by Respondent who picketed were Henry Williams and
Christina Zwolska, but while she picketed probably all week,
Williams did it for 2 or 3 days and Christina for only one
because she had a day job. In fact, she had asked Williams
and Zwolska to join her on the picket line. The other pickets
were all former ISS employees.
Pershing also explained that written rules and regulations
which the employees received were provided to them in re-
sponse to a request she had made, after Owens had been tell-
ing them each evening something different concerning Con-
trol Service rules of conduct on the job. The no-solicitation
notice was posted on Owens’ desk and mentioned by her the
next workday after Pershing and Young gave her the em-
ployee union petition.
Thomas Young testified that he had also previously
worked for ISS at the AT & T facility at Lincroft until Janu-
ary 1991, and then was hired by Control Services for the
night shift, from 6 to 10 p.m. Young was employed as a
floater, going from floor to floor doing the rug shampooing
and other cleaning. He saw the same, three, day employees,
previously employed by ISS, continue to work on the day
shift for Control Services after they took over the cleaning
operation in January 1991. He named two of them as Mar-
jorie and Terence. The third one was a male. He saw them
signing out as he invariably came in early to work at 5:30
p.m., Marjorie almost every day, and the other two people
two or three times a week. They were the only day-shift em-
ployees he saw signing out at the end of their shift. He con-
tinued to see them signing out when he arrived at work a
month later in February 1991.
Young was active on behalf of the Union. In early August
1991, Seth Gradowsky, a union organizer, gave him a union
petition seeking the reinstatement of an employee named
Pablo who had been fired. Young circulated it among his fel-
low employees and obtained their signatures. He then pre-
sented it to Carolyn Owens one evening after work in her
office, telling her it was a petition for Pablo that got fired,
and to send it to Control.
Young also received another petition from Gradowsky,
earlier described by employee Pershing, which expressed the
desire of the signatories to be represented by Local 32B re-
garding their wages, hours, and conditions of employment.
Young corroborated Pershing that the two of them circulated
the petition to obtain the employees’ signatures on the docu-
ment, and that Pershing accompanied him to the office when
they handed it to Owens at the end of a shift to send it to
Control.
During the period for time in early August that Young was
circulating the petition, at around 7:30 p.m., Owens came to
the second floor where he was working and told him if he
didn’t stop what he was doing, the union activities, he was
going to get in trouble. Young asked why will he get in trou-
ble, he had his rights to pass this petition around. Owens
then walked away form him without responding.
On August 16, 1991, Young received a written warning
from Owens. Owens told him she had to give him this warn-
ing because he wasn’t at his work station. Young told her
he was a floater, and went from floor to floor. Young ex-
425CONTROL SERVICES
2 The green card receipts completed by the sender for the letters
mailed to both Control and Keiler are marked both registered and
certified but the receipts and one envelope (the one refused by Con-
trol) contain printed words and label, respectively, showing the mail-
ing to have been certified. I conclude the mailing was by certified
format.
In view of the match of the certified numbers on the Union’s re-
ceipt and the refused envelope and receipt signed by Keiler, respec-
tively, I conclude, contrary to Keiler’s own testimony, that he re-
ceived the Union’s bargaining demand, and Control Services refused
the identical demand letter.
plained on the record that he had no work station. The work
warning, dated August 16, 1991, read as follows:
You are being conferenced on leaving work area
talking. On at least 3 occasions supervision noticed
equipment left unattended while you were no where
around.
1. Equipment should not be left unattended.
2. Talking to fellow employees stop them from
doing their work also.
It was signed by Carolyn Owens.
During his cross-examination, Young corroborated
Pershing’s testimony that she had picketed outside the
Lincroft worksite in January 1991.
During Young’s cross-examination, the parties stipulated
that in his pretrial affidavit given to the Regional Office, he
made reference to circulating only one petition, and that peti-
tion was the one in which the employees protested Pablo
Hernandez’ discharge, the large amount of work assigned for
the 4-hour shift, and demanded Control Services stop com-
mitting unfair labor practices. The parties further stipulated
that Young’s affidavit refers only to himself as circulating
the petition and obtaining employee signatures, and fails to
mention Pershing in this regard.
Young also acknowledged that even though Control Serv-
ices said they weren’t supposed to take any breaks, he and
the other employees continued to take a daily work break of
about 15 minutes.
The record disclosed that due to a handicap of cerebral
palsy Young has great difficulty in reading. When his affi-
davit was taken Young did not disclose this handicap or that
he was unable to read the statement prepared by the Board
agent. Some weeks later when Young disclosed this handicap
to the agent, counsel for the General Counsel, she read the
affidavit to him and he agreed with its contents.
On his redirect examination, when Young was handed his
written warning he recognized that it was claiming he had
left his work area or equipment three times, but the warning
was not read to him. Although containing a place for his sig-
nature he did not sign it. Young associated this written warn-
ing with the oral warning Owens had recently given him
about getting in trouble for circulating the union petition.
With specific regard to the work warning, Young further
testified that in his work, he used an electrically driven buff-
ing machine to shampoo rugs. On occasion he has pulled the
electrical cord from the wall socket, wrapped it around the
buffer, and left the item on the floor while he went to the
bathroom. Young swore that he had never been instructed,
prior to receiving the warning, about leaving his equipment
unattended. In Young’s own estimation, he was a floater,
who was trusted as the work got done, and he took care of
his equipment, leaving it wrapped up with its cord for only
short periods of time and storing it at the end of his shift
in the janitor room at the facility. Young also noted that Re-
spondent had instructed the employees not to talk with other
employees during their work shift, and that he had invariably
complied with this directive and limited his talking to his
breaktime between 7:30 and 7:45 p.m.
Eric Person, union lead organizer, testified to his famili-
arity with the correspondence the Union undertook with Re-
spondent. In its initial correspondence, by letter dated De-
cember 5, 1990, addressed to Control Services, copy to its
counsel, Joel Keiler, Robert Sarason, on behalf of Local 32B,
refers to its inclusion of 19 applications for employment at
the AT & T facility at Lincroft and to its status as represent-
ative of the building service employees employed by ISS at
the same site in the course of noting Control Services’ award
of the contract to clean and maintain the facility, effective
December 28, 1990. Sarason made application for employ-
ment on behalf of the present workers, asked for early notice
of the acceptance of the applications he enclosed, the wages
and benefits Control Services intends to pay, and requested
an early contact to schedule negotiations for the purpose of
collective-bargaining for those individuals who are, and will
continue to be, represented by the Union. The Union re-
ceived no response to this letter.
Subsequently, by letter dated January 24, 1991, addressed
to Control Services, copy to Keiler, Sarason attached the
Union’s earlier December 5, 1990 letter and again requested
Control to bargain with the Union for the purpose of collec-
tive-bargaining for the Control cleaners at AT & T in
Lincroft, New Jersey. Sarason asked that he be contacted as
soon as possible to schedule negotiations.
The evidence shows that on January 24, 1991, the Union
forwarded by certified mail2 the original and a copy of the
January 24 letter with attachment to Control Services and
Keiler. Control Services refused to accept delivery of the
original letter and attachment on January 25, 1991, and it
was returned to the sender. On January 28, 1991, Keiler
signed, and either he or someone in his office dated, the re-
turn receipt and accepted delivery of the Union’s demand let-
ter.
Neither Control Services nor Keiler responded to the sec-
ond mailing containing the January 24, 1991 demand letter
and attaching the December 5 demand.
The payroll records introduced into evidence before the
close of hearing, as explained and supplemented by the testi-
mony of a knowledgeable witness, Ralph Alamo, Respond-
ent’s payroll supervisor, show the following:
Cleaning employees employed by Control Services at the
AT & T Lincroft, New Jersey site are paid on a biweekly
basis. Control Services also employs a group of employees
it designates as a shop crew without a permanent work loca-
tion, who are assigned temporarily to particular worksites to
perform extra work. These employees are paid on a weekly
basis.
Control Services assigned a shop crew to the AT & T site
at Lincroft to aid in the startup of that site after it obtained
the contract to supply the cleaning services there.
For the payroll period ending, Thursday, January 17, 1991,
the records show that Control Services employed 24 regular
cleaning employees at the Lincroft location and 17 tempo-
426 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rarily assigned members of a shop crew. The departmental
designation for the Lincroft site is 10B052 and that appears
next to the names of each employee assigned there. How-
ever, the temporary extra workers also had another designa-
tion next to their names as well, 09A311, representing their
inclusion in the shop crew. For the payroll period ending
January 24, 1991, 1 week later, five names only appear, all
members of the shop crew who as noted earlier, were paid
on a weekly basis. For the next biweekly payroll period, end-
ing Thursday, January 31, 1991, the same week in which the
Union’s bargaining demand mailed by certified mail was re-
fused by Control Services and was accepted by its attorney
and agent, Joel Keiler, Esquire, the records show that there
were 23 regular employees assigned to the AT & T Lincroft
worksite and no shop crewmembers, as their temporary as-
signment there had ended the prior week.
For both pay periods ending January 14 and 31, 1991,
Carolyn Owens name appears. Furthermore, among the
names of regularly assigned employees on both January 17
and 31 ending payroll, are those two identified as Control
Service day-shift cleaning employees at Lincroft, Terence
Grenham and Margery Kollmack.
Among the 23 employees whose names appear on the Re-
spondent’s payroll for the period ending January 31, 1991,
are 13 who had been previously employed by ISS at the
Lincroft site, 12 of whom had been members of the bar-
gaining unit represented by Local 32B through the end of
December 1992, and all of whom continued to remain em-
ployed at the site on their hire by Control Services, effective
January 2, 1991. These 13 are Carolyn Owens, Bertha Per-
shing, Phyllis Mehan, Thomas Young, Dorothy Blake, Henry
Williams, Lorraine Adams, Matthew Wilhelm, whose last
name is spelled Willen on the payroll, Elizabeth Carter,
Christina Zwolska, Mary Hargrove, Terence Grenham, and
Margery Kollmack. Eliminating Carolyn Owens from the
group of unit employees at the Lincroft site, as an admitted
supervisor and agent, the unit is reduced to 22, of which a
majority of 12 previous bargaining unit members continued
to be employed by ISS’ alleged successor, Control Services,
at the site. Thus, the unit placement of Elizabeth Carter, al-
leged as a statutory supervisor by Respondent, becomes de-
terminative of the Union’s majority status among the
Lincroft site employees, and will be discussed and dealt with,
in the presentation of Respondent’s defenses and in the anal-
ysis to follow.
B. Respondent’s Presentation of Evidence in Defense to
the Complaint Allegations of its Refusal to Bargain,
Issuance of No-Solicitation Rules, Threats, and
Written Warning
Carolina Owens testified that she was a night supervisor
for Control Services at the AT & T building in Lincroft. She
had been employed in the same position at the same location
by ISS when ISS had the contract for cleaning services at
the site. When she prepared the list of 10 former ISS em-
ployees as of December 31, 1990, whom she recommended
that Control Services retain at the site, she had included Ber-
tha Pershing’s name knowing that Pershing had been most
recently shop steward for Local 32B at the site. All of these
employees, previously named, were employed at the site by
Control Services as of January 2, 1991.
Owens was also shown a four-page list of Control Service
safety, security, and building familiarization requirements
which she testified she was provided when she first started
as supervisor for Control Services and which she posted on
the bulletin board in the Lincroft site cleaning office and
gave to the employees. This list contains no reference to so-
licitation at the worksite, and in particular does not include
paragraph 26 prohibiting soliciting on AT & T premises by
all contractors’ employees which Pershing swore was among
the rules which she received from Owens in January 1991
within a week after Owens first informed employees they
weren’t supposed to take a workbreak and then, in response
to employee objections, reluctantly allowed them to take one
on their work floor. Neither did the document identified by
Owens contain the separate sheet headed control rules of
conduct which in item 6 of the examples of causes for dis-
ciplinary action prohibited soliciting, collecting, or accepting
contributions and/or distributing or collecting papers or mate-
rials during work hours without approval.
The list identified by Owens appeared to be a combination
of employee requirements and rules which appeared on a
separate sheet provided to Pershing with the subheading,
‘‘For AT & T Bell Laboratories, Middletown,’’ but now
without that added identification, and containing three addi-
tional pages of employee requirements and rules, and noting
at the end thereof that failure to comply with the above will
result in disciplinary actions. The separate list which Per-
shing swore she was provided by Owens notes, with under-
lining, as earlier indicated, that it is to be posted in all jani-
torial rooms and must be read by all new cleaners before
starting work. Both the building familiarization list for clean-
ing personnel identified by Pershing and the Control Services
safety, security, and building familiarization requirements
identified by Owens contain certain provisions describing the
employees for whom the requirements were issued as ‘‘Con-
tractor’s employees,’’ leading one reasonably to infer that
AT & T had some role in their preparation and application
to outside employees who work at AT & T’s buildings, such
as the cleaning employees employed by Respondent.
Owens was not able to point to anything relating to or ap-
pearing on the series of pages of employee requirements and
rules which aided in her identification of them as the rules
she actually posted and distributed. While she described them
as very familiar to her because they remain posted on the
bulletin board in her office, Respondent did not produce the
actual, original requirements and rules posted there. Neither
did the set of rules produced by either party identify the spe-
cific worksite to which they applied, certainly not Lincroft,
although the set identified by Pershing included a sheet de-
scribing it as applicable to the AT & T Middletown, New
Jersey location. In addition to Lincroft and Middletown,
Control also supplies cleaning services for a third AT & T
facility located at Freehold, New Jersey.
Owens next admitted that she did post a no-solicitation
rule. She recalled it said that during working hours, anything
other than work would not be discussed. Owens posted this
rule on the office bulletin board after she was made aware
that people were gathering in groups. She didn’t know what
was being discussed, but she just wanted everybody to get
to work. Owens then noted that an AT & T employee had
suggested that she could put something up saying that union
business should not be discussed during working hours. That
427CONTROL SERVICES
3 Some members of the startup shop crew assigned to the Lincroft
site for the first weeks of January 1991 were paid at rates varying
between $7 and $10 per hour. These employees were craftsmen with
special skills who aided in preparing new worksites for the regular
cleaning crews.
notice which she handwrote on a blank piece of paper, re-
mained posted for about 2 days, then disappeared and she
never saw it again.
Owens insisted that she never enforced the rule by ap-
proaching employees personally. She identified the AT & T
official who approached her as Ken Bloss. He had explained
that AT & T employees were not allowed to gather in groups
and discuss union business or whatever, so he didn’t see
where Control Services should allow it. Following this con-
versation she prepared and posted her own notice. Owens did
not consult other Control Service officials before preparing
her notice. She could not recall its exact wording but it did
admonish employees that other than work they shouldn’t be
discussing other things. When it was removed she asked
every employee when they came into her office to sign in
or out if they knew of its whereabouts and no one seemed
to know about it. Owens also noticed that employees stopped
gathering in groups after she had posted the notice.
Owens also recounted that when she first took over her job
for Control she noticed Bertha Pershing picketing. She spoke
to Pershing about it, telling her she didn’t think it was a
good idea for her to stand outside and picket and then come
in the building to work. Owens denied telling Pershing that
if she were to call Control, Pershing would lose her job.
When asked if she had ever said anything to Thomas
Young about passing out petitions, Owens replied that she
had done so in an indirect way. She explained that she had
noticed that on an occasion that Young was working with
equipment, he had left it unattended. When she questioned
him about it, it came out that the reason was because he was
going around with a petition. Owens told him he could not
leave his equipment unattended, because it was dangerous.
The first time it happened, they discussed it. The second
time, she gave him a warning, the warning notice previously
described.
Owens also described Elizabeth Carter’s duties. While em-
ployed by ISS her title had been that of leadperson. When
immediately asked if she had been a supervisor, Owens de-
scribed her as an assistant supervisor. She also was a union
member. Owens knew because Carter complained to her
about having to pay dues. When she moved from ISS to
Control Services, she kept the same job. When then asked
if Carter could actually fire or hire somebody, Owens re-
sponded that if she was not there, Carter could. If she was
not present in the evening at Lincroft, Carter would be in
charge, and was a couple of times.
According to Owens, if Carter told her she thought an em-
ployee should be fired, Owens trusted her judgment and she
would authorize Carter to execute the firing. Carter also had
authority to warn employees, reprimand employees, and
bring them back to rework an area. Significantly Owens’ re-
sponses here show that this authority or significant aspects
of it were not exercised. Thus, Owens described Carter’s fir-
ing authority in the conditional form, responding that ‘‘if she
told me, I trusted her judgment. Yes, she could do it.’’ (Tr.
234.) And, as to Carter’s authority to actually give a written
warning notice if she wanted to, Owens replied ‘‘she could
have.’’
During her cross-examination, Owens confirmed that she
never saw Carter fire or hire anybody, but that while she
knew Carter had disciplined employees, she could not recall
any of their names. The nature of the discipline, was telling
employees if they weren’t doing their job, and telling them
if someone had to go back and do something over, because
it wasn’t done right.
Owens also explained that in her view, when she told Per-
shing her picketing before work wasn’t a good idea, she
thought that if Pershing worked for Control, she should be
happy with working.
Owens also recalled that it was when she spoke to Young
the second time about leaving his equipment unattended that
he told her he had been going around with a petition, that
as the senior man on the job, it was up to him to do so.
Owens assumed the petition had to do with the Union, since
there was nothing else it could be.
Both times she spoke to Young were within the same
week in August and on both occasions Young was sham-
pooing in the lobby area, an open area. The first time he told
her he had gone to the bathroom.
Elizabeth Carter left Respondent’s employ in September
1991. In January 1991, Carter was paid at an hourly rate of
$6.56. Carolyn Owens was paid $10.30 an hour. The hourly
rates of the other regular night-shift cleaning employees3
ranged from a low of $5 per hour paid to Jose Chu to a high
of $6.45 paid to Thomas Young and Henry Williams. The
majority of such employees were paid $6.20 an hour.
Other testimony regarding Elizabeth Carter’s alleged su-
pervisory status came from employee Thomas Young. During
his cross-examination by Respondent’s counsel he was asked
whether Elizabeth Carter had signed the employee petition
seeking union representation which he and Pershing had cir-
culated among employees. She had not. According to Young,
she had not because she was a working supervisor there.
Young was then asked and affirmed that Carter had been a
supervisor for ISS. Then, in response to the next question as
to whether she remained a supervisor for Control, Young
first answered yes, but, then immediately modified that re-
sponse to say that she was either a supervisor or a floor-
walker, to make sure the work got done. Young had earlier
explained that at ISS he had been a supervisor on the second
floor, doing the same work as Carter, meaning that he had
taken care of the second floor, informing Owens what work
wasn’t done, and checking the work out. He had started out
cleaning and shampooing. According to Young, Carter con-
tinued in the same position, as floorwalker checking the
work and reporting what wasn’t done to Owens, after she
was hired by Control Services.
During his redirect examination by counsel for the General
Counsel, Young clarified that when Elizabeth Carter worked
for Control she stayed on the first floor with Carolyn Owens,
where she performed cleaning work and was a working su-
pervisor like he had been for ISS on the second floor.
C. Determining Credibility
I turn first to questions of credibility. The resolution of the
issues as to whether Respondent promulgated and maintained
certain no-solicitation rules, and posted a notice prohibiting
the conduct of union activities, including circulating union
428 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The issue of fact regarding whether Respondent received the
Union’s bargaining demand, disputed by Respondent Counsel Keiler,
under oath, and in argument, has been earlier and separately resolved
in favor of General Counsel and the Union.
petitions by employees on the employer’s premises, even
during their own time, and whether Respondent threatened its
employees with discharge or unspecified reprisals for engag-
ing in union activity, depend, initially, on the finding of facts
regarding them.4
As to the threats allegedly made to Pershing, I credit Per-
shing regarding all of her interchanges with Owens, both on
the picket line and subsequently. Owens did not dispute
Pershing’s testimony as to Owens’ immediate reaction of
staring at her when Owens first saw her picketing. Pershing
exhibited marked restraint in her testimony, in particular ad-
mitting use of language in her interchanges with Owens
which could act to her detriment. I further credit Pershing
that Owens confronted her and threatened her with the loss
of her job if Owens reported Pershing’s participation to man-
agement. Apart from her immediate reaction to Pershing’s
picketing, Owens independently expressed her feelings that
Pershing, as an employee, should be happy with working in-
stead of joining a protest to Respondent’s hiring practices.
By also admittedly voicing displeasure with Pershing’s pick-
eting activity. Owens admitted raising the subject, indeed,
confronting Pershing with her concerns, shortly after her dis-
covery of Pershing’s involvement. These facts aid in my
finding that Owens uttered the threat attributed to her.
Owens did not dispute Pershing’s testimony that she per-
mitted the continued taking of breaktime after Control Serv-
ices took over, provided they did so on their work floor. Nei-
ther did Owens dispute that she provided the cleaning em-
ployees with a list of work requirements and rules. However,
the list identified by Owens contained no restrictions on on-
site solicitations. I credit Pershing that the work rules she re-
ceived from Owens contained these restrictions. It is evident,
and Owens confirmed this, that AT & T was concerned, and
expressed concern to at least Owens, about contractor’s em-
ployees engaging in soliciting, including union soliciting on
its premises. I find that a written restriction to this effect,
item 26 in a building familiarization list which was directed
to be posted in all janitorial rooms and read by all new
cleaners before starting work was distributed by Owens
shortly after Control Services commenced operations at
Lincroft, and shortly after the employee meeting at which the
new Respondent employees had insisted on a continuation of
their breaktime. I also find that at the same time Owens also
distributed the separate sheet listing rules of conduct, includ-
ing as a cause for discipline, ‘‘soliciting . . . or distributing
or collecting papers during work hours without approval.’’
As to Owens’ preparation and posting of a separate prohi-
bition on employee conduct of union business on the prem-
ises, whether on their breaktime or any other time, I credit
Pershing that Owens posted such a notice in her own hand-
writing and told the employees it was from Control Services.
Owens, in her own testimony, acknowledged being urged by
an AT & T official to post something saying union business
should not be discussed during working hours, and com-
plying with this suggestion by posting her own handwritten
notice. While Owens admitted writing a prohibition against
employee discussions of anything other than work during
working hours, she was careful to note that she could not re-
call its exact wording. I find that Owens fully complied with
AT & T’s wishes, already expressed in item 26 received by
Respondent’s employees, and endeavored through these
means to inhibit employee union organizing at the facility
which she believed was taking place during the breaktime
which she had previously authorized.
Pershing is also credited as to Owens’ later approach to
Pershing after Pershing defended her right to picket on her
own time.
With respect to Owens’ exchanges with Young, I credit
Thomas Young that Owens approached him during the time
in early August 1991 that he was circulating among fellow
employees the petition for union representation and told him
that if he didn’t stop his union activities he was going to get
in trouble. Owens was well aware, and admitted, that she
learned from Young himself, as to his role in soliciting sig-
natures on the petition while he was so engaged. It was also
later given to her by Pershing and Young one evening after
they had collected 13 signatures.
A search of Respondent’s various work rules also show no
rule relating to the infraction with which Young was charged
in the written warning he was given by Owens, to wit, leav-
ing his equipment unattended. The other infraction asserted
in the warning was talking to other employees.
I infer that Owens, having received from Young, another
petition as well, this one seeking the reinstatement of a dis-
charged employee, was well aware of Young’s leadership
role in organizing employee support for the Union. I credit
Young’s own testimony that his various solicitations were
limited to his own time.
While Young’s affidavit contains some differences from
Pershing’s testimony, not noting her participation in solic-
iting signatures for the employee, prounion petition, and in
failing to refer to Owens’ grant of permission to take a
workbreak and in concluding that the workbreak was 15
minutes’ duration, not 5 as asserted by Pershing, Young did
affirm that the employees continued to take a daily break,
clearly with Owens’ knowledge and at least tacit approval.
I find that these differences are insufficient to discredit either
Young or Pershing’s testimony, and, further, I am also influ-
enced in this regard by the fact that Young could not, be-
cause of his disability, read his statement prior to his signing
of it.
Analysis and Conclusions
On the basis of the credibility resolutions I have made, I
conclude that by informing employee Bertha Pershing that if
she stayed on the picket line, and were she to call Control
Services Pershing would wind up losing her job, Supervisor
Carolyn Owens threatened Pershing with discharge for en-
gaging in protected union activity in violation of Section
8(a)(1). Pershing’s conduct in picketing before starting work
in a concerted effort by the Union to protest Control Serv-
ices’ failure to employ union members was Section 7 con-
duct for engaging in which her continued tenure in her job
could not be threatened. I also conclude that Owens also
threatened employee Thomas Young with unspecified repris-
als in violations of the Act when she told him at the time
he was circulating the petition for union recognition by Con-
trol Services among employees that if he didn’t stop what he
was doing, he was going to get in trouble. Clearly, her com-
429CONTROL SERVICES
ments related to his Section 7 conduct which Young readily
acknowledged having engaged in and which he vocally de-
fended in responding to this threat. The threats to both Per-
shing and Young clearly tended to interfere with and inhibit
their free exercise of employee rights under the Act, thus
meeting the test required to be applied to determine their ille-
gality.
The threat to Young was shortly followed by a written
warning which referenced his talking to fellow employees
and his leaving company equipment unattended. Owens in
her recital failed to reference any instance in which Young
had conversations with other employees which caused an in-
terference with work duties. Young has been credited in de-
nying any organizational approaches to fellow employees on
their working time. It also appears that Owens herself failed
to distinguish between working time union solicitations in
work areas which could be prohibited and nonwork area so-
licitations in which employees could legitimately engage on
their own time. Thus her handwritten notice prohibited union
solicitation or conduct on the premises without limitation,
and the printed posted notices included prohibitions on solic-
iting on AT & T premises by all contractor’s employees dur-
ing work hours without approval. There is thus nothing in
the record which shows that Owens was expressing concern
mainly or even solely with Young’s worktime conduct. It is
evident that Owens was keenly aware and concerned with
Young’s union solicitation activity both from her prior threat
to Young as well as her testimony acknowledging her knowl-
edge of Young’s conduct in this regard derived and inferred
from Young himself and Young’s and Pershing’s testimony
recounting their delivering the employee union petition to
her. Further, by basing the warning and her oral explanations
of it to Young on his leaving company equipment unat-
tended, an alleged infraction not specified in any work rule
or requirement, Owens and the Respondent were vulnerable
to the conclusion, which I now reach, that Young’s written
warning was substantially motivated by his known and his
disapproved union activity and that by issuing it to him Re-
spondent violated Section 8(a)(1) and (3) of the Act. Under
the Board’s Wright Line decision, 251 NLRB 1083 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), and approved by the Supreme
Court in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983), the General Counsel has established Re-
spondent’s unlawful motivation by a preponderance of the
evidence and Control Services has been unable to prove that
the warning would have been issued to Young in the absence
of his protected activity.
With respect to the no-solicitation rules which Owens
posted and circulated, each of them fails to comply with the
requirements of the law that employers refrain from inter-
fering with and restraining employees in the exercise of the
rights to engage in union solicitation and related conduct
protected by Section 7 of the Act. In one rule Respondent
prohibited solicitation on AT & T premises. Such an overly
broad prohibition encompasses union solicitation as well as
all others and in all areas of the premises, including public
and work break areas. The record established that Owens,
and thus Respondent, permitted daily breaktime by employ-
ees on their own work floors. Such a broad prohibition
reaches employee Section 7 conduct engaged in on their own
time at break, at lunch, if eating on the premises, as well as
that engaged in before and after work in the facility and the
parking lot. Because the rule is overly broad, and Respondent
has failed to show that its issuance serves some legitimate
employer interest, the rule is invalid on its face. Southwest
Gas Corp., 283 NLRB 543 (1987); Brigadier Industries
Corp., 271 NLRB 656, 657 (1984). While Owens pointed to
the posting of her own handwritten prohibition on union con-
duct and solicitation as related to her observing employees
gathering in groups talking and some minor things were not
getting done, it is evident from Owens’ own later testimony
that she drew up the wording on the notice only after an AT
& T representative told her to inform employees that they
could not discuss union activities during work hours. By di-
recting her prohibition to union conduct only, Owens has
demonstrated the Respondent’s discriminatory intent.
Owens’ handwritten notice as well as the printed posted
language making soliciting or distributing papers during
work hours without approval, a ground for disciplinary ac-
tion, also both suffer from another legal infirmity, since Our
Way, Inc., 268 NLRB 394, 394–395 (1983), that such ambig-
uous language, by failing to make clear that only solicitations
on employees’ working hours are being prohibited, and not
that on the employees’ own time, is presumptually invalid.
That presumption has not been overridden in this case in the
absence of any evidence that such a ban is necessary to
maintain production or discipline or serve some other legiti-
mate interest. See Brigadier Industries Corp., supra, and Wil-
liam H. Block Co., 150 NLRB 341, 342–343 (1964). I thus
conclude that each of the posted no-solicitation rules violates
Section 8(a)(1) of the Act.
Respondent’s defense that none of the rules was enforced
is incorrect and unavailing. Their posting as well as their cir-
culation to each employee alone demonstrated to the employ-
ees their force and authority. Owens’ conduct in confronting
and threatening Pershing and Young about their Section 7
conduct on their own time on and in the vicinity of Respond-
ent’s work locations graphically shows Respondent’s actual
enforcement of the rules.
Owens also made clear in drafting and posting her own
prohibition that it came from Control Services.
Finally, I turn to the allegation of Respondent’s refusal to
bargain. General Counsel must, of course, first establish that
Control Services was a successor employer to ISS in the de-
livery of cleaning services at the AT & T Lincroft site. In
its answer to the complaint, Respondent denied that it con-
tracted with AT & T at its Lincroft, New Jersey facility to
provide the cleaning and maintenance services previously
provided by ISS contractors and since that date has assumed
and been engaged in the same business operations at the
same location as ISS. Respondent has further denied that it
employed as a majority of its employees at the Lincroft site
individuals who were previously employees of ISS at the
same location. Finally, Respondent denied that by virtue of
the foregoing it has continued as the employing entity and
is a successor to ISS.
In NLRB v. Burns Security Services, 406 U.S. 283 (1972),
the Supreme Court held, inter alia, that where the bargaining
unit remains unchanged and a majority of the employees
hired by the new employer were represented by a recently
certified bargaining agent the Board was entitled to order the
new employer to bargain with the incumbent union.
430 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Respondent cites to support its erroneous contention on the gov-
ernment’s burden here the case of NLRB v. Beacon Light Christian
Nursing Home, 825 F.2d 1076 (6th Cir. 1987). Nothing at all in that
court’s opinion supports Respondent’s claim.
As to whether the new employer is a successor bound to
recognize and bargain with the incumbent union, the Board
looks to see whether, (1) a majority of its employees in an
appropriate unit at or after the time at which the union made
its bargaining demand are workers who had been employed
by the predecessor, and (2) if similarities between the two
operations manifest a substantial continuity between them.
Premier Products, 303 NLRB 161 (1991); Capitol Steel &
Iron Co., 299 NLRB 484, 486 (1990).
The factors for making the enterprise continuity determina-
tion were summarized by the Supreme Court in Fall River
Dyeing Corp. v. NLRB, 482 U.S. 27 at 43, as follows:
[W]hether the business of both employers is essentially
the same; whether the employees of the new company
are doing the jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and has basically the same body of customers.
The Supreme Court, in Fall River also made clear that the
obligation of the successor employer applies even where the
union had not been certified just before the transition in em-
ployers. A union, the recognized exclusive representative of
the prior employer’s employees under an established collec-
tive-bargaining relationship, is entitled to a rebuttable pre-
sumption of majority status which continues despite the
change in employers, so long as the new employer is, in fact,
a successor of the old employer and the majority of its em-
ployees were employed by its predecessor.
Where there is a hiatus between the old employer’s demise
and the new employer’s startup, the Supreme Court in Fall
River concluded that this is but one factor in determining
continuity of the employing enterprise and is relevant only
when there are other indicia of discontinuity. Id. at 45. Fur-
ther, the Supreme Court in Fall River affirmed and applied
as reasonable in the successorship context the Board’s ‘‘sub-
stantial and representative complement’’ rule which fixes the
moment when the determination is to be made as to whether
a majority of the successor’s employees are former employ-
ees of the predecessor and thus the moment when the bar-
gaining obligation arises. Id. at 47–48. In Fall River, as in
the instant case, there was a startup period. The Court noted
that the Board looks to a number of factors to determine
when a substantial and representative complement has been
reached, including whether the job classifications for the op-
eration were substantially filled, whether the operation was
in substantially normal production, and the size of the com-
plement on the date in question and the time expected to
elapse before a substantially larger complement would be at
work as well as the relative certainty of the employer’s ex-
pected expansion. Id. at 49.
Finally, the Supreme Court, in Fall River, affirmed as rea-
sonable the Board’s ‘‘continuing demand’’ rule in the
successorship situation, holding that a union bargaining de-
mand made prematurely remains in force until the moment
when the employer attains the substantial and representative
complement. Id. at 52. The duty to bargain on the part of
the successor is triggered only when the union has made a
bargaining demand.
Applying these legal principles to the facts of record, and
putting aside for the moment the issue of the Union’s major-
ity status, I conclude that Control Services was the successor
to ISS in the business of performing cleaning and mainte-
nance services at the Lincroft site. Despite Respondent’s
pleading denial, it is clear that it succeeded ICC as cleaning
contractor at the Lincroft location. The business performed
by Control Services differed not at all from that of the prior
employer at the same site. Indeed, Control Services has con-
tinued to operate supplying the same cleaning services, per-
forming the same jobs, under the same working conditions,
work schedules and shifts, and same numbers of employees
assigned to each of the two day and evening shifts, and uti-
lizing the same overall supervisor, Carolyn Owens, as its
predecessor, ICC.
The startup period, during which Control Services utilized
a special work crew which it assigned for a specific limited
purpose and time, concluded with the pay period ending Jan-
uary 24, 1991. Starting with the pay period commencing the
next day, January 25, 1991, Respondent was employing its
regularly assigned work crew, having removed the specially
assigned crewmembers, filled all job classifications, and
reached its normal service complement of employees at the
Lincroft worksite.
As noted earlier, the unit placement of employee Elizabeth
Carter is determinative as to whether the Union achieved ma-
jority status in the bargaining unit at the time Control Serv-
ices reached its substantial and representative complement of
employees and the Union made its bargaining demand.
In determining Carter’s status, it is important to note that
Board decisions have continually held that an employee’s
title does not determine his status. See, e.g., Waterbed
World, 286 NLRB 425 (1987). There must be actual evi-
dence that an individual alleged as a supervisor had or pos-
sessed one or more of the indicia of supervisory authority set
forth in Section 2(11) of the Act. In Polynesian Hospital
Tours, 297 NLRB 228 (1989), the Board held that evidence
that an employee who observed the work of a work crew as-
signed to clean vehicles by a higher-level person to ascertain
that the crew works steadily rather than ‘‘goofs off,’’ and
where the members of the crew knew their jobs well and
needed little supervision, was not a supervisor. He neither
exercised the independent judgment essential to a finding of
supervisory status under the Act nor possessed any of the
primary indicia of supervisory status. The Board noted that
the record contained no evidence that the employee’s direc-
tions of the wash crew or his authority to tell employees to
get back to work if they were malingering or sleeping went
beyond the routine direction of simple tasks or the issuance
of low-level orders that it had found does not constitute su-
pervisory authority, citing Black Kettle, Ltd., 263 NLRB 380,
385 (1982). Accord: Esco Corp., 298 NLRB 837 (1990); The
Door, 297 NLRB 601 (1990).
It is also clear, notwithstanding Respondent’s argument to
the contrary,5 that the burden of establishing an individual’s
supervisory status is on the party seeking to exclude that em-
ployee from the unit. Ohio Masonic Home, 295 NLRB 390
(1989); Phelps Community Medical Center, 295 NLRB 486
at 489–490 (1989).
431CONTROL SERVICES
Applying these legal principles to the facts of record, I
conclude and find that Respondent has failed to sustain its
burden of showing that Carter exercised any supervisory in-
dicia, or that she acted with independent authority in over-
seeing in any way the work of the evening cleaning crew to
which she was assigned and which Supervisor Owens herself
directed during her shift.
The record is devoid of, and Respondent has failed to sup-
ply, any probative evidence that in acting as leadperson,
Carter acted in other than a routine manner in watching other
employees and reporting to Owens work not completed, or
in having employees do work over again. Owens’ testimony
is much too sketchy and general to support a conclusion that
Carter exercised independent judgment in the area of the rel-
atively simple and uncompleted work to which the cleaning
staff was assigned.
Respondent did not examine either of General Counsel’s
witnesses as to his or her working relationship with Carter
during their evening work shift. Neither did Respondent call
any witness with specific, detailed testimony as to Carter’s
claimed impact on the work assignments or tenure of any
employee. In this regard, Respondent’s failure to call Carter
as a witness casts further doubt on Respondent’s claim.
While she had since left Respondent’s employ, there was no
assertion that her whereabouts were unknown or that she
could not be contacted or was not available as a witness to
present testimony about her own work functions and status.
I can only conclude and infer that her testimony would not
have supported Respondent’s contention. Greg Construction
Co., 277 NLRB 1411 (1985); Pur O Sil, Inc., 211 NLRB
333, 337 (1974).
The general testimony from the various witnesses does not
in, itself, convince an objective observer that Carter was, or
even for the most part was regarded by the employees as, a
supervisor. When the employees went to a supervisor they
went to Owens. Even when counsel specifically asked Young
if Elizabeth Carter was a supervisor, Young immediately
clarified his categorization of her and classified her as a
‘‘floorwalker’’; one who makes sure that all the jobs are
done. This task was exercised routinely and without any as-
sertion of independent judgment. In addition, Carter herself
used to complain to Owens about paying union dues. Lastly,
although she received higher wages, the difference between
her wages and a standard employee was minimal. In
Waterbed World, supra, the identical wage issue was consid-
ered and the Board held that a slight increase in salary is
‘‘not probative of supervisory status absent evidence of inde-
pendent judgment.’’
I thus conclude that Elizabeth Carter was not a supervisor
within the meaning of Section 2(11) of the Act. Thus, at the
time when the Union made its demand to bargain it rep-
resented a majority of the employees in the bargaining unit
and was entitled to recognition as the employees’ bargaining
representative.
At the time the Union made its demand, Respondent had
already reached its substantial and representative complement
of employees, so that the theory of a continuing demand
need not be applied here. Insofar as the Union’s earlier De-
cember 5, 1990 demand letter is concerned, while a theory
of continuing demand could be urged with respect to it, it
preceded by some weeks the Respondent’s succeeding to
ISS’ function as cleaning contractor at the Lincroft site in
late December, and I do not understand General Counsel’s
urging the theory’s application since the later January 24,
1991 letter, while enclosing the earlier letter, independently
makes proper and timely demand to bargain.
Finally, there appears to have been, at most, a few days’
hiatus, if at all, from ISS’ completion of its service obliga-
tions, to Control Services’ assumption of them, and for this
reason alone, aside from the many factors independently sup-
porting the finding of successorship, it cannot be used to de-
feat the conclusion that Respondent was successor to ISS.
By ignoring the Union’s demand, and by failing to recog-
nize and bargain in good faith with it, Respondent breached
its bargaining obligations under the Act.
Respondent nevertheless argues in its brief that because
the unit previously included in the predecessor’s collective-
bargaining agreement included supervisors and guards and
that unit continued intact under Control Services’
successorship, it was clearly inappropriate and Respondent
could refuse to recognize or bargain with the Union with re-
spect to such a unit.
The evidence does not support Respondent’s bald assertion
that supervisors and guards were included in the prede-
cessor’s labor agreement with the Union. The recognition
clause of the collective agreement in evidence provides that
the employer recognizes the Union as the sole and exclusive
collective-bargaining agent of all its cleaners employed at
AT & T in Lincroft, New Jersey. Neither supervisors nor
guards are specifically included or mentioned in any other ar-
ticle. There is no evidence that any guards or any supervisors
other than Owens were employed by ISS or that the parties
intended to include them in the bargaining unit. The location
rider to the agreement executed by ISS and the Union’s pred-
ecessor lists various work categories, including group lead-
ers. Again, nothing in the record supports Respondent’s
claim that group leaders were statutory supervisors. And the
limited evidence Respondent offered respecting Elizabeth
Carter’s status shows otherwise. Finally, the complaint alle-
gation as to unit, including all cleaning employees, but ex-
cluding all office clerical employees, managerial employees,
guards, and supervisors under the Act, appears to be con-
sistent with the contract provision, if not spelled out in haec
verba, and with the predecessor-union contract relationship.
There is no warrant for Respondent’s assertion that the unit
alleged in the complaint was manufactured or that super-
visors are included in the unit alleged as appropriate and in
which Respondent refused to bargain. The Union’s letter de-
manding bargaining for Respondent’s cleaners at AT & T in
Lincroft, New Jersey, is consistent with the exclusion of su-
pervisors and the unit description contained in the contract
with Control Services’ predecessor, and Respondent has to
date failed to respond to that demand in any way, including
any response that the unit asserted is inappropriate because
of an asserted inclusion of supervisors or guards.
CONCLUSIONS OF LAW
1. The Respondent, Control Services, Inc., is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Local 32B-32J, Service Employees International Union,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
432 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The record reflects that Young ceased employment shortly after
receiving the warning. The warning, however, should not adversely
affect his present or future employment and, if Respondent is unable
to correspond with Young, the Union may still be able to contact
him about Respondent’s undertaking in this regard on his behalf.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
3. By threatening its employees with discharge and un-
specified reprisals because they engaged in activity in sup-
port of the Union, Respondent has interfered with, restrained,
and coerced its employees in the exercise of their Section 7
rights in violation of Section 8(a)(1) of the Act.
4. By maintaining in force and effect rules prohibiting em-
ployees from engaging in union solicitations and distributions
during working hours or at any location on the premises of
its customers, the Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act.
5. By giving a written warning to its employee, Thomas
Young, Respondent has discriminated, and is discriminating,
in regard to the hire or tenure or terms and conditions of em-
ployment of its employees, thereby discouraging membership
in a labor organization, and has thereby engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
Act.
6. By failing and refusing to recognize and bargain with
the Union as the exclusive collective-bargaining representa-
tive of its employees in a unit appropriate for the purposes
of collective-bargaining consisting of all cleaning employees
employed by it at the AT & T facility in Lincroft, New Jer-
sey, excluding all office clerical employees, managerial em-
ployees, guards, and supervisors as defined in the Act, Re-
spondent has failed and refused, and is failing and refusing,
to bargain collectively and in good faith with the representa-
tive of its employees, and has thereby engaged in, and been
engaging in, unfair labor practices in violation of Section
8(a)(1) and (5) and Section 8(d) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that it cease and desist therefrom and
take certain affirmative actions which are necessary to effec-
tuate the policies of the Act.
I shall recommend that Respondent, on request, bargain in
good faith with the Union as exclusive representative of its
unit employees and embody any understanding reached in a
signed agreement. I shall also recommend that Respondent
expunge from its files all references to the written warning
it issued to Thomas Young and notify both Young and the
Union, in writing, that it has done so and that the warning
will not be used against Young in any way.6 Because of its
proclivity to violate the Act, Control Services, 303 NLRB
481 (1991), where the Board found that Respondent violated
Section 8(a)(1), (3), and (5) of the Act by a variety of unlaw-
ful acts, including requiring employees to remove union in-
signia, constructively discharging nine employees, and unilat-
erally changing wages and an existing condition of employ-
ment of providing union access to employees and Control
Services, 305 NLRB 435 (1991), where the Board found it
unlawfully discharged six employees because of their union
activities in violation of Section 8(a)(1) and (3) of the Act,
and it had engaged in a variety of 8(a)(1) violations, includ-
ing as in the instant case, maintaining rules prohibiting em-
ployees from engaging in union solicitations or distributions
during working hours at various locations on the premises of
Control’s customers, in both of which cases the Union was
the Charging Party and it and its employee adherents were
the object of Respondent’s unlawful conduct at various work
locations in New Jersey other than Lincroft AT & T, I shall
also recommend that the Board in this case issue a broad
cease-and-desist order on the authority of Hickmott Foods,
242 NLRB 1357 (1979); NLRB v. Entwistle Mfg. Co., 120
F.2d 532, 536 (4th Cir. 1941), and NLRB v. Express Pub-
lishing Co., 312 U.S. 426 (1941). I shall finally recommend
that Respondent be required to post a notice informing its
employees of its violations of the Act and its undertakings
to comply therewith.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
1. The Respondent, Control Services, Inc., Secaucus, New
Jersey, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge or unspec-
ified reprisals because they engaged in activities in support
of Local 32B-32J, Service Employees International Union,
AFL–CIO or any other union.
(b) Issuing a written warning to employees because they
have engaged in union activities.
(c) Maintaining in force and effect rules prohibiting em-
ployees from engaging in union solicitations or distributions
during working hours or at any location on the premises of
its customers.
(d) Refusing to bargain collectively with Local 32B-32J,
Service Employees International Union, AFL–CIO as the ex-
clusive representative of its employees in the following unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment:
All cleaning employees who may be employed at AT
& T in Lincroft, New Jersey, but excluding all office
clerical employees, managerial employees, guards and
supervisors as defined in the Act.
(e) In any other manner interfering with, restraining, or co-
ercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Local 32B-
32J, Service Employees International Union, AFL–CIO as
the exclusive representative of all employees employed by it
in the unit described in paragraph 1(c), above.
(b) Remove from its files any reference to the written
warning it issued to Thomas Young and notify Young and
the Union in writing that this has been done and that the
warning will not be used against Young in any way.
433CONTROL SERVICES
8 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.’’
(c) Post at its facilities including its office and jobsite lo-
cated at AT & T in Lincroft, New Jersey, copies of the at-
tached notice marked ‘‘Appendix.’’8 Copies of the notice, on
forms provided by the Regional Director for Region 22, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with Local
32B-32J, Service Employees International Union, AFL–CIO
as the exclusive representative of our employees in the fol-
lowing unit with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
All cleaning employees who may be employed at AT
& T in Lincroft, New Jersey, but excluding all office
clerical employees, managerial employees, guards and
supervisors as defined in the Act.
WE WILL NOT issue written warnings to our employees be-
cause they have engaged in union activities.
WE WILL NOT maintain in force and effect rules prohib-
iting our employees from engaging in union solicitations or
distributions during working hours or at any location on the
premises of our customers.
WE WILL NOT threaten our employees with discharge or
unspecified reprisals because they have engaged in activities
in support of Local 32B-32J, Service Employees Inter-
national Union, AFL–CIO or any other Union.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL recognize and, on request, bargain with Local
32B-32J, Service Employees International Union, AFL–CIO
as the exclusive collective-bargaining representative of our
employees employed by us in the unit described above.
WE WILL notify employee Thomas Young and the Union
in writing that we have removed any reference to the written
warning we issued to him and that we will not use the warn-
ing against him in any way.
CONTROL SERVICES, INC.