ISS Facility Services, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 23, 2015

29-CA-133335 (N.L.R.B. Mar. 23, 2015)

JD(ATL)–05–15
Jamaica, NY
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE
ISS FACILITY SERVICES, INC.
and Case 29–CA–133335
GWENETTE ADAMS, an Individual
and
LOCAL 210, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
Party in Interest
LOCAL 210, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS
and Case 29–CB–134137
GWENETTE ADAMS, an Individual
Mathew Jackson, Esq. and Noor I. Alam Esq.,
for the General Counsel.
Andrew P. Marks, Esq., for the Company.
Andrew S. Hoffmann, Esq., for the Union.
DECISION
Statement of the Case
William Nelson Cates, Administrative Law Judge. This case was tried before me in
Brooklyn, New York, on January 6, 2015. The charges initiating cases 29–CA–133335 and
29–CB–134137 were filed by Charging Party Gwenette Adams (Charging Party) on July 21,
JD(ATL)–05–15
2
and August 4, 20141, against ISS Facility Services, Inc. (the Company) and Local 210,
International Brotherhood of Teamsters (Local 210), respectively, both charges were thereafter
amended. After an investigation by counsel for General Counsel (government) of the National
Labor Relations Board (Board), acting through its Regional Director for Region 29, issued an
Order consolidating cases, consolidated complaint and notice of hearing (complaint) on 5
October 16. The complaint alleges the Company, on or about December 18, 2013, granted
recognition to Local 210, as the exclusive collective-bargaining representative, of its employees
engaged in the function(s) of cleaning, maintenance, project and janitorial services at its John
F. Kennedy International Airport in Jamaica, New York (JFK), terminal 2 even though the
Local 210 did not represent a majority of the terminal 2 unit employees. It is alleged that on or 10
about April 3 the Company and Local 210 mutually executed and have since maintained and
enforced a collective-bargaining agreement, effective by its terms from March 2014 to
February 28, 2017, and applicable to employees in the terminal 2 unit. It is also alleged the
collective-bargaining agreement provides for a union-security clause for the employees in the
terminal 2 unit. It is alleged that by engaging in the above conduct the Company and Local 21015
have encouraged terminal 2 unit employees to join and assist Local 210. It is alleged that by
letter dated July 8, Local 210, by its secretary-treasurer and principal officer, George Miranda
(Local 210 Officer Miranda) threatened employees with loss of employment unless they
executed dues check-off authorizations or otherwise joined or assisted Local 210 even though
Local 210 was not the lawfully recognized exclusive collective-bargaining representative of the 20
terminal 2 unit employees. It is alleged that on July 24, Local 210 Officer Miranda or Local
210 Business Agent Adrian Merced (Local 210 Business Agent Merced) at JFK Delta terminal
2 threatened employees with loss of employment unless they executed dues check-off
authorizations or otherwise joined or assisted Local 210 and threatened employees with
unspecified reprisals because employees filed charges with the Board. It is alleged Local 21025
and the Company’s actions violate Section 8(a)(1),(2), and (3) and Section 8(b)(1)(A) and
8(b)(2) of the National Labor Relations Act. (the Act).
The Company and Local 210, in their answers to the complaint, and at trial, deny
having violated the Act in any manner alleged in the complaint.30
The parties were given full opportunity to participate, to introduce relevant evidence, to
examine and cross-examine witnesses, and to file briefs. The parties entered into a written 15
paragraph (with certain subparagraphs) stipulations of fact which was received into the record
as a joint exhibit, and, a stipulation regarding admissibility of nine specific documents, which 35
documents were received into evidence as a joint exhibit. I carefully observed the demeanor of
the witnesses as they testified and I rely on those observations here. I have studied the whole
record, and, based on the detailed findings and analysis below, I conclude and find the
Company and Local 210 violated the Act as indicated.
40

1
All dates here are 2014 unless otherwise specified.
JD(ATL)–05–15
3
Findings of Fact
I. Jurisdiction, Labor Organization Status and Supervisory and/or Agency Status
The Company which is a corporation with a principal office and place of business 5
located at 1019 Central Parkway North, San Antonia, Texas, has been, and continues to be,
engaged in the business of providing facility maintenance and cleaning services to businesses,
including businesses at JFK Airport in Jamaica, New York. In the past 12 months ending
September 30, a representative period, the Company purchased and received at its JFK Airport
facility goods and materials valued in excess of $50,000 from suppliers located outside the 10
State of New York. The parties admit, and I find, the Company is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
The parties admit, and I find, Local 210 is a labor organization within the meaning of
Section 2(5) of the Act.15
The parties admit, and I find, that Company North American Vice President of Labor
Relations Phillip Collins (Company Vice President Collins) has been, and continues to be, a
supervisor and agent of the Company within the meaning of Section 2(11) and (13) of the Act.
The parties also admit, and I find, that Local 210 Officer Miranda and Local 210 Business 20
Agent Merced have been, and continue to be, agents of the Union within the meaning of 2(13)
of the Act.
II. Alleged Unfair Practices
25
Facts
The facts set forth are from the parties stipulations of fact, stipulated exhibits,
admissions and, as indicated, credited testimony.
30
The Company is a global corporation headquartered in Copenhagen, Denmark, and
provides integrated facilities services - including security, landscaping, food service or catering,
janitorial and engineering services - to a variety of clients across multiple industries. Under a
contract with Delta Air Lines, Inc. (Delta), it currently provides cleaning and facility
maintenance services to Delta at terminal 2 and terminal 4 of JFK Airport in Jamaica, New 35
York. The Company’s cleaning and facility maintenance employees at JFK are regularly
assigned to work in either terminal 2 or terminal 4. The job performance of the Company’s
cleaning and facility maintenance employees at JFK is overseen by company supervisors who
are regularly assigned to supervise employees in either terminal 2 or terminal 4. Company
supervisors assigned to supervise employees in terminal 2 do not regularly supervise employees 40
working in terminal 4, and, supervisors assigned to supervise employees in terminal 4 do not
regularly supervise employees working in terminal 2. Above the level of direct supervisor, the
Company’s cleaning and facility maintenance employees at JFK terminal 2 and terminal 4 are
jointly supervised by the Company’s JFK facility manager.
45
JD(ATL)–05–15
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On or about November 1, 2013, the Company assumed a contract to provide facility
maintenance and cleaning services to Delta at JFK terminal 2. At the time the Company
assumed the contract to provide facility maintenance and cleaning services to Delta at JFK,
employees engaged in the function(s) of cleaning, maintenance, project and janitorial services
at JFK terminal 2 (Terminal 2 Unit) were represented by Local 811, United Service Workers 5
Union, IUJAT (Local 811). At the time the Company assumed the contract to provide facility
maintenance and cleaning services to Delta at JFK, employees engaged in the function(s) of
cleaning, maintenance, project and janitorial services at the portion of JFK terminal 4 operated
by Delta (Terminal 4 Unit) were represented by Local 2l0, International Brotherhood of
Teamsters. Local 210 has represented cleaning and facility maintenance employees at JFK10
terminal 4 since at least 2001.
On about November 11, 2013, the Company and Local 210 entered a Recognition
Agreement by which the Company recognized Local 2l0 as the exclusive collective-bargaining
representative of its employees in the Terminal 4 Unit. This recognition was supported by 15
Local 210's showing it had obtained authorization cards signed by a majority of the 49
employees in the Terminal 4 Unit. Local 210 Business Agent Merced testified he presented
approximately 40 signed authorization cards from employees of the Terminal 4 Unit.
On about November 14, 2013, Local 811 disclaimed its interest in representing20
employees in the Terminal 2 Unit. Local 811 notified the Company in writing of its disclaimer
of interest and posted notices to employees to that effect inside the workplace at JFK terminal
2. Local 811 President Richard Kolb’s letter to the Company states:
I write on behalf of Local 811, United Service Workers Union, International25
Union of Journeymen and Allied Trades (hereinafter referred to as “Local 811”).
Please be advised that as of November 15, 2013, Local 811 shall no longer act in
furtherance of its recognition as the bargaining representative for any employees
employed by ISS Facility Service at the airports operated by the Port Authority of
New York and New Jersey. Please be further advised that as of November 15, 30
2013, Local 811 abandons its representative status and disclaims interest in the
aforementioned employees. Should you have any further questions, please
contact the undersigned.
On about December 18, 2013, the Company and Local 210 entered a Recognition35
Agreement by which the Company recognized Local 2I0 as the exclusive collective-bargaining
representative of its employees engaged in the function(s) of cleaning, maintenance, project and
janitorial services at JFK terminal 2 and the portion of JFK terminal 4 operated by Delta
(Combined Unit). This recognition was supported by the Union's showing that it had obtained
authorization cards signed by a majority of employees in the Combined Unit. There were 40 40
employees assigned to terminal 2 and 49 employees assigned to Terminal 4 at that time for a
total of 89 Combined Unit employees. Local 210 Business Agent Merced testified he and
International Union Representative Cynthia Rivera visited with Terminal 2 Unit employees in
approximately November 2013 to try to organize the employees. According to Merced he and
Rivera were able to obtain approximately four signed authorization cards from the Terminal 2 45
Unit employees. Local 210, in support of its majority status to the Company in the Combined
JD(ATL)–05–15
5
Unit, demonstrated it represented 49 (all) unit employees at terminal 4 combined with 4
terminal 2 employees for a total of 53 of the 89 Combined Unit employees.
At the time the Union and the Company entered the Recognition Agreement on about
December 18, 2013, Local 210 had not demonstrated to the Company that it had obtained5
signed authorization cards from a majority of employees in the Terminal 2 Unit and had not
otherwise demonstrated that it enjoyed the support of a majority of employees in the Terminal
2 Unit.
On December 23, 2013, Local 811 filed a representation election petition with Region10
29 of the Board (Region 29) in Case 29–RC–119522, seeking an election among all "full-time
and regular part-time cleaners, window cleaners, project workers and lead persons employed by
[the Company]" at JFK Terminal 2. Local 210 joined the proceedings in Case 29–CA–119522
as an intervenor. On January I0, the Regional Director for Region 29 approved a Stipulated
Election Agreement in Case 29–RC–l19522, mutually executed by the Company, Local 210 and15
Local 811 on January 9. The parties to the aforementioned Stipulated Election Agreement
agreed that a bargaining unit comprised of all “full-time and regular part-time building
cleaners, employed by the [Company]” at JFK Delta terminals 2 and 4 was an appropriate unit
for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.
20
In accordance with the terms of the Stipulated Election Agreement in Case 29–RC–
119522, the Company posted copies of a notice of election inside wall-mounted glass
containers near the employee timeclocks at the Company facilities in JFK Delta terminals 2 and
4, and above the time clock at terminal 2. The notices of election remained posted at the
Company’s facilities at JFK during the period January 23– 27. On about January 28, the 25
Regional Director for Region 29 issued an Order granting Local 811's request to withdraw its
petition in Case 29–RC–1 19522 and cancelling the election scheduled in that case.
Local 210 and the Company executed a collective-bargaining agreement covering
employees in the Combined Unit on April 1 3, respectively. This collective-bargaining 30
agreement was made effective from March 1 through February 28, 2017. The collective-
bargaining agreement in subparagraph 10(b) provides:
It shall be a condition of employment that all Employees of the Company covered
by this agreement, who are members of the Union in good standing on the 35
effective date of this agreement, shall remain members in good standing or pay all
periodic dues, initiation fees and assessments as required by the Union and those
who are not members on the effective date of this agreement or execution thereof,
whichever is later, shall become and remain members in good standing in the
Union or shall pay initiation fees and periodic dues and assessments as required 40
by the Union.
It shall also be a condition of employment that all employees covered by this
agreement and hired on or after its effective date or execution thereof whichever
is later, shall on or after the thirty-first (31st) day following the beginning of such 45
employment become and remain members in good standing in the Union or pay
initiation fees and periodic dues and assessments as required by the Union. An
JD(ATL)–05–15
6
employee who has failed to acquire, or thereafter maintain, membership in the
Union as herein provided, or to pay initiation fees or periodic dues shall be
terminated seventy two (72) hours after the Company has received written notice
from an authorized representative of the Union, certifying that membership has
been, and is continuing to be, offered to such employee on the same basis as all5
other members and, further, that the employee has had notice and opportunity to
make all dues and initiation fee payments.
Charging Party Adams has worked as a cleaning employee at JFK since 2008, cleaning
gate areas, restrooms and security checkpoint areas. She works the morning shift at terminal 210
from 5:30 a.m. until 2 p.m. daily except Thursdays and Fridays. Adams testified she has never
been assigned by the Company to work at terminal 4. According to Adams, there are 17 other
cleaning employees on her terminal 2 morning shift and she has never seen any cleaning
employees working her shift she did not recognize as regularly assigned terminal 2 employees.
Adams, on direct examination, testified she never came in contact with terminal 4 employees,15
nor, seen terminal 4 employees in the terminal 2 locker room. On direct examination Adams
stated, more than once, she never heard about cleaning employees from the afternoon or
evening shifts at Terminal 4 being sent to terminal 2 to perform cleaning work. Adams;
however, was asked on cross-examination, to explain why her August 11, pretrial affidavit
reflected “I have heard about Terminal Four employees from the afternoon shift or from the 20
evening shift being sent to Terminal Two to do work.” On redirect examination, Adams
testified she never worked an afternoon or evening shift and had never heard, or seen, a fellow
worker from terminal 4 sent by the Company to perform cleaning work at terminal 2.
Charging Party Adams impressed me she was making every effort at trial to testify 25
truthfully not withstanding the somewhat contradictory statement in her pretrial affidavit
concerning whether she heard about terminal 4 employees being sent to terminal 2 to perform
cleaning work on the afternoon or evening shifts. Adams, at trial, explained she never worked
the afternoon or evening shifts and never heard about, nor saw, fellow workers from terminal 4,
sent by the Company, to perform cleaning work at terminal 2. I am persuaded any anxiety or 30
uneasiness exhibited while testifying was as a result of having to testify and not an indication
she was testifying untruthfully.
Cleaning employee Migdalia Rivera testified she works at terminal 2 on the morning
shift but had previously worked at terminal 3 until it was closed. She said that after the 35
Company came in; she, and approximately 40 other cleaning employees, were assigned to
terminal 2. Rivera knew some, but not all, employees assigned to terminal 2 saying some
terminal 2 employees were new. Rivera testified she never observed anyone at terminal 2 who
did not normally work there, and, could not recall seeing any employees from terminal 4
working at terminal 2, nor, had she seen any employees from terminal 4 coming to terminal 2. 40
Rivera knew of one terminal 2 employee “Joquine” being sent to terminal 4 to work some
overtime after working his terminal 2 shift.
Rivera recalled the Company took over terminal 2 and 4 cleaning work on November 1,
2013, and the employees were told that fact in a joint meeting of terminal 2 and 4 employees 45
attended by various company managers. Rivera first heard Local 210 was representing
JD(ATL)–05–15
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employees of terminal 2, but, only met a representative from Local 210, George Hernandez, in
January.
Rivera, along with cleaning employee Ana Aragon, met with Local 210 Business Agent
Merced on July 24 in the area of the cafeteria on the first floor in terminal 2. Rivera testified the 5
first thing Merced said was that someone in the group was putting out wrong information and
then stated “the Company, ISS, is gonna fire people that do not sign in for 210.” Aragon asked
Merced why the employees were going to get 3 weeks of vacation after 10 years employment,
to which, Rivera testified, Merced responded “People like you is the one that gives out wrong
information.” Rivera testified Merced made mention of someone in the group going to the 10
“Labor Board,” and that was “unlegal [illegal].” Rivera testified neither she, nor Aragon,
responded to Merced and decided to go back to work leaving Merced by himself.
Terminal 2 cleaning employee Ana Aragon testified she commenced working at JFK in
2010 and ended her employment with the Company on September 18. Aragon testified that 15
sometime before July 8 she, and others, met with Local 210 Business Agent Merced at
lunchtime at the Company’s first floor office at terminal 2. Aragon stated, “Joquine”, “Migdalia
[Rivera]” and “Joe”, fellow employees, were present. Aragon could not recall who started the
conversation with Merced, but, testified Merced said we had a union, Local 210. According to
Aragon, Merced said, “That we have to sign papers because we had a new Union and we have 20
to sign the papers . . . because they needed to . . . take the money from the checks for the
Union.” Aragon asked Merced, “How do we know that we have a Union if we do not vote for
one?” Merced told them he was not going to repeat what was said at the first meeting but
responded how Local 210 became their representative as “the Union we had before, the 811, he
sold the company to the 210.” Aragon testified, “They were upset because we were asking 25
questions why. He said that we have to sign; otherwise, we were going to get fired, the ones
who were not going to sign.” Aragon never signed anything for Local 210.
Aragon testified she and “Migdalia [Rivera]” had a second meeting with Local 210
Business Agent Merced in the lunchroom at terminal 2. Aragon testified Merced told them 30
“We have to sign so they could collect—so they could take the money for us.” Aragon made
some response to which Merced said, “That if we did not sign they were going to fire one-by-
one, we were going to receive a letter, and that letter we had to sign and then we had to send it
back.” Aragon said “Migdalia [Rivera]” became upset and left and she followed her.
35
Charging Party Adams, on or about July 8, received a letter from Local 210 Union
Officer Miranda advising her employment with the Company was covered by a collective-
bargaining agreement between the Company and Local 210. Adams was advised she was
required to pay monthly membership dues to Local 210, as set forth in the collective-bargaining
agreement, as a condition of her employment. Adams was also advised if she refrained from 40
membership in Local 210 she would still be required to pay an equivalent amount as a monthly
fee to Local 210 for its service in representing her interests with the Company. Adams was
informed that despite Local 210’s numerous communications to her, she had failed to pay the
dues she owed Local 210 including dues for the month of July. Adams was informed if she
continued to refuse to pay her delinquent dues by July 18; Local 210 would notify the 45
JD(ATL)–05–15
8
Company and request her employment with the Company be terminated, as provided for in the
collective-bargaining agreement.
Terminal 2 cleaning employee Aragon also received Miranda’s July 8 letter.
5
II. Analysis, Discussion and Conclusions
A. The 10(b) Issue/Defense
Section 10(b) of the Act specifically provides “no complaint shall be issued based upon 10
any unfair labor practice occurring more than 6 months prior to filing of the charge with the
Board.” In Dedicated Services, 352 NLRB 753, 759 (2008), further guidance is provided:
However, it is well established that the 10(b) period does not begin to run until the
Charging Party has received “clear and unequivocal notice, either actual or 15
constructive” of the violation. Broadway Volkswagen, 342 NLRB 1244, 1246
(2004); St. Barnabas Medical Center, 343 NLRB 1125, 1126 (2004); Leach
Corp., 312 NLRB 990, 991 (1993), enfd. 54 F.3d 802 (D.C. Cir. (1995); Amcar
Division, 234 NLRB 1063 (1978), enfd. 596 F.2d 1344, 1351 (8th Cir. 1979).
The burden of showing such clear and unequivocal notice is on the party raising 20
Section 10(b) as an affirmative defense. Broadway Volkswagen, supra at 1246;
Chinese American Planning Counsel, 307 NLRB 410 (1992), review denied
mem. 990 F.2d 624 (2d Cir. 1993).
Constructive notice will include, as applicable, circumstances where the charging party 25
could, with “reasonable diligence,” have discovered the alleged misconduct. However, an
unfair labor practice charge will not be time-barred if the delay is brought about by ambiguous
conduct, or conflicting signals by the other party(ies). My Public Transportation, 356 NLRB
No. 116 slip op. at 13 (2011).
30
The Company, on December 18, 2013, recognized Local 210 as the exclusive
collective-bargaining representative of all JFK Delta Terminal 2 Unit and Terminal 4 Unit
employees. The Company points out the charge against it alleging the recognition as unlawful
was not filed by Charging Party Adams until July 21, and not served on the Company until July
24, dates more than 6 months after the recognition was granted. The Company contends that 35
because more than 6 months elapsed between the alleged unfair labor practice and service of
the unfair labor practice charge, the charge is untimely and must be dismissed. In this regard
the Company contends Charging Party Adams had knowledge, either actual or constructive, the
recognition had been granted on December 18, 2013, more than 6 months before she filed her
unfair labor practice charge.40
Local 210 contends the charge filed against it by Charging Party Adams on August 4,
and served on August 6, is untimely under Section 10(b) because the filing came some 7–1/2
months after the Company’s voluntary recognition of the Union on December 18, 2013, had
taken place. Local 210 contends the relevant 10(b) period would extend back to February 6, 45
and contends Charging Party Adams had actual notice of the Company’s recognition of Local
JD(ATL)–05–15
9
210 to represent the JFK Delta Terminal 2 Unit and Terminal 4 Unit employees in January
2014, thus; outside the 10(b) period and the charge against Local 210 must likewise be
dismissed.
The first unfair labor practice allegation in the complaint against Local 210 concerns 5
Local 210 and the Company mutually executing, maintaining and enforcing a collective
bargaining that is effective from March 1, 2014 to February 28, 2017. Local 210
acknowledges the date of the allegation is within 6 months prior to the filing of the charge but,
contends this and the other unfair labor practice allegations against Local 210 flow from the
purportedly unlawful recognition on December 18, 2013, and, are thus subsumed in the 10
analysis concerning the propriety of the voluntary recognition.
Local 210 Organizer Cynthia Rivera testified she was at JFK on January 2, 9, 13, 14
and 17. Rivera testified she was at JFK Delta terminal 2 “to speak with the workers about
Local 210.” Rivera said she always introduced herself so she could get to know the employees 15
and the employees could get to know her face. Rivera testified:
I tell them, you know, about Local 210, where it’s located—all the questions—
answer any questions that they may have; and just give them information in
general about—we’re representing for; you know, welcome to Local 210; this is 20
going to be your representative; here’s my card, my phone number; any questions,
call me.
Rivera testified cleaning employees Ana Aragon, and a couple others, Veronica White
and Felalina Chung, asked her how Local 210 had become the collective-bargaining 25
representative at JFK Delta terminal 2. According to Rivera, Charging Party Adams was
present on at least two or three occasions but was “rather quite” when she was present. Rivera
said about 10 to 12 employees were in a semicircle when she met with and spoke to the
employees. Rivera said she told the employees the Company had recognized Local 210 for
both terminals which were one unit and they were now members of Local 210. Rivera said she 30
explained the recognition facts each time she spoke “if that was the question.” Rivera spoke
English explaining these circumstances when Charging Party Adams was present. Rivera,
however, never spoke individually with Adams.
Local 210 Business Agent Merced testified he visited JFK on January 6, 7, and 31. 35
Merced met with JFK Delta Terminal 2 Unit employees “when there’s a switch in shifts” so as
to “catch the morning shift leaving and the afternoon shift coming in.” He observed Charging
Party Adams two times in groups of, “I would say two hand-fulls; maybe 10—11,” with Adams
“maybe four feet” away facing toward him as he spoke English. Merced never spoke
personally with Adams only “in group-wise.” Merced explained “who Local 210” was and the 40
reason why they were their representative. Merced explained he gave the employees “a brief
history of actually who [Local] 210 really is, which was—came from [Local] 815 and became
Local 210.” Merced said he explained the Company had merged the two units together with
common management into one unit so “the operations could run smoother” with the combined
workers.45
JD(ATL)–05–15
10
Merced testified he told the employees how Local 210 became their collective-
bargaining representative:
I explained to them that we had Terminal Four -- all of Terminal Four that
were ABM workers that came from Local 811 and signed up with us; and 5
on top of that, I explained to them again regarding the merger with
Terminals Two and Terminals Four and that the majority of combined
Units was the greater, and the Company going forward and recognizing
Local 210.
10
Charging Party Adams testified that when she first started working at JFK as a cleaning
employee she worked at terminal 3. The union representing the unit was Local 811. Local 811
continued to represent that unit of employees when she and the others were transferred to
cleaning work in the JFK Delta terminal 2. Adams was happy with Local 811’s representation
stating, “because they used to fight for us; they used to do things for us.” Adams was thereafter 15
told by a fellow worker “811 is no more represent the Union; so no more represent the Union.
That we don’t have no more Union for [Local] 811.” Adams testified the very first time she
heard of Local 210 was in March 2014:
When I heard about the Local 210 is when we was in the locker room, and my—so 20
I went in the locker room and I see their poster post up there. I had to go in the
door. It was there. I don’t want Local 210; so I read it, and I go and change my
clothes.
Adams explained that when she saw the Local 210 poster she did not know anything 25
about 210; adding, Local 210 “didn’t do nothing for us.”
Adams testified she saw Local 210 Business Agent Merced once in the lunchroom at
JFK Delta terminal 2 but could not recall if it was before or after she saw the Local 210 poster
in March. Adams testified she did not speak to or argue with Merced but she saw employee 30
“Veronica” and other employees talking with him and stated, “I[t] was not me speaking to him.
Veronica and other workers was speaking. I was going ‘round to the locker room, and I saw he
and Veronica and the rest of the workers in there.” Adams could not recall the month this took
place but knew it was in 2014. Counsel for Local 210 pointed to Union Organizer Cynthia
Rivera sitting in the courtroom at trial, and Charging Party Adams testified; “I don’t know her. 35
I never seen her. I don’t know her.” When specifically asked if she had seen Union Organizer
Rivera anywhere before the courtroom identification Adams responded, “No, sir; I never see
her before.”
Charging Party Adams, in response to questions on cross-examination, regarding, in 40
part, the charges and amended charges she filed with Board she responded as follows:
Q. Okay. Do you have any knowledge of anything that happened in January
2014, that constituted a recognition of ISS of Local 210?
A. By recognize?45
JD(ATL)–05–15
11
Q. You’re complaining, are you not, that ISS improperly recognized Local
210 as the representative of employees who were working in Terminal
Two; correct?
A. Terminal Two.
Q. That’s your assertion; isn’t it?5
A. Yes.
Q. And that happened in December of 2013; didn’t it?
A. 2013?
Q. Yes. In December, 2013, ISS entered a Recognition Agreement, that’s
stipulated, with Local 210. That’s a stipulated fact. You are aware of 10
that; correct?
A. Yes, sir I’m aware of it.
Q. You were aware of it?
A. I’m aware of it.
15
Cleaning employee Migdalia Rivera testified she learned in November 2013 that Local
811 did not want to represent her unit of employees. Rivera first testified she did not, in mid-
December 2013, know Local 210 was their new union. Rivera explained she was not assigned
to work on the days the Local 210 representatives visited JFK Terminal 2 Unit employees but
acknowledged “Veronica” and other employees told her about the visits. Migdalia Rivera 20
testified her coworkers told her that Local 210 Business Agent Merced told them in December
2013 that he was going to be representing them but she did not remember if they said Merced
told them the Company had recognized Local 210 to represent the JFK Delta Terminal 2 Unit
employees. After reviewing her pretrial affidavit given to the Board, Rivera recalled:
25
Q. Didn’t you learn from your co-workers, in December of 2013, that you
and your co-workers were being represented by Local 210?
A. Yes.
Q. Which co-workers told you that?
A. The same people I mentioned earlier.30
Q. How many people told you that?
A. About four, five, ten people. I mentioned that.
Q. Would it be fair to say that when you got back to work from your days off,
--
A. Yes?35
Q. -- that it was common knowledge among the morning shift at Terminal
Two that Local Terminal Two had been there and had told everybody that
they were now representing the group?
A. That’s what I – that’s what I thought.
Q. Was it common knowledge among all your co-workers?40
A. Among them; yes.
It is clear the complaint allegations at issue here have their origin, or flow from; when
Charging Party Adams had notice the Company had granted Local 210 recognition as
bargaining representative.45
JD(ATL)–05–15
12
In that regard, did the Company or Local 210 meet their burden of showing Charging
Party Adams had “clear and unequivocal notice, either actual or constructive” that the
Company granted Local 210 recognition for the JFK Delta Terminal 2 Unit employees prior to
January 24? The evidence fails to establish Adams had notice prior to January 24.
5
First I turn to whether Charging Party Adams had “actual” notice prior to January 24.
In addressing “actual” notice it is necessary to comment on credibility issues that are presented.
I have addressed, in part, Adams credibility elsewhere in this decision, but, it is helpful to make
an observation or so here as well. Adams may well not have been a polished witness who
testified in an effortless manner, form or style, but, nonetheless, as I watched her testify, I 10
concluded she was attempting to testify truthfully. She did not always remember events fully
or specific dates but the over-all tenor of her testimony convinced me of its reliability.
The Company’s and Local 210’s contention Charging Party Adams admitted she knew,
that in December 2013, Local 210 had been recognized by the Company as the bargaining 15
representative for the Terminal 2 Unit employees has not been clearly demonstrated. It is
unclear from counsel’s questioning of Adams whether she was being asked if she knew of the
2013 recognition, or; if she knew it was a stipulated fact the Company entered a recognition
agreement, in December 2013, with Local 210. The confusion brought to the questioning by
counsel precludes any conclusion Adams admitted knowing of the recognition in 2013.20
Charging Party Adams acknowledged seeing Local 210 Business Agent Merced once in
the lunchroom at JFK Delta Terminal 2 but could not recall if it was before or after she saw the
Local 210 poster in March. Even if her seeing Merced took place before March, Adams did not
speak to Merced but, rather, simply went around those speaking with Merced as she walked to 25
the locker room. Such does not establish she learned of the recognition at that time.
Even on these occasions that Local 210 Business Agent Merced testified about Adams
being present at some of his January meetings with Terminal 2 Unit employees, he
acknowledged she remained quit. I credit Adams testimony that the first time she was actually 30
aware the Company had granted recognition to Local 210 for the Terminal 2 Unit employees
was in March. I am persuaded there is no credible testimony by either Merced or Organizer
Rivera that would require a different conclusion.
I am likewise unable, on this record, to conclude a clear and unequivocal showing has 35
been established that Charging Party Adams had “constructive” notice, before January 24, the
Company had, on December 18, 2013, recognized Local 210 as the bargaining representative
for the JFK Delta Terminal 2 Unit employees.
The Company and Local 210 essentially rely on the testimony of cleaning employee 40
Migdalia Rivera that she learned from somewhere between 4 to 10 co-workers, in December
2013, that Terminal 2 Unit employees were being represented by Local 210. There is no
showing that the four to ten unit employees conveyed to Charging Party Adams their
understanding that in December 2013 the employees were at that time represented by Local
210. With that lack of knowledge, I am unpersuaded Adams would have been obligated by 45
“reasonable diligence” to seek or find out if anyone represented the Terminal 2 Unit
JD(ATL)–05–15
13
employees. The fact 4 to 10 employees in a unit of 40 employees considered their knowledge
to be common among all the unit employees is a leap I am unwilling to make. I find the
Company and Local 210 failed to satisfy the burden of establishing constructive notice
attributable to Charging Party Adams before January 24.
5
Assuming, arguendo, Charging Party Adams had knowledge, before January 24, of the
Company’s December 18, 2013 recognition of Local 210 as the bargaining representative for
the JFK Delta Terminal 2 Unit employees, Adams’ charge would not be time-barred. The
Company and Local 210 gave conflicting signals and engaged in ambiguous conduct that
prevented any clear and unequivocal prior notice of recognition. Specifically after the 10
Company granted Local 210 recognition on December 18, 2013 it, as well as Local 210,
engaged in the following conduct or was aware of actions by Local 811: (1) On December 23,
2013, Local 811 filed a representation election petition in Case 29–RC–119522 seeking an
election among all “full-time and regular part-time cleaners, window cleaners, project workers
and lead persons employed by [ISS]” at JFK Terminal 2; (2) Local 210 joined the proceedings 15
in Case 29–CA–119522 as an intervenor; 3) On January 10, the Regional Director for Region
29 of the Board approved a Stipulated Election Agreement in Case 29–RC–119522 signed by
the Company, Local 210 and Local 811 on January 9; (4) The parties in the approved
Stipulated Election Agreement agreed that a bargaining unit comprised of all full-time and
regular part-time building cleaners employed by the Company at JFK Delta terminals 2 and 4 20
was an appropriate unit within the meaning of the Act; (5) The Company, in keeping with the
terms of the Stipulated Election Agreement in Case 29–RC–119522, posted copies of an notice
of election inside wall-mounted glass containers near the employee time clocks at the Company
JFK Delta terminals 2 and 4, and, above the timeclock at JFK Delta terminal 2 and the notices
remained posted from January 23– 27; and, (6) On January 28, the Regional Director for 25
Region 29 issued an Order granting Local 811’s request to withdraw its petition in Case 29–
RC–119522 and cancelling the scheduled election.
These actions by the Company and Local 210 prevented any clear and unequivocal
notice of recognition they may have previously entered into. The above actions, by the 30
Company and Local 210, specifically conflicted with whatever statements about recognition
Local 210 Union Organizer Rivera and Business Agent Merced made to employees concerning
the Company’s grant of recognition to Local 210 even if the statements had been made to
Charging Party Adams. Whether Adams was fully aware of the Parties conflicting and/or
ambiguous actions is not controlling.35
Based on all the above, dismissal of the case here pursuant to Section 10(b) is denied.
B. The Issue of an Accretion.
40
The Board recently, succinctly, restated in NV Energy, Inc., 362 NLRB No. 5 (2015), its
long standing precedent for addressing an issue of accretion. The Board in NV Energy stated:
When the Board finds an accretion, it adds employees to an existing bargaining
unit without conducting a representation election. The purpose of the accretion 45
doctrine is to “preserve industrial stability by allowing adjustments in bargaining
JD(ATL)–05–15
14
units to conform to new industrial conditions without requiring an adversary
election every time new jobs are created or other alterations in industrial routine
are made.” NLRB v. Stevens Ford, Inc., 773 F.2d 468, 473 (2d Cir. 1985), quoted
in Frontier Telephone of Rochester, supra at 1271. However, because accreted
employees are added to the existing unit without an election or other 5
demonstration of majority support, the accretion doctrine’s goal of promoting
industrial stability is in tension with employees’ Section 7 right to freely choose a
bargaining representative. Frontier Telephone of Rochester, supra at 1271. The
Board accordingly follows a restrictive policy in applying the accretion doctrine.
See CHS, Inc., 355 NLRB 914, 916 (2010) (quoting Archer Daniels Midland Co., 10
333 NLRB 673, 675 (2001)); Super Value Stores, 283 NLRB 134, 136 (1987).
Under the well-established accretion standard set forth in Safeway Stores, Inc.,
256 NLRB 918, 918 (1981), the Board finds “a valid accretion only when the
additional employees have little or no separate group identity and thus cannot be
considered to be a separate appropriate unit and when the additional employees 15
share an overwhelming community of interest with the preexisting unit to which
they are accreted.” Id. (footnotes omitted). See also Frontier Telephone of
Rochester, supra at 1271; E. I. Du Pont, supra at 608 (quoting Ready Mix USA,
Inc., 340 NLRB 946, 954 (2003)). In determining whether this standard has been
met, the Board considers factors including integration of operations, centralization 20
of management and administration control, geographic proximity, similarity of
working conditions, skills and functions, common control of labor relations,
collective-bargaining history, degree of separate daily supervision, and degree of
employee interchange. Archer Daniels Midland, supra at 675 (citing Progressive
Service Die Co., 323 NLRB 183 (1997)). However, the Board has held that the 25
“two most important factors—indeed, the two factors that have been identified as
critical to an accretion finding—are employee interchange and common day-to-
day supervision,” and therefore “the absence of these two factors will ordinarily
defeat a claim of lawful accretion.” Frontier Telephone of Rochester, supra at
1271 and fn. 7 (internal quotations omitted). [footnotes omitted].30
In addressing whether accretion is appropriate I note the Board readily recognizes that
in the usual case a variety of elements are presented, some militating toward and some against
accretion making a balancing of the various factors necessary. See Great Atlantic & Pacific
Tea Co., 140 NLRB 1011, 1021 (1963). Balancing the various factors; however, may not serve, 35
or provide, an opportunity to bypass the two critical factors of employee interchange and
common day-to-day supervision of employees while addressing accretion issues.
Did the Company, on December 18, 2013, grant recognition to Local 210, as the
exclusive collective-bargaining representative of its employees engaged in the function(s) of 40
cleaning maintenance, project and janitorial services at JFK Airport for its terminal 2
employees even though the Union did not represent a majority of the Terminal 2 Unit
employees? The simple answer is yes, the Company did. At the time of granting the
recognition Local 210 had not demonstrated to the Company it had obtained signed
authorization cards from a majority of employees in the Terminal 2 Unit, nor, otherwise 45
demonstrated it enjoyed the support of a majority of employees in the Terminal 2 Unit, which
JD(ATL)–05–15
15
40 Unit employees, had previously been represented by Local 811 (United Service Workers
Union IVJAT). Local 210 only obtained four signed authorization cards from the 40 Terminal
2 Unit employees.
The Company’s granting of recognition to Local 210 on December 18, 2013, was for a 5
combined unit composed of Terminal 2 and Terminal 4 employees. Local 210 had, since at
least 2001, represented employees in the Terminal 4 Unit. Local 210 did demonstrate support
among employees in the Combined Unit. Local 210 presented the Company signed
authorization cards from 40 of the 49 Terminal 4 Unit employees along with 4 signed
authorization cards from Terminal 2 Unit employees. Thus Local 210 claimed support of the 10
49 Terminal 4 employees plus 4 Terminal 2 Unit employees, who signed union authorization
cards, for a total of 53 of the 89 Combined Unit employees. I note the actual support among
the Terminal 4 Unit employees was 40, and from the Terminal 2 Unit employees only 4,
totaling 44 authorization cards from the Combined Unit of 89; less than a majority.
15
It is essential to note that what the Company and Local 210 are attempting here is an
accretion of the Terminal 2 Unit employees into the Terminal 4 Unit employees. Stated
differently, the only way the Company, and Local 210, can justify the granting of recognition
by the Company to Local 210 to represent the Terminal 2 Unit employees is by an accretion of
the Terminal 2 Unit employees into the Terminal 4 Unit. The Company and Local 210 refer to, 20
and contend; the situation here resulted from the Company’s integrating its terminal 2 and
terminal 4 operations or merged its terminal 2 and 4 operations. Regardless of how it is
characterized (integrating and/or a merging of its operations) the only way the granting of
recognition can withstand scrutiny is if the parties actions constituted a valid accretion of the
Terminal 2 and Terminal 4 Unit employees into one Combined Unit.25
As noted elsewhere here, when the Board finds an accretion, it adds employees to an
existing bargaining unit without conducting a representation election. The purpose of the
accretion doctrine is to preserve industrial stability by allowing adjustments in bargaining units
to conform to new industrial conditions without requiring an adversary election every time new 30
jobs are created or other alterations are made. In an accretion employees are added to an
existing unit without an election without a demonstration of majority status thus promoting
industrial peace, but, such action runs head-on into employees’ Section 7 right to freely choose
their own bargaining representative. Understandably, the Board follows a restrictively narrow
policy when it applies its accretion doctrine. Again, as noted elsewhere here, the Board will 35
only find a valid accretion when the additional employees have little or no separate group
identity and not an appropriate unit; and, when the additional employees share an
overwhelming community of interest with the preexisting unit to which they will be accreted.
In determining whether an accretion is appropriate the Board requires that I consider, 40
among other factors, at least some of the following: (1) integration of operations; (2)
centralization of management and administrative control; (3) geographic proximity; (4)
similarity of working conditions, skills and functions; (5) common control of labor relations;(
6) collective-bargaining history; (7) degree of separate daily supervision; and, (8) degree of
employee interchange. The Board directs in my consideration, that two factors are critical to 45
JD(ATL)–05–15
16
finding an accretion, namely, employee interchange and common day-to-day supervision. The
absence of these two critical factors will ordinarily defeat a claim of a lawful or valid accretion.
I address the two critical factors first. The parties stipulated company employees
engaged in cleaning, maintenance, project and janitorial services at JFK Delta terminals 2 and 5
4 are regularly assigned to work either in Terminal 2 or Terminal 4. Record testimony, at best,
only demonstrates extremely minimal, if any, interchange of employees between terminals 2
and 4. Charging Part Adams’, a terminal 2 cleaning employee, credibly testified she has never
been assigned to work at terminal 4. No contrary evidence was offered. Adams knew the 17
other terminal 2 cleaning employees that worked her (morning) shift and she never observed 10
cleaning employees, working her shift, that she did not recognize as regularly assigned
terminal 2 employees. Adams never even observed any terminal 4 employees in the terminal 2
locker room. Adams, while on cross-examination, appeared somewhat confused about
whether she had ever heard of terminal 4 employees being sent to work at terminal 2, but,
explained she never worked the afternoon or evening shifts and added she never heard, or had 15
seen, fellow workers from terminal 4 being sent by the Company to perform cleaning work at
terminal 2. terminal 2 cleaning employee Migdalia Rivera, who knew some but not all of the
40 terminal 2 cleaning employees, had never observed anyone at terminal 2 who normally did
not work there and could not recall seeing any terminal 4 employees working at terminal 2, nor
had she seen any terminal 4 employees coming to terminal 2. Rivera knew of one Terminal 2 20
employee “Joquine” being sent to terminal 4 to work some overtime after working his regular
terminal 2 shift.
It is clear there was essentially sporadic, if any, interchange between Terminal 2 and
Terminal 4 Unit employees. More specifically, and as noted earlier, the parties stipulated 25
“[Company] cleaning and facility maintenance employees at JFK [Airport] are regularly
assigned to work either terminal 2 or terminal 4.”
Turning now to the degree of separate direct supervision, or, stated another way, the
degree, if any, of common day-to-day supervision. No evidence was presented showing any 30
common day-to-day supervision of the Terminal 2 and Terminal 4 Unit employees. The
parties stipulated direct level supervisors are regularly assigned to supervise employees in
either terminal 2 or terminal 4 and “supervisors assigned to supervise employees in Terminal 2
do not regularly supervise employees working in Terminal 4, and supervisors assigned to
supervise employees in Terminal 4 do not regularly supervise employees working in Terminal 35
2.” I note that above the level of direct supervisors, terminal 2 and terminal 4 employees are
jointly supervised by the Company’s JFK Airport facility manager.
The absence of these two critical factors, employee interchanges and common day-to-
day supervision, weighs heavily against, if it does not outright defeat, any claim of a lawful 40
accretion. If a valid accretion is found it would mean that nearly one-half of the Combined
Unit employees would not have been afforded an opportunity to express their views on, or
decide, whom, if anyone, would be their chosen collective-bargaining representative.
I am not unmindful there are some factors that favor an accretion of the Terminal 2 45
Unit employees into the Terminal 4 Unit. For example, the working conditions, skills and
JD(ATL)–05–15
17
functions are similar. Terminal gate areas are the same whether the gates are located in one
terminal or another. The geographic location of terminal 2 and terminal 4 is within an
estimated 1-hour walking time and connected by shuttle and airport trains. This factor would
favor accretion. It appears the Company has centralized management above the direct daily
supervisory level and has centralized its administrative and labor relations control. Both favor 5
accretion.
I find the factors that tend to favor an accretion are clearly outweighed by the two
critical factors, namely, a lack of common day-to-day supervision and a lack of employee
interchange.10
Based on all above considerations, I conclude this case does not meet the Board’s very
restrictive standard for finding an accretion. The Company and/or Local 210 have not
demonstrated that the Terminal 2 Unit employees share an overwhelming community of
interest with the Terminal 4 Unit employees, nor, has the Company and/or Local 210 shown 15
that the Terminal 2 Unit employees have little or no separate group identity, particularly, given
that the Terminal 2 Unit employees were represented by a different union than represented the
Terminal 4 Unit employees.
By granting recognition to Local 210 as the exclusive collective-bargaining 20
representative of its Terminal 2 Unit employees, even though Local 210 did not represent a
majority of the Terminal 2 Unit employees, the Company rendered unlawful assistance and
support to a labor organization in violation of Section 8(a)(1) and (2) of the Act, and, I so find.
C. The Parties April 3 Collective Bargaining Agreement25
The Company admits, and the parties stipulated, that on April 3, Local 210 and the
Company mutually executed, and, have since that time maintained and enforced a collective-
bargaining agreement, effective by its terms from March 1, 2014 to February 28, 2017,
applicable to Terminal 2 Unit employees. The Parties further admit the collective-bargaining 30
agreement, at subparagraph 10(b), contains a union-security clause. The execution and
enforcement of the collective bargaining, including the union-security clause, occurred at a
time when, as I have concluded above, Local 210 did not represent a majority of the JFK Delta
Terminal 2 Unit employees.
35
The Board in MV Public Transportation, 356 NLRB No. 116 held that where, as is the
case here, a union entered into, maintained, and enforced a collective-bargaining agreement
containing a union-security clause at a time when such a union did not represent an uncoerced
majority of the unit employees, the union is accepting unlawful assistance from the employer
and the union violates Section 8(b)(1)(A) of the Act. The Board also held that where a union 40
enters into and maintains and enforces a collective-bargaining agreement with a union-security
clause at a time when it does not represent an uncoerced majority of employees, the union also
violates Section 8(b)(2) of the Act.
It is alleged, and I also find, that by the applicable law and facts here, the Company 45
encouraged Terminal 2 Unit employees to join and assist Local 210, and as such, it has been
JD(ATL)–05–15
18
discriminating in regard to the hire or tenure or terms or conditions of its Terminal 2 Unit
employees, thereby encouraging membership in a labor organization in violation of Section
8(a)(1) and (3) of the Act.
Local 210, by executing on April 3 and thereafter, maintaining and enforcing its5
collective-bargaining agreement with the Company, containing a union-security clause
applicable to Terminal 2 Unit employees, at a time when it did not represent a majority of the
Terminal 2 Unit employees, Local 210 has been restraining and coercing Terminal 2 Unit
employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of
Section 8(b)(1)(A) and 8(b)(2) of the Act, and, I so find.10
D. Threats of Loss of Employment
It is alleged that by a letter dated July 8, Local 210 Officer Miranda, at a time when
Local 210 was not the lawfully recognized exclusive collective bargaining representative, 15
threatened Terminal 2 Unit employees with loss of employment unless they executed dues
check-off authorizations or otherwise joined or assisted Local 210.
The evidence clearly establishes Charging Party Adams, as well as Terminal 2 Unit
employee Aragon received Local 210 Officer Miranda’s July 8 letter. In the letter Adams was 20
informed that her employment was covered by a collective-bargaining agreement containing a
union security clause that required all employees covered by the agreement to become and
remain union members in good standing with Local 210 or pay initiation fees and periodic dues
and assessments as required by Local 210. Adams was further informed, in Miranda’s letter,
that any employee who failed to acquire, or maintain, membership in Local 210 as provided for 25
in the collective-bargaining agreement, or to pay initiation fees or periodic dues, shall be
terminated 72 hours after the Company has received written notice from Local 210 certifying
that membership has been, and continues to be, offered to such employee on the same basis as
all other members and the employee has had notice and opportunity to make all dues or
initiation fee payments. Adams was informed in the letter she had been given numerous 30
communications of her failure to pay dues owed to Local 210, or, make arrangements to have
the dues deducted from her pay and remitted directly from the Company to Local 210. Local
210 Officer Miranda advised Charging Party Adams if she had not paid her dues delinquency
by July 18, Local 210 would notify the Company of her failure to abide by the collective-
bargaining agreement and, Local 210 would request her employment with the Company be 35
terminated.
Adams was never a member of Local 210. Adams was not covered by the parties’
collective-bargaining agreement because Local 210 was never the lawfully recognized
exclusive collective-bargaining representative of the Terminal 2 Unit employees. Thus, Local 40
210 could not lawfully require Adams to pay dues or threaten to have Adams’ employment
with the Company terminated because the parties’ collective-bargaining agreement was invalid
and could not be applied to JFK Delta Terminal 2 Unit employees such as Charging Party
Adams.
45
JD(ATL)–05–15
19
Local 210’s July 8 letter to Adams contained a clear threat of a loss of employment for
Adams with the Company and violates Section 8(b)(1)(A) of the Act, and, I so find.
It is alleged that on or about July 24, Local 210 Union Officer Miranda or Business
Agent Merced at JFK Delta Terminal 2 threatened employees with loss of employment unless 5
they executed dues check-off authorizations or otherwise joined or assisted Local 210 and
threatened employees with unspecified reprisals because employees filed charges with the
Board.
Cleaning Employee Migdalia Rivera credibly testified that at a July 24 meeting with 10
Local 210 Business Agent Merced on the first floor of Terminal 2 attended by employee Ana
Aragon and others, Merced told employees “the Company, ISS, is gonna fire people that do not
sign in for [Local] 210.” Rivera testified Merced also mentioned that someone in the group
was going to the “Labor Board” and that was “unlegal[illegal].” Employee Aragon identified
other cleaning employees present at Merced’s July 24 meeting as “Joquine”, “Joe” and 15
“Migdalia” [Rivera]. According to Aragon, Local 210 Business Agent Merced told the
employees they had a union, Local 210, and the employees needed to sign papers so they could
take money from their pay checks for Local 210. Aragon asked Merced how the employees
would know if they had a union if they did not vote for one. Aragon said “they” were upset
because we were asking questions why and Local 210 Business Agent Merced told them, “we 20
have to sign; otherwise, we were going to get fired, the ones who were not going to sign.”
Cleaning Employee Aragon testified she and Migdalia Rivera, thereafter, had a second meeting
in the lunchroom at Terminal 2 with Local 210 Business Agent Merced. Merced told she and
Rivera, “We have to sign . . . so they could take the money for us” and added that if we did not
sign they were going to fire us one-by-one.25
It is clear Local 210 Business Agent Merced, on/or about July 24, threatened terminal 2
cleaning employees with a loss of employment with the Company if they did not sign the
necessary papers for Union dues to be deducted from their wages by the Company and remitted
to Local 210. The collective-bargaining agreement containing the dues requirements was 30
invalid and not applicable to the Terminal 2 cleaning employees. Simply stated, Local 210 had
no valid basis to demand, at the expense of the cleaning employees’ employment, they
authorize dues from their wages for Local 210. These threats of loss of employment by Local
210’s representative violates Section 8(b)(1)(A) of the Act, and I so find.
35
The Board in Teamsters, Local 391, 357 NLRB No. 187, slip op. at 1–2 (2012) held:
Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a labor
organization or its agents to restrain or coerce employees in the exercise of rights
protected by the Act. Those rights include the right to access the Board’s 40
processes. As the Supreme Court has recognized, because the Board cannot act to
prevent and remedy unfair labor practices without a filed charge, the Act
embodies a policy of “keeping people completely free from coercion against
making complaints to the Board”2 “Any coercion used to discourage, retard, or
defeat that access,” the Court added, “is beyond the legitimate interests of a labor 45
JD(ATL)–05–15
20
organization” 3 Accordingly, the Board has found union threats against
employees for filing Board charges unlawful under Section 8(b)(1)(A). 4
_______________________________
2 NLRB v Marine & Shipbuilding Workers Local 22, 391 U.S. 418, 424 (1968) (internal quotations
omitted).5
3 Id.
4 E.G., Oil Workers Local 2-947 (Cotter Corp). 270 NLRB 131 (1984).
The Board in Teamsters Local 391 noted the applicable test, an objective one, is
whether a remark can be reasonably interpreted by an employee as a threat. And, that the 10
central function of the Act, in this type setting, of keeping individuals completely free from
coercion when making complaints to the Board, Section 8(b)(1)(A) of the Act will be found to
extend beyond explicit calls for reprisals against charge filers to statements a reasonable
employee would understand to imply as much.
15
Telling employees, in the context here, that going to the Board with their concerns was
illegal, indicates to the employees they have done something wrong, and leaves them with the
clear impression Local 210 will take action against them for going to the Board and this
impeding access to the Board’s process violates the Section 8(b)(1)(A) Act, and, I so find.
20
CONCLUSIONS OF LAW
1. The Company, ISS Facility Services, Inc., is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
25
2. The Union, Local 210, International Brotherhood of Teamsters, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By, on/or about December 18, 2013, granting recognition to Local 210 as the
exclusive collective-bargaining representative of employees engaged in cleaning, maintenance, 30
project and janitorial services at JFK Delta terminal 2, even though Local 210 did not represent
a majority of the Terminal 2 Unit employees, the Company violated Section 8(a)(1) and (2) of
the Act.
4. By, on/or about April 3, 2014, executing, maintaining, and enforcing a 35
collective-bargaining agreement with Local 210 for the JFK Delta Terminal 2 Unit employees
effective from March 1, 2014 to February 28, 2017 containing a union-security clause, even
though Local 210 did not represent a majority of the JFK Delta Terminal 2 Unit employees, the
Company has encouraged Terminal 2 Unit employees to join and assist Local 210 and in so
doing, the Company has been discriminating in regard to the hire, or tenure ,or terms, or 40
conditions of employment of its JFK Delta Terminal 2 Unit employees, thereby, encouraging
membership in a labor organization in violation of Section 8(a)(1) and (3) of the Act.
5. By, on/or about April 3, 2014, executing, maintaining, and enforcing a
collective-bargaining agreement with the Company for the JFK Delta Terminal 2 Unit 45
employees effective from March 1, 2014 to February 28, 2017, containing a union-security
clause even though Local 210 did not represent a majority of the JFK Delta Terminal 2 Unit
JD(ATL)–05–15
21
employees, Local 210 has encouraged Terminal 2 Unit employees to join or assist Local 210;
thereby, restraining and coercing employees in the exercise of their rights guaranteed in
Section 7 of the Act and in violation of Section 8(b)(1)(A) of the Act.
6. By, on/or about July 24, threatening JFK Delta Terminal 2 Unit employees with 5
loss of employment unless the executed dues checkoff authorizations, or otherwise joined, or
assisted Local 210 and, by threatening Terminal 2 Unit employees with unspecified reprisals
because employees filed charges with the Board; Local 210 restrained and coerced employees
in the exercise of their right guaranteed in Section 7 of the Act in violation of Section
8(b)(1)(A) of the Act.10
REMEDY
Having found the Company and Union have both engaged in certain unfair labor
practices, I find both must be ordered to cease and desist, and to take certain affirmative action 15
designed to effectuate the policies of the Act.
Having found the Company unlawfully recognized, and then executed a collective-
bargaining agreement, effective form March 1, 2014 until February 28, 2017, with Local 210
for its JFK Delta Terminal 2 Unit employees; I recommend the Company be ordered to, 20
immediately, withdraw and withhold all recognition from Local 210 as the collective-
bargaining representative of the JFK Delta Terminal 2 Unit employees. I also recommend the
Company be ordered not to apply to the Terminal 2 Unit employees the terms of the March 1,
2014 to February 28, 2017 collective-bargaining agreement executed by the Company and
Local 210 for the Terminal 2 Unit employees, including the union-security provisions25
contained in the agreement. I recommend the Company, together with Local 210, jointly and
severally reimburse all present and former JFK Delta Terminal 2 Unit employees for all
initiation fees and dues paid by them or withheld from them pursuant to the dues checkoff and
union security provisions in the March 1, 2014 to February 28, 2017 collective-bargaining
agreement, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), 30
compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Additionally, I recommend the Company, be ordered, within 14 days after service by
the Region, to post an appropriate “Notice to Employees” in order that employees may be
apprised of their rights under the Act and the Company’s obligation to remedy its unfair labor 35
practices.
Having found Local 210 has engaged in certain unfair labor practices, I find it must be
ordered to cease and desist and to take certain affirmative action designed to effectuate the
policies of the Act.40
Having found Local 210 unlawfully executed, maintained, and enforced a collective-
bargaining agreement with the Company effective from March 1, 2014 until February 28, 2017,
which contained a union-security clause, I recommend Local 210 be ordered not to apply the
terms of the March 1, 2014 to February 28, 2017, collective-bargaining agreement to the 45
Terminal 2 Unit employees, including the union-security provisions contained in the
JD(ATL)–05–15
22
agreement. I recommend Local 210, together with the Company, jointly and severally,
reimburse all present and former JFK Delta Terminal 2 Unit employees for all initiation fees
and dues paid by them or withheld from them pursuant to the dues checkoff and union security
provisions in the March 1, 2014 to February 28, 2017, collective-bargaining agreement with
interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as 5
prescribed in Kentucky River Medical Center, 356 NLRB No. 8 (2010).
Additionally, I recommend Local 210 be ordered, within 14 days after service by the
Region, to post an appropriate “Notice to Members” in order that members and employees may
be appraised of their rights under the Act, and Local 210’s obligation to remedy its unfair labor 10
practices.
ORDER
The Company, ISS Facility Services, Inc., Jamaica, New York, its officers, agents, 15
successors, and assigns shall
1. Cease and desist from
(a) Recognizing Local 210 as the exclusive collective-bargaining 20
representative of the JFK Delta Terminal 2 Unit employees because Local 210 does not
represent a majority of those employees.
(b) Applying the terms of our March 1, 2014 to February 28, 2017
collective-bargaining agreement with Local 210, including; the deduction of initiation fees and 25
union dues; the provisions on union security; and, the dues deductions clauses contained
therein, to the JFK Delta Terminal 2 Unit employees because Local 210 does not represent a
majority of those employees.
(c) Encouraging the JFK Delta Terminal 2 Unit employees to join or assist 30
Local 210.
2. Take the following affirmative action necessary to effectuate the purposes and
policies of the Act.
35
(a) Withdraw recognition of Local 210 as the exclusive representative of the
JFK Delta Terminal 2 Unit employees.
(b) Disavow and refrain from applying to the JFK Delta Terminal 2 Unit
employees the terms of our March 1, 2014 to February 28, 2017 collective-bargaining 40
agreement with Local 210.
(c) Jointly and severally with Local 210 reimburse with interest, all present
and former JFK Delta Terminal 2 Unit employees for all initiation fees, and dues paid by them
or withheld from their pay pursuant to the dues checkoff provisions of our March 1, 2014 45
collective-bargaining agreement with Local 210.
JD(ATL)–05–15
23
(d) Within 14 days after service by the Region, post at our JFK Delta
terminal 2 location, copies of the notices marked “Appendix A,”2 on forms provided by the
Regional Director for Region 29, after being singed by the Company’s authorized
representative, shall be posted by the Company immediately upon receipt and maintained for 5
60 consecutive days in conspicuous places, including places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company to ensure that the notices
are not altered, defaced, or covered by any other material. In addition to the physical posting of
paper notices, notices shall be distributed electronically, such as email, posting on the intranet
or an internet site, or other electronic means, if the Company customarily communicates with 10
its employees by such means. In the event that, during the pendency of these proceedings, the
Company has gone out of business or closed the facilities involved here, the Company shall
duplicate and mail, at its own expense, a copy of the notice to all current employees an former
employees employed by the Company at any time since March 1.
15
(e) Notify the Regional Director of Region 29 in writing within 20 days
from the date of this Order what steps the Company has taken to comply.
The Union, Local 210, International Brotherhood of Teamsters, its officers, agents, and
representatives, shall20
1. Cease and desist from
(a) Threatening employees with loss of employment unless they executed
dues, authorizations, or otherwise joined, or assisted Local 210.25
(b) Threatening JFK Delta Terminal 2 Unit employees with unspecified
reprisals because they filed charges with the National Labor Relations Board.
(c) Acting as the exclusive collective-bargaining representative of the 30
employees in the JFK Delta Terminal 2 Unit unless, and until, Local 210 has demonstrated our
majority status among the Terminal 2 Unit employees, and have been certified by the National
Labor Relations Board.
(d) Applying the terms of our March 1, 2014 to February 28, 2017 contract, 35
specifically including the union security and dues checkoff provisions, with the Company for
employees in the JFK Delta Terminal 2 Unit.
2. Take the following affirmative action necessary to effectuate the purposes and
policies of the Act.40

2
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.”
JD(ATL)–05–15
24
(a) Inform all JFK Delta Terminal 2 Unit employees that Local 210 is not
their exclusive bargaining representative and can not be unless, and until, Local 210 establishes
or demonstrates its majority status among the JFK Delta Terminal 2 Unit employees.
(b) Jointly and severally with the Company reimburse with interest, all 5
present and former JFK Delta Terminal 2 Unit employees for all initiation fees and dues paid
by them, or withheld from their pay pursuant to the dues checkoff provisions of the March 1,
2014 to February 28, 2017 collective-bargaining agreement with the Company.
(c) Within 14 days after service by the Region, post at its business office and 10
other places where notices to members are customarily posted, copies of the notice marked
“Appendix B”3 copies of the notice, on forms provided by the Regional Director for Region 29
after being signed by the Local 210’s authorized representative, shall be posted by Local 210
immediately upon receipt and maintained for 60 consecutive days in conspicuous places
including all places where notices to members are customarily posted. Reasonable steps shall 15
be taken by Local 210 to ensure that the notices are not altered, defaced, or covered by any
other material. In addition to the physical posting of paper notices, notices shall be distributed
electronically, such as email, posting on the intranet or an internet site, or other electronic
means, if Local 210 customarily communicates with its members by such means.
20
(d) Notify the Regional Director of Region 29 in writing within 20 days
from the date of this Order what steps Local 210 has taken to comply.
Dated, Washington, D.C. March 23, 2015
25
____________________________
William N. Cates30
Administrative Law Judge

3
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.”
JD(ATL)–05–15
APPENDIX A
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the Federal labor law and has
ordered us to post and obey by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT recognize or contract with Local 210, International Brotherhood of
Teamsters as the bargaining representative of our cleaning employees at JFK Terminal 2 Unit
unless, and until, Local 210 has been certified as the representative of Terminal 2 Unit
employees by the National Labor Relations Board.
WE WILL NOT apply the terms of our March 1, 2014 contract with Local 210 to our
Terminal 2 Unit Employees.
WE WILL NOT direct or urge Terminal 2 Unit employees, as a condition of employment, to
sign cards authorizing Local 210 to represent them or have dues for Local 210 deducted from
their salaries.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL withdraw and withhold all recognition from Local 210 as the collective-bargaining
representative of our Terminal 2 Unit employees.
WE WILL, jointly and severally with Local 210, reimburse, with interest, all of our present
and former Terminal 2 Unit employees for all initiation fees and dues paid by them or withheld
from them pursuant to the dues check-off and union-security clauses in the March 1, 2014
contract with Local 210.
JD(ATL)–05–15
ISS FACILITY SERVICE, INC.
(Employer)
Dated: _________________ By: _____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two Metro Tech Center Ste. 5100; 5 FL, Brooklyn, NY 11201-3838
(718) 330-7713, Hours: 8:15 a.m. to 4:45 p.m. (E.T.)
The Administrative Law Judge’s decision can be found at www.nlrb./case/29-CA-133335 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.
JD(ATL)–05–15
APPENDIX B
NOTICE TO MEMBERS
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated the Federal labor law and has
ordered us to post and obey by this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO:
Form, join, or assist a union;
Choose a representative to bargain with us on your behalf;
Act together with other employees for your benefit and protection;
Choose not to engage in any of these protected activities.
WE WILL NOT do anything to prevent you from exercising the above rights.
WE WILL NOT act as the exclusive bargaining representative of the cleaning employees at
JFK Delta Terminal 2 Unit unless, and until, we have demonstrated our majority status among
Terminal 2 Unit employees and have been certified by the National Labor Relations Board.
WE WILL NOT apply the terms of our March 1, 2014 contract with ISS Facility Services,
Inc. to the JFK Delta Terminal 2 Unit employees.
WE WILL NOT threaten to have you fired if you do not sign cards authorizing us to represent
you, or, if you decline to have dues and/or fees deducted from your paycheck and remitted to
us.
WE WILL NOT threaten you with unspecified reprisals because you file charges with the
National Labor Relations Board.
WE WILL NOT in any like or related manner interfere with your rights under Section 7 of the
Act.
WE WILL, jointly and severally with ISS Facility Services, Inc., reimburse, with interest, all
present and former Terminal 2 Unit employees for all initiation fees and dues paid by them or
withheld from them pursuant to the dues check-off and union security clauses in our March 1,
2014 contract with ISS Facility Services, Inc.
JD(ATL)–05–15
LOCAL 210, INERNATIONAL
BROTHERHOOD OF TEAMSTERS
(Union)
Dated: _________________ By: _____________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National
Labor Relations Act. It conducts secret-ballot elections to determine whether employees want union representation
and it investigates and remedies unfair labor practices by employers and unions. To find out more about your rights
under the Act and how to file a charge or election petition, you may speak confidentially to any agent with the
Board’s Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Two Metro Tech Center Ste. 5100; 5 FL, Brooklyn, NY 11201-3838
(718) 330-7713, Hours: 8:15 a.m. to 4:45 p.m. (E.T.)
The Administrative Law Judge’s decision can be found at www.nlrb./case/29-CA-133335 or by using the QR
code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT
BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (718) 330-2862.