TCB Systems, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 2010

355 N.L.R.B. 883 (N.L.R.B. 2010)

TCB SYSTEMS, INC.
355 NLRB No. 162
883
TCB Systems, Inc. and Service Employees Interna-
tional Union, Local 32BJ, successor to Service
Employees International Union, Local 11.1 Case
12–CA–25299
August 27, 2010
DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER
AND PEARCE
On October 16, 2009, Administrative Law Judge
George Carson II issued the attached decision. The Gen-
eral Counsel filed exceptions, a supporting brief, an an-
swering brief, and a reply brief.2 The Respondent filed
cross-exceptions, a supporting brief, an answering brief,
and 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 the record
in light of the exceptions, cross-exceptions, and briefs,
and has decided to affirm the judge’s rulings, findings,3
and conclusions only to the extent consistent with this
Decision and Order.
The judge, among other things, dismissed allegations
that the Respondent (a) violated Section 8(a)(1) of the
Act when Supervisor Jamie Munoz threatened not to hire
employees because of their union activities and support,
and (b) violated Section 8(a)(3) and (1) of the Act when
it refused to hire employees Amparo Correa, Armando
Pons, and Rosario Lopez because of their union activi-
ties. As set forth below, we reverse the judge’s dismissal
of these allegations.4
Background and Material Facts
The Respondent provides building cleaning and main-
tenance services in and around Miami, Florida. In Feb-
ruary 2007,5 the Respondent obtained a contract to pro-
vide janitorial services at Nova Southeastern University
(Nova). Previously, the janitorial services at Nova were

1 On September 26, 2008, Local 32BJ became the successor to Local
11.
2 The General Counsel also filed a citation of supplemental authority
to ADF, Inc., 355 NLRB No. 14 (2010), and the Respondent filed a
response. We have accepted the General Counsel’s submission pursu-
ant to Reliant Energy, 339 NLRB 66 (2003).
3 We adopt the judge’s findings, for the reasons set forth in his deci-
sion, that the Respondent failed and refused to recognize and bargain
with the Union in violation of Sec. 8(a)(5) and (1) of the Act.
4 There are no exceptions to the judge’s dismissal of allegations that
(a) on occasions other than those discussed herein, the Respondent
violated Sec. 8(a)(1) of the Act by threatening not to hire employees
because of their union activities and support, and (b) the Respondent
violated Sec. 8(a)(3) and (1) of the Act by refusing to hire Fritz Hector,
Frantz Merisier, and Eximene Jules.
5 Unless otherwise noted, all dates hereafter are in 2007.
performed by UNICCO Service Company (UNICCO).
UNICCO had recognized the Union as its employees’
bargaining representative in October 2006, following a
year-long organizing drive of UNICCO’s employees at
Nova (which involved rallies, demonstrations, and two
short strikes). At the time the Respondent obtained the
Nova contract, the Union and UNICCO were negotiating
for a collective-bargaining agreement, but had not
reached agreement.
On February 7, Union President Rob Schuler sent a
letter to the Respondent’s district manager, Eduardo
Maestri, stating that the Union was making an “uncondi-
tional application” for employment on behalf of the
UNICCO employees. Attached to the letter were peti-
tions signed by UNICCO employees stating they desired
to continue working at Nova.
In early February, the Respondent’s vice president of
operations, Victor Sierra, obtained permission to walk
through the Nova buildings that the Respondent would
be cleaning. Sierra testified that as he walked through
the various buildings, he took notes of the “areas that
needed improvement.”
On February 10, the Respondent held a job fair on the
Nova campus. Many UNICCO employees, including the
alleged discriminatees, attended the job fair, completed
job applications, and interviewed with the Respondent.
After the job fair, Sierra met with UNICCO Custodial
Manager Efrain Montoya to review the information sub-
mitted by the applicants.
Sierra testified that he used an assignment sheet pro-
vided by Montoya to both confirm the accuracy of the
job assignments listed on the employees’ applications,
and determine which applicants worked in the problem
areas noted in his inspection of the buildings. Sierra
added that although his notes from his inspection of the
buildings were “key” in determining which applicants
not to hire, he discarded his notes after making his hiring
decisions, and consequently could not recall any of the
specific reasons for deciding not to hire the alleged dis-
criminatees.
After deciding whom to hire, Sierra provided Montoya
with 80–90 applications. Montoya contacted these em-
ployees, offered them employment, and instructed them
to report for work on February 19.
The Respondent retained at least 76 UNICCO employ-
ees in its initial complement of 146, as well as all of
UNICCO’s supervisors.6 UNICCO employees Amparo
Correa, Armando Pons, and Rosario Lopez were not
among those hired. All three were among the most out-

6 The Respondent did not retain 57 to 67 of the predecessor’s em-
ployees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

884
spoken union supporters during the Union’s efforts to
organize the UNICCO employees.
In a February 21 letter to the Respondent, Shuler as-
serted the Union’s majority status and requested that the
Respondent recognize and bargain with the Union. The
Respondent did not reply to Schuler’s letter.
On March 7, Respondent Supervisor Jamie Munoz
called employee Victor Correa (Correa), a UNICCO em-
ployee retained by the Respondent, into Munoz’ office to
discuss Correa’s job performance. During this conversa-
tion, Correa asked Munoz why “that group of employees
was fired on that day . . . in February 2007,” referring to
the day of the changeover from UNICCO to the Respon-
dent. Correa asked “if they were fired due to discipline
reasons, or if it was because of attendance . . . or if it was
for like conduct, or if it was due to another reason.”
Munoz replied that “it was due to the fact that they
showed a strong support for the Union.” Munoz contin-
ued that Correa “was lucky for being chosen to work for
[the Respondent] because . . . the University . . . [the]
former company, and the current company, and the su-
pervisors knew that [Correa] was involved in the Union.”
Munoz added that “it can happen to [you] the same as it
happened to Mrs. Amparo Correa, Mr. Armando Pons . .
. and Mrs. Rosario Lopez.”7
The judge found that Munoz’ comments to Correa did
not violate Section 8(a)(1), and that the Respondent’s
failure to hire Amparo Correa, Pons, and Lopez did not
violate Section 8(a)(3) and (1) of the Act. Contrary to
the judge, we find that Munoz’ statements and the refusal
to hire the three employees violated the Act as alleged.
Analysis
A. Munoz’ Statement
In dismissing this 8(a)(1) allegation, the judge rea-
soned that while the complaint alleged that Munoz
threatened not to hire employees, Munoz’ statement re-
sponded to a question about employees who were fired.
In addition, as the Respondent had not fired any of the
UNICCO employees, and as there was no evidence that
Munoz was privy to the Respondent’s hiring decisions,
the judge found that Munoz’ comments were an “expres-
sion of opinion” from a low-level supervisor and, as
such, did not violate Section 8(a)(1).
Contrary to the judge and our dissenting colleague, we
find that Munoz’ response to Correa contained an unlaw-
ful threat not to hire union supporters. The context of the
conversation makes clear that Correa’s question referred
to the Respondent’s failure to hire certain UNICCO em-

7 The details of this conversation were established by Correa’s un-
contradicted testimony, which was given through an interpreter.
ployees. Specifically, Correa referenced February 2007,
when the Respondent succeeded UNICCO and made its
hiring decisions.8 More importantly, Munoz’ response
left no doubt that he understood that Correa was referring
to the Respondent’s decision not to hire certain UNICCO
employees. He answered that Correa “was lucky for
being chosen to work for [the Respondent]” despite his
union activity.9 Further, by specifically mentioning Am-
paro Correa, Pons, and Lopez, who, in contrast, were not
hired by the Respondent, Munoz further demonstrated
that he understood the inquiry was about the Respon-
dent’s decision not to hire certain UNICCO employees.10
The judge erred in characterizing the comment as no
more than an “expression of personal opinion by a low-
level supervisor.” Munoz made the comment to Correa
during an official meeting in his office, phrased his mes-
sage as a definitive statement of fact, and added that the
Respondent knew about Correa’s union activity. His
comment did not include any suggestion that he was
merely offering the personal opinion of an uninformed
supervisor.11 Accordingly, Munoz’ statement was coer-
cive, notwithstanding his status as a low-level supervisor.
See Pickering & Co., 254 NLRB 1060 (1981) (holding
that coercive remarks by low echelon supervisors tend to
interfere with or restrain employee rights in the same
way as such conduct by other supervisors or managers).
Based on this analysis, we reverse the judge and find
that Munoz’ statement violated Section 8(a)(1) of the Act
as alleged.
B. Refusals to Hire
The General Counsel contends that the judge errone-
ously dismissed allegations that the Respondent unlaw-
fully refused to hire Amparo Correa, Pons, and Lopez.
We find merit in the General Counsel’s exceptions.

8 In light of the Respondent’s decision to hire many former UNICCO
employees, including all of its supervisors, it is not difficult to see why
Correa would perceive the existence of a continuous employment rela-
tionship and use the word “fired” to characterize the Respondent’s
failure to hire some UNICCO employees.
9 The General Counsel argues on exception that Munoz’ statement—
that Correa was “lucky” to have been hired—additionally constitutes a
threat of discharge and not, as the judge found, a hypothetical observa-
tion that threatened no action. We find it unnecessary to pass on this
unalleged contention because an additional finding of a violation would
not materially affect the remedy.
10 Unlike our dissenting colleague, we are not troubled by the fact
that Correa testified through an interpreter. The judge did not discredit
or otherwise question the reliability of Correa’s uncontradicted testi-
mony. Rather, the judge concluded that the substance of Correa’s
testimony concerned only UNICCO’s termination of employees in
February 2007. As explained, we simply disagree with that reading of
Correa’s testimony. Our colleague is mistaken when he complains that
we have thereby overturned the judge’s credibility-based finding.
11 This case is thus distinguishable from Real Foods Co., 350 NLRB
309, 309–310 fn. 4 (2007).
TCB SYSTEMS, INC.

885
In dismissing these allegations, the judge found that
there was no evidence of antiunion animus on the part of
the Respondent, and therefore the General Counsel failed
to sustain his initial burden under Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982). Contrary to the judge,
we find that Munoz’ statements (to Victor Correa) that
Amparo Correa, Pons, and Lopez were not working for
the Respondent because of their “strong support” for the
Union, and that Victor Correa was lucky to have been
chosen because the Respondent knew that he too was
involved with the Union, provide ample evidence of the
Respondent’s animus. This is reinforced by Munoz’
additional warning to Correa, “it can happen to [you] the
same as it happened to Mrs. Amparo Correa, Mr. Ar-
mando Pons . . . and Mrs. Rosario Lopez.”
We recognize, as the judge found, that there is no evi-
dence that Munoz was personally involved in the Re-
spondent’s decision not to hire Amparo Correa, Pons,
and Lopez. Yet, his statements provide an explanation
for those hiring decisions and it is reasonable to infer that
Munoz, as a supervisor, did know why the decisions
were made, even if he did not make them. Munoz identi-
fied the alleged discriminatees by name and specifically
linked their failure to be hired to their support for the
Union. As explained above, these statements were de-
finitive. They included nothing to suggest that they were
mere expressions of a personal opinion. Nothing in the
record supports the inference that Munoz, for some un-
known reason, was fabricating. In these circumstances,
we find that Munoz’ statements support a finding of
unlawful motive. See, e.g., Grand Canyon Mining Co.,
318 NLRB 748, 748 fn. 2 (1995), enfd. 116 F.3d 1039
(4th Cir. 1997) (relying in part on supervisor’s specific
postlayoff statement that a particular employee had been
laid off because of his union activity).
Our finding of unlawful motivation is further sup-
ported by the Respondent’s failure to substantiate its as-
serted rationale for not hiring Amparo Correa, Pons, and
Lopez, coupled with evidence undercutting that rationale.
The Respondent claimed that, as a general principle, it
did not hire former UNICCO employees who had
worked in areas that the Respondent believed were not
well cleaned. The Respondent, however, introduced no
specific evidence, whether documentary or testimonial,
to substantiate its claim as to any former UNICCO em-
ployees, let alone the employees at issue here. In addi-
tion, the Respondent, despite its asserted concerns, hired
all of UNICCO’s supervisors, including those responsi-
ble for the supposedly dirty work areas.
In those respects, this case is similar to Lemay Caring
Center, 280 NLRB 60 (1986), enfd. 815 F.2d 711 (1987).
In Lemay, a successor employer argued, in part, that it
did not hire some of its predecessor’s union-affiliated
employees because, on visits to the facility, it was dissat-
isfied with the quality of the employees’ work and the
condition of the facility under them. The Board adopted
the judge’s finding that the employer’s assertions war-
ranted an inference of unlawful motivation, given that
the employer had not articulated those reasons to any
employee and, contrary to its asserted concerns, had
hired several of the predecessor’s supervisors who would
have been responsible for the employees’ supposed poor
work and upkeep of the facility. Id. at 70. The same
inference is warranted here, given the Respondent’s own
unsubstantiated assertions and its hiring of UNICCO’s
supervisors.
Our dissenting colleague points out that the judge did
not discredit Sierra’s claim that his hiring decisions were
based on whether a former UNICCO employee was re-
sponsible for dirty work areas in the facility.12 Yet the
judge readily acknowledged that Sierra’s inability to ar-
ticulate specific reasons for not hiring the discriminatees
raised significant suspicions. He dismissed those suspi-
cions, however, based on his conclusion that there was
no other evidence of unlawful motive. In particular, the
judge found no evidence of any inconsistency in the Re-
spondent’s hiring. As demonstrated, however, there was
inconsistency. Further, the judge, having dismissed the
allegation concerning Supervisor Munoz’ statements to
employee Victor Correa, obviously did not consider the
revealing nature of those unlawful statements. In our
view, that additional evidence easily takes the General
Counsel’s case beyond mere suspicion.
For those reasons, we find that the General Counsel
has shown that animus toward the alleged discrimina-
tees’ protected conduct was a motivating factor in the
Respondent’s decision not to hire them.13
Consequently, the burden under Wright Line shifts to
the Respondent to show that it would have taken the
same action even in the absence of the protected conduct.
The Respondent has not presented evidence sufficient to
sustain its burden. The Respondent relies on Sierra’s

12 More specifically, the judge found that Sierra’s claim “was not
shown to be false.” The General Counsel’s burden, however, was to
prove only that the discriminatees’ union activity was more likely than
not a motivating factor in the Respondent’s decision not to hire them.
See Sec. 10(c) of the Act; Wright Line, supra.
13 We find it unnecessary to address the General Counsel’s conten-
tion that an adverse inference is warranted based on the Respondent’s
failure to produce the notes on which Sierra purportedly relied in mak-
ing those hiring decisions. Given Munoz’ statements and the Respon-
dent’s hiring of all of UNICCO’s supervisors, we need not go beyond
the Respondent’s failure to substantiate a legitimate reason for not
hiring the alleged discriminatees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

886
contention that he based his hiring decisions on the notes
he took of the problem areas he observed when inspect-
ing the Nova buildings. That defense, however, is un-
dercut by the Respondent’s own actions. Sierra claimed
he discarded his notes after making his hiring decisions,
and acknowledged that without those notes he could not
provide any specific reasons for the decisions not to hire
the alleged discriminatees. Further, as described, the
Respondent hired the UNICCO supervisors who were
responsible for the supposedly dirty work areas. In these
circumstances, we find that the Respondent has failed to
demonstrate that it would not have hired Amparo Correa,
Pons, and Lopez in the absence of their union activities.
Accordingly, we reverse the judge and find that the Re-
spondent’s refusal to hire these employees violated Sec-
tion 8(a)(3) and (1) of the Act as alleged.
AMENDED CONCLUSIONS OF LAW
1. The Respondent, TCB Systems, Inc., is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Service Employees International Union, Local 32BJ
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
3. By failing and refusing to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of its employees in the appropriate unit,
the Respondent violated Section 8(a)(5) and (1) of the
Act.
4. By threatening not to hire employees because of
their union activities and support, the Respondent vio-
lated Section 8(a)(1) of the Act.
5. By refusing to hire employees Amparo Correa, Ar-
mando Pons, and Rosario Lopez because of their union
activities, the Respondent violated Section 8(a)(3) and
(1) of the Act.
6. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Specifically, having found that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by failing and
refusing to recognize and bargain with the Union, we
shall order the Respondent to recognize and, on request,
bargain with the Union as the exclusive collective-
bargaining representative of the employees in the appro-
priate unit and, and if an understanding is reached, em-
body that understanding in a signed agreement.
In addition, having found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to hire
Amparo Correa, Armando Pons, and Rosario Lopez, we
shall order the Respondent to offer them instatement to
the positions for which they applied or, if those positions
no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges they would have enjoyed absent the discrimi-
nation against them. Further, we shall order the Respon-
dent to make these individuals whole for any loss of
earnings and other benefits that they may have suffered
due to the unlawful actions taken against them. Backpay
shall be computed in the manner prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).14
ORDER
The National Labor Relations Board orders that the
Respondent, TCB Systems, Inc., Miami, Florida, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the Union, Service Employees International Union, Local
32BJ, as the exclusive collective-bargaining representa-
tive of its employees in the following appropriate unit

All full-time and regular part-time cleaning, janitorial,
custodial and housekeeping employees who are as-
signed to perform work at Nova Southeastern Univer-
sity campuses in Miami-Dade County and Broward
County, Florida.

(b) Threatening not to hire employees because of their
union activities and support.
(c) Refusing to hire employees because of their union
activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize, and on request, bargain with the Union
as the exclusive representative of the unit employees and,
if an understanding is reached, embody the understand-
ing in a signed agreement.
(b) Within 14 days from the date of this Order, offer
Amparo Correa, Armando Pons, and Rosario Lopez in-
statement to the positions for which they applied or, if

14 Inasmuch as testimony was elicited through Spanish and Haitian
Creole interpreters, we agree with the judge that, in accordance with the
General Counsel’s request, the notice to employees shall be posted in
English, Spanish, and Haitian Creole.
TCB SYSTEMS, INC.

887
these positions no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority or any
other rights or privileges they would have enjoyed had
they been hired on February 19, 2007.
(c) Make Amparo Correa, Armando Pons, and Rosario
Lopez whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them in
the manner set forth in the amended remedy section of
this decision.
(d) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusals to
hire Amparo Correa, Armando Pons, and Rosario Lopez,
and within 3 days thereafter, notify these employees in
writing that this has been done and that the unlawful re-
fusals to hire will not be used against them in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its facilities at Nova Southeastern University campuses
in Miami-Dade County and Broward County, Florida,
copies of the attached notice marked “Appendix.”15
Copies of the notice, on forms provided by the Regional
Director for Region 12, after being signed by the Re-
spondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days
in conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. The notices shall be posted in English, Spanish,
and Haitian Creole. In the event that during the pend-
ency of these proceedings, the Respondent has gone out
of business or closed the facilities involved in these pro-
ceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employ-
ees and former employees employed by the Respondent
at those locations at any time since February 19, 2007.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-

15 If this Order is enforced by a judgment of the 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 Judg-
ment of the United State Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sponsible official on a form provided by the Region at-
testing to the steps the Respondent has taken to comply.

MEMBER SCHAUMBER, dissenting in part.
The judge dismissed the allegation that the Respon-
dent, through a low-level supervisor, Jaime Munoz, vio-
lated Section 8(a)(1) of the Act by threatening not to hire
employees because of their union activities. The judge
found that the applicable testimony, given through the
aid of an interpreter, concerned Munoz’ answer to a
question about employees who were fired, and thus did
not establish a refusa-to-hire threat. The judge also dis-
missed allegations that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to hire employees
Amparo Correa, Armando Pons, and Rosario Lopez. The
judge found no evidence of animus on the part of the
Respondent and concluded that the General Counsel had
not met his initial burden under Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982). Contrary to my colleagues,
I would not reach out to reverse the judge’s findings,
which were based upon his interpretation of testimony,
much of which was provided through translators, and
credibility resolutions based upon observations of wit-
ness demeanor. Therefore, I respectfully dissent.1
The 8(a)(1) Refusal-to-Hire Threat
The relevant facts are fully set forth in the judge’s
opinion. Briefly, until February 2007, UNICCO was the
cleaning contractor for Nova Southeastern University
(Nova). In October 2006, UNICCO recognized the Un-
ion as the representative of its work force at Nova. Sub-
sequently, Nova replaced UNICCO with the Respondent,
which took over the janitorial contract in February 2007
(although it subcontracted some of the operations). The
Respondent hired many former UNICCO employees,
who constituted a majority of the Respondent’s new
work force. The Respondent, however, did not retain all
of the former UNICCO employees.
The complaint alleges that Munoz threatened not to
hire employees because of their union activities and sup-
port. The General Counsel contends that the violation is
established by employee Victor Correa’s testimony,
given through a Spanish interpreter. Correa testified that
he asked Munoz why “that group of employees were
fired on that day . . . in February 2007,” and “if they
were fired due to discipline reasons, or if it was because
of attendance . . . or . . . conduct, or if it was due to an-
other reason.” Correa added that Munoz replied it “was
due to the fact that they showed a strong support for the

1 I join my colleagues’ finding that the Respondent, as a successor
employer, violated Sec. 8(a)(5) of the Act by refusing to recognize and
bargain with the Union.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

888
Union,” and that the Respondent “knew that I was in-
volved in the Union,” and that “it can happen to me the
same as it happened to . . . Mrs. Amparo Correa, Mr.
Armondo Pons, . . . and Mrs. Rosario Lopez.”
The judge, after declining to speculate as to why
Correa would have engaged in this improbable dialogue,
determined that Munoz’ statement did not constitute a
threat of refusal to hire and dismissed the allegation.
Contrary to my colleagues, I cannot agree that the judge
improperly analyzed this testimony. It is undisputed that
the complaint alleged that the Respondent threatened not
to hire employees because of their union activities, and in
fact discriminated in failing to hire six former UNICCO
employees.2 However, as the judge painstakingly de-
tailed, the General Counsel’s witness specifically testi-
fied that he asked his supervisor why employees were
fired in February, not why employees were not hired.
There is a clear distinction between the two concepts.
My colleagues attempt to rehabilitate testimony, that
could have been clarified by the General Counsel at the
hearing, to fit the complaint allegation, speculating that
the employee must have been referring to the refusal of
the Respondent to hire some of the former UNICCO em-
ployees. Yet this is not what the employee stated at the
hearing, which the judge was there to observe. As the
judge noted, it was UNICCO, and not the Respondent,
that let people go after the changeover. That is, it was
UNICCO that terminated employees in February. Thus,
the judge’s finding that Munoz’ statement did not consti-
tute a threat of refusal to hire is plainly reasonable and
supported by the evidence.3
Moreover, my colleagues’ attempt to bootstrap a viola-
tion here because Munoz responded to the employee’s
question by indicating his own belief that the employees
had been discharged because of their union activity is
unavailing. Whatever Munoz’ opinion about other em-
ployees’ discharges, it had nothing to do with the Re-
spondent’s hiring actions. The General Counsel put forth
no evidence that Munoz, who was not even employed by
the Respondent at the time of the hiring, was aware of
the reasons behind those decisions. In fact, the initial
hiring decisions were made by the Respondent’s vice
president of operations, Victor Sierra, before the Re-

2 The judge dismissed the allegations that the Respondent unlawfully
refused to hire six discriminatees. There are no exceptions as to three
of the alleged discriminatees: Fritz Hector, Frantz Merisier, and Exi-
mene Jules.
3 I note that this is another in a disturbing line of recent cases in
which the majority has overturned administrative law judges’ credibil-
ity-based findings, reinstating dismissed allegations and imposing
liability against respondent employers. See Plaza Auto Center, Inc.,
355 NLRB No. 85 (2010); Kiewit Power Constructors Co., 355 NLRB
No. 150 (2010).
spondent hired any former UNICCO supervisors, includ-
ing Munoz.4 The judge reasonably found that Munoz’
comments were simply his own personal musings about
earlier conduct unrelated to the Respondent.
If there were ambiguities in the conversation, it was
the General Counsel’s burden to clarify them. Thus, I
would defer to the judge’s reasonable interpretation that
there was no threat of refusal to hire and dismiss this
allegation.
The Refusals to Hire Amparo Correa, Pons, and Lopez
The judge dismissed these allegations, finding that the
General Counsel failed to prove the Respondent’s ani-
mus, and therefore did not meet his initial burden under
Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899
(1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
My colleagues, however, find that Munoz’ statement
demonstrates the Respondent’s unlawful motivation. As
explained above, I would find that the remarks of
Munoz, a low-level supervisor who played no role in the
hiring process, were at best ambiguous, and therefore
insufficient to support a finding of antiunion animus.
My colleagues next claim that the Respondent’s “fail-
ure to substantiate its asserted rationale” for not hiring
the employees in question demonstrates an unlawful mo-
tive. But the judge considered that argument and refused
to discredit Sierra’s testimony that his hiring decisions
were based upon his evaluation of whether “an area [that
had been cleaned] was not up to par, was neglected,” and
identifying the responsible employees.5 And the judge
correctly found that although Sierra was unable to articu-
late a specific reason for the failure to hire each of the
alleged discriminatees due to his destruction of his notes
after he made the decisions, that, without more, does not
constitute proof of unlawful motive. Nor does the fact
that the Respondent ultimately hired all the supervisors,
as the General Counsel put forth no evidence of the basis
on which the supervisors were hired.6

4 See generally, Alexian Bros. Medical Center, 307 NLRB 389, 390
(1992) (supervisor’s knowledge of employee’s union activity insuffi-
cient to establish employer’s union animus in the absence of evidence
that the supervisor shared that knowledge with anyone).
5 My colleagues’ contention that they are not reversing the judge’s
credibility findings rings hollow. Plainly, they have found that Sierra’s
testimony is not credible, whereas the judge specifically declined to
make such a finding.
6 Lemay Caring Center, 280 NLRB 60, 70 (1986), enfd. 815 F.2d
711 (1987), cited by the majority, is distinguishable. In that case,
unlike here, the employer committed multiple violations of Sec. 8(a)(1)
when its acting administrator, who had been the predecessor’s assistant
administrator, told employees they would be hired if they withdrew
from the union, and that their continued employment depended on their
withdrawal from the union. The employer also interrogated employees
about their union activities. In these circumstances, the Board con-
cluded that the employer violated Sec. 8(a)(3) and (1) as the evidence,
TCB SYSTEMS, INC.

889
In any event, it is the General Counsel’s burden to
prove animus and the Respondent need not provide any
explanation at all, let alone corroboration of that explana-
tion, in the absence of such proof. Accordingly, I would
adopt the judge’s findings and dismiss the allegations
that the Respondent unlawfully refused to hire these em-
ployees.
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 Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT fail and refuse to recognize and bargain
with the Union, Service Employees International Union,
Local 32BJ, as the exclusive collective-bargaining repre-
sentative of our employees in the following appropriate
unit:

All full-time and regular part-time cleaning, janitorial,
custodial and housekeeping employees who are as-
signed to perform work at Nova Southeastern Univer-
sity campuses in Miami-Dade County and Broward
County, Florida.

WE WILL NOT threaten not to hire you because of your
union activities and support.
WE WILL NOT refuse to hire you because of your union
activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL recognize and, on request, bargain with the
Union and put in writing and sign any agreement reached
on terms and conditions of employment for our employ-
ees in the bargaining unit.

“particularly” the comments to employees, “amply demonstrate[d]” that
the employer’s refusal to hire its predecessor’s employees was due to
their union affiliation. 280 NLRB at 60 fn. 2 (1986). There is no such
demonstration in the instant case.
WE WILL, within 14 days from the date of the Board’s
Order, offer Amparo Correa, Armando Pons, and Rosario
Lopez instatement to the positions for which they applied
or, if these positions no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges.
WE WILL make Amparo Correa, Armando Pons, and
Rosario Lopez whole for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful refusals to hire Amparo Correa, Armondo Pons, and
Rosario Lopez, and WE WILL, within 3 days thereafter,
notify each of them in writing that this has been done and
that the refusals to hire will not be used against them in
any way.
TCB SYSTEMS, INC.

Nicholas M. Ohanesian and John F. King, Esqs., for the Gen-
eral Counsel.
Donald T. Ryce, Esq., for the Respondent.
Katchen Locke, Esq., for the Charging Party.
DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. This case
was tried in Miami, Florida, on August 3, 4, 5, and 6, 2009,
pursuant to complaint issued on April 30, 2009, and amended
on June 3, 2009.1 The complaint alleges that the Respondent is
a successor employer, that the Respondent threatened not to
hire employees because of their union activity in violation of
Section 8(a)(1) of the National Labor Relations Act (the Act),
refused to hire six applicants because of their union activity in
violation of Section 8(a)(1) and (3) of the Act, and failed and
refused to recognize and bargain with the Union in violation of
Section 8(a)(1) and (5). The Respondent’s answer denies any
violation of the Act. I find that the failure of the Respondent to
recognize and bargain with the Union violated the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and the Respondent, I make the follow-
ing2
FINDINGS OF FACT
I. JURISDICTION
The Respondent, TCB Systems, Inc. (TCB), provides build-
ing cleaning and maintenance services to various customers in

1 All dates are in 2007 unless otherwise indicated. The charge was
filed on February 22 and was amended on March 5, June 14, and Au-
gust 28, 2008.
2 Pursuant to my order at the hearing, the parties have tendered Jt.
Exh. 6 as a posthearing exhibit, and General Counsel has tendered Exh.
62(a). They are hereby received.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

890
and around Miami, Florida. TCB annually purchases and re-
ceives goods, materials, and services valued in excess of
$50,000 directly from points located outside the State of Flor-
ida. The Respondent admits, and I find and conclude, that it is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The Respondent admits, and I find and conclude, that Ser-
vice Employees International Union, SEIU, Local 32BJ, suc-
cessor to SEIU Local 11 (the Union), is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
This case involves issues arising from union organizational
activity among janitorial employees who perform cleaning
services at Nova Southeastern University (Nova), the main
campus of which is located in Fort Lauderdale-Davie, Florida.
Prior to February 19, the janitorial employees were employed
by UNICCO Service Company (UNICCO). UNICCO had addi-
tional contracts with other employers, including the University
of Miami.
In 2005, Service Employees International Union, Local 11,
began organizational activity among janitorial employees at the
University of Miami and, in November 2005, organizational
activity began at Nova. The organizational activities included
meetings, rallies, demonstrations, and, at Nova, in March and
April 2006, two short strikes that lasted 1 or 2 days each. The
Union filed unfair labor practice charges against UNICCO. On
September 25, 2006, UNICCO and the Union agreed to submit
the Union’s claim of majority status at Nova to the American
Arbitration Association. The Union and UNICCO agreed to
two separate units, a unit of maintenance technicians and a
janitorial unit. The issues herein relate only to the janitorial
unit.
In support of its claim of majority status, the Union submit-
ted multiple authorization petitions, some of which were signed
by only one or two employees, most of which were signed by
from three to seven employees, and a few of which were signed
by from 8 to 12 employees. There were two versions of the
petition, one in English with a Spanish translation and one in
Haitian Creole. On October 4, 2006, a representative of the
American Arbitration Association certified that the Union had
presented valid petitions which reflected that at least 60 percent
plus one of the employees in the janitorial unit had authorized
the Union to represent them. Consistent with the agreement of
the parties, UNICCO recognized the Union as the exclusive
collective-bargaining representative of the employees in the
following unit:

All janitors, utility cleaners, custodians, lead cleaners,
groundskeepers, utility workers, lead groundskeepers, and
drivers/chauffeurs; excluding supervisors and clerical person-
nel.

Representatives of the Union and UNICCO entered into ne-
gotiations for a collective-bargaining agreement. At those nego-
tiations, an employee committee composed of Amparo Correa,
Rose Marie Fleuranvil, Steve McGonigal, and Wanda
Rodriquez was present. Prior to the parties reaching any agree-
ment, Nova terminated its contract with UNICCO.
Shortly after the Union obtained recognition, it learned that
Nova was seeking a different contractor to provide cleaning
services and that TCB was one of the potential bidders. On
November 28, 2006, Local 11 President Rob Schuler wrote
Robert Orue, owner and president of TCB, advising that the
employees were represented by Local 11, the predecessor of
Local 32BJ, and stating that the Union was making application
for employment with TCB on behalf of the employees named
on an attached typed list. He received no reply to that commu-
nication.
President Schuler thereafter made several unsuccessful at-
tempts to contact Orue by telephone. He ultimately succeeded
in speaking with the district manager of TCB, Eduardo Maestri,
and expressed the Union’s desire that, if TCB obtained the
contract, the represented employees be hired. Maestri stated
that it was “common for them to keep everybody when they
took over an account, that he didn't think that was going to
be a big problem,” but that the client might want to weed
out “a couple of bad apples.” Nova awarded the contract for
work formerly performed by UNICCO to TCB in early Febru-
ary. Schuler again called Maestri, and he agreed to meet with
Schuler. Maestri did not recall speaking with Schuler until after
TCB obtained the contract, and testified that President Orue
requested that he meet with Schuler. The foregoing conflict in
testimony is immaterial.
On February 7, District Manager Maestri and Local 11
President Schuler, accompanied by a director of the Interna-
tional Union, Secky Fascione, met at a local coffee shop.
Schuler recalls that Maestri repeated what he had told him over
the telephone 2 months earlier, that TCB kept the workers
“whenever they take an account over,” but might weed out
“a couple of people at the insistence of the client.” Fas-
cione recalled that Maestri stated that “generally we keep
the staff,” and referred to a recent contract that TCB had
obtained at a local airport. Maestri explained that TCB was
going to subcontract the work at some of the buildings on
the Nova campus and was going to conduct a job fair on
February 10 at which all current employees would be per-
mitted to file applications.
Maestri denied making any comment relating to hiring. He
did not deny mentioning TCB’s assumption of a contract at an
airport. I credit Schuler and Fascione, but note that there is no
evidence that Maestri was involved in hiring or staffing deci-
sions. Insofar as TCB would be subcontracting some of the
work formerly performed by UNICCO, his statement regarding
“generally” keeping the staff would apply only to TCB.
On February 7, following that meeting, Schuler wrote Maes-
tri, attaching petitions that had been signed by the current
UNICCO employees which stated their desire to continue
working at Nova. The letter states that the Union was making
an unconditional offer of employment on their behalf. The let-
ter acknowledges that the employees would need to submit
applications at the Saturday, February 10, job fair.
Victor Sierra, vice president of operations for TCB, was in
charge of the job fair. Consistent with the decision of TCB to
subcontract the janitorial work at certain buildings, representa-
tives of those firms were present at the job fair. All current
TCB SYSTEMS, INC.

891
employees of UNICCO who worked at Nova were given an
opportunity to apply with TCB or the subcontractors at the job
fair which was held at an empty retail facility on the campus.
Applicants were admitted in groups of 10 and referred to the
appropriate potential employer, depending upon the location at
which they were currently working. Representatives of TCB
conducted a brief interview with those who were applying with
TCB, confirming their current job assignment and shift. Each of
the alleged discriminatees submitted an application, one of
whom, Fritz Hector, applied with TCB although the janitorial
work in the building in which he had worked had been subcon-
tracted by TCB to Planned Building Services. President Schuler
received reports that some employees were informed of wage
rates and given the impression that they had been hired whereas
others were told that they would be called. The record does not
establish that the different protocol related to whether the appli-
cant was dealing with TCB or one of the subcontractors. Local
11 Organizing Director Eric Brakken recalled that he and Inter-
national Director Fascione spoke briefly with District Manager
Maestri at the job fair and that he stated that “we’re going to
hire everyone. That’s what we always do.” Maestri denied
that conversation. Whether he made the statement is immate-
rial. Insofar as the work at several buildings and groundskeep-
ing were being subcontracted, TCB was not hiring for the sub-
contracted work. The reports received by President Schuler
contradicted any assurance that TCB was hiring everyone.
TCB and its subcontractors were to take over the cleaning
work on Monday, February 19. Applicants had been told at the
job fair that they would be called to report if they were hired.
On February 16, Sierra provided Montoya with “from 80 to 90”
applications of former UNICCO employees and requested that
he call them, asking them to report to work on February 19.
TCB and its subcontractors initially had a total employee
complement of 277. Of those 277 employees, 131 were em-
ployed by the subcontractors and 146 were employed by TCB.
The typed list of UNICCO employees attached to President
Schuler’s letter of November 28, 2006, contains 296 names,
thus there was a reduction in the total employee complement of
19, assuming that the UNICCO employment complement re-
mained the same. The record does not establish whether the
employee complements at the buildings for which TCB subcon-
tracted the janitorial work were reduced, thus the exact reduc-
tion in the employee complements at each building is not estab-
lished. Over 100 of the former UNICCO employees were not
hired.
Notwithstanding the reduction in the total employee com-
plement and failure of TCB and its subcontractors to hire over
100 of the former UNICCO employees, the parties stipulated
that TCB hired former UNICCO employees as a majority of its
employee complement, employees represented by the Union.
Insofar as the TCB employee complement was 146, TCB hired
76 or more former UNICCO employees, which is consistent
with the testimony of Montoya that Sierra had him call “from
80 to 90” former UNICCO employees. On February 21, Union
President Schuler wrote TCB President Orue asserting the Un-
ion’s majority status, stating that TCB was a successor, and
requesting recognition and bargaining. He received no reply.
On March 5, Schuler wrote Orue attaching a list of 120
UNICCO employees who had not been hired by either TCB or
one of its subcontractors and requesting that they be hired. The
charge herein alleges that 108 employees were not hired. The
foregoing discrepancy is immaterial. Schuler’s letter notes that
Maestri told him that the applications of employees who were
not hired would be forwarded to the subcontractors, and he
requested that he be advised of any additional steps that needed
to be taken. Schuler received no reply to that letter.
TCB subcontracted the groundskeeping work, thus the com-
plaint alleges that the appropriate unit is:

All full-time and regular part-time cleaning, janitorial, custo-
dial and housekeeping employees employed by Respondent
who are assigned to perform work at Nova Southeastern Uni-
versity campuses in Miami-Dade County and Broward
County, Florida.

On September 26, 2008, Local 32BJ became the successor to
Local 11. The Respondent’s answer admits the successorship,
thus there is no issue regarding the identity of the Union, which
is now SEIU Local 32BJ.
B. Preliminary Observations
TCB hired virtually all of the UNICCO supervisors. The
complaint contains four 8(a)(1) allegations, all of which are
attributed to former UNICCO supervisors who were hired by
TCB. There are no 8(a)(1) allegations attributed to any supervi-
sor or manager of TCB who had been historically employed by
TCB prior to its obtaining the Nova contract. The initial hiring
decisions of TCB were made by Vice President of Operations
Sierra prior to February 17, which was before TCB hired any
former UNICCO supervisors.
The complaint alleges that TCB, having hired a majority of
the former UNICCO employees, was obligated to recognize
and bargain with the Union.
Notwithstanding the hiring of a majority of the former
UNICCO employees by TCB, the complaint alleges that TCB
discriminated against six employees by failing to hire them.
The General Counsel and Charging Party argue that the six
were among the most vocal and active supporters of the Union.
Much of the record herein relates to the union activities of the
six alleged discriminatees when employed by UNICCO. Testi-
mony and photographs establish their presence at various rallies
and vigils at which they were observed by supervisors of
UNICCO. As the Respondent correctly points out, however,
these events were attended by numerous other employees, in-
cluding employees who were hired. Newspaper articles in both
English and Spanish that reported upon the campaign contain
photographs and the names of various alleged discriminatees as
well as employees who were hired. There is no probative evi-
dence that any supervisor or manager of TCB who had been
employed by TCB prior to its obtaining the Nova contract was
aware of the level of involvement of the alleged discriminatees
in those union activities. The Union, in its communications
with TCB, the earliest of which was on November 28, 2006,
did not single out any specific supporters of the Union.
The charge herein, filed on February 22 and thereafter
amended, was filed against TCB, the subcontractors, and Nova.
It alleges an unlawful failure to hire 108 employees formerly
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

892
employed by UNICCO. The initial charge identified 14 of those
employees by name, some of whom worked in buildings in
which TCB subcontracted the work. The complaint, which
issued on April 30, 2009, names six alleged discriminatees, one
of whom, Fritz Hector, is still employed by UNICCO. He ap-
plied for a job with TCB although the work at the building to
which he had been assigned was subcontracted. The number of
employees named in the charge increased to 16 when the names
of Rosario Lopez and Frantz Merisier were added in the most
recent amendment to the charge which was filed on August 29,
2008. That amended charge is filed only against TCB. Al-
though the charge alleges that the failure to hire was at the di-
rection of Nova, the compliant makes no such allegation, and
Nova is not a party to this proceeding.
C. Facts
In early February, Vice President of Operations Sierra
learned that TCB had been awarded the Nova contract. He ob-
tained permission to walk through the buildings that TCB
would be cleaning. He recalls that he did so on more than one
occasion. He did not recall that the custodial manager for
UNICCO, Efrain Montoya, accompanied him on one of the
occasions that he walked through the buildings. Montoya re-
called that he did accompany Sierra on one occasion, but they
did not engage in conversation. Sierra was taking notes as he
walked through the various buildings, including the Health
Professions Division, referred to as HPD, a complex consisting
of seven buildings that are interconnected and a parking garage.
Montoya was hired by TCB as its custodial manager at
Nova. He continued to be employed by UNICCO during its
final week as the janitorial contractor at Nova. Melissa Tanon
was assistant manager for UNICCO and was responsible for the
second shift, the night shift. TCB hired her in that same posi-
tion. Shortly after the February 10 job fair, Sierra met with
Montoya after work because he was still a UNICCO employee.
Using Montoya’s current assignment list, Sierra confirmed the
information that the employees had provided at the job fair
regarding their job assignments, thereby establishing which
employees were working in the various buildings that TCB was
going to begin cleaning on February 19. Montoya denied hav-
ing any conversation relating to the Union with anyone from
TCB, stating that his priority was the work and that he was just
trying to keep his job.
Vice President of Operations Sierra testified that he made his
hiring decisions based upon his inspection of the locations and
where the UNICCO employees had worked relative to those
locations as confirmed by Montoya. He denied that he “tried to
find out which employees were strong Union supporters” or
even asking “about Union support.” He had taken notes when
he walked through the buildings and noticed specific “areas that
needed improvement.” He explained that “[i]t wasn't that all the
buildings were totally filthy,” but that there were problem areas
“that needed improvement.” Sierra decided which employees to
hire “based on these people's location where they worked, their
job performance. . . . [I]f I thought that an area was not up to
par, was neglected, that's why I decided not to hire them.”
On February 16, Sierra provided Montoya with “from 80 to
90” applications, and Montoya called those employees over the
weekend of February 17 and 18, requesting them to report to
work and began working for TCB. Employees who were not
called, including the six alleged discriminatees, also reported to
the campus on February 19, and they were informed that they
had not been hired.
The record establishes the union activity of the alleged dis-
criminatees, much of which occurred in 2006 in the course of
the organizational campaign, a campaign that resulted in the
predecessor, UNICCO, recognizing the Union. Although each
of the alleged discriminatees engaged in significant union activ-
ity, their level of involvement differed. Alleged discriminatees
Eximene Jules, Fritz Hector, and Frantz Merisier did not work
at Nova until September 2006, thus they did not participate in
the two short strikes in the spring of 2006, strikes in which
Amparo Correa, Armando Pons, and Rosario Lopez, as well as
over 60 other UNICCO employees did participate. The Union
did not separately name alleged discriminatees Rosario Lopez
and Frantz Merisier in the initial charge that identified 14 em-
ployees by name. Their names were added over a year later in
the most recent amendment to the charge which was filed on
August 29, 2008. Alleged discriminatee Amparo Correa, when
asked to identify the most outspoken union advocates working
at the HPD complex, identified herself, Pons and Lopez, not
Jules or Merisier.
Of the six named discriminatees, four worked on the second
or night shift in the HPD complex, one worked on the day shift
in that complex, and one, Fritz Hector, worked at the Sport
Center, one of the buildings at which the work was subcon-
tracted. None of the alleged discriminatees are native speakers
of English, and all except Fritz Hector testified through an in-
terpreter in their native language, either Spanish or Haitian
Creole.
Fritz Hector’s native language is Haitian Creole. Although
an interpreter was present, he testified in English. Hector began
working for UNICCO as a cleaner at the Miami Country Day
School in or before the year 2000. UNICCO lost the contract at
Miami Country Day School, and he was transferred to the Nova
campus in September 2006, where he worked in the Sport Cen-
ter. TCB subcontracted the work at the Sport Center to Planned
Building Services. Planned Building Services was represented
at the job fair on February 10; however, Hector, applied only
with TCB. Hector did not testify regarding how it happened
that he failed to apply with Planned Building Services. He was
not called to report to work on February 19. He went to the
Sport Center and explained that he had been working there for
five months. He heard that TCB was assigning employees from
the Physical Plant Building, he went there and located Efrain
Montoya, who as custodial manager for UNICCO had overseen
all of the buildings. He asked him about his job, stating that he
had applied “with TCB” but had not heard from them. Montoya
replied that he could “go outside and talk to the Union to give
you a job.” The record does not reflect whether he did so. Hec-
tor is still employed by UNICCO at a different location.
Marie Hector, Fritz Hector’s wife, is not alleged as a dis-
criminatee. Her native language is Haitian Creole, and she testi-
fied through an interpreter. Like her husband Fritz, Marie Hec-
tor was transferred to the Nova campus in September 2006. She
worked in the Family Center, one of the buildings at which the
TCB SYSTEMS, INC.

893
cleaning work was subcontracted to Planned Building Services.
It appears that she did apply for work with that company inso-
far a Planned Building Services supervisor she identified as
Carlos called her to come to work but then called again stating
that he had made a mistake, that she was not to come to work.
Hector went to the campus because she wanted to see Carlos
“face-to-face.” She confronted him regarding the two telephone
calls. Carlos responded that he had told her not to come in.
Marie Hector located Montoya, who she referred to as Mr.
Efrain, and explained the two calls from Carlos. She reported
that Carlos told her that he did not have to tell her anything, and
requested, “Mr. Efrain [Montoya], you have to tell me
something.” Montoya answered, “[O]kay, I don’t have a
job for you. That's what I say.” Marie Hector testified that
she persisted, saying, “[O]kay, you don’t have a job for me
for why, because I’m a union member?” She claimed that
Montoya answered, “[Y]es, go to them, ask the Union to
give you a job.” Marie Hector mentioned nothing about
her husband Fritz Hector or Eximene Jules being present.
Eximene Jules’ native language is Haitian Creole, and she
testified through an interpreter. Jules began work for UNICCO
at Miami Country Day School in 1998. She was transferred to
the Nova campus in September 2006 when UNICCO lost that
contract. She was assigned to work at the HPD complex. She
filled out an application at the job fair and recalls being asked
about her position. She responded that she worked at the HPD
Building. The individual with whom she spoke took her appli-
cation and said that he would call her back. Jules was not
called, but she went to the Nova campus on February 19. She
presented her identification card which a representative of TCB
compared to a list. She was informed that her name was not on
the list. Jules recalled that both Custodial Manager Efrain
Montoya and second-shift supervisor at the HPD complex,
Jamie Munoz, were present. Jules confronted Montoya, stating
that she had been cleaning for a long time. Montoya answered,
“I don’t have a job for you. If you want a job, talk to Union.”
When repeating what Montoya said, Jules testified that he said,
“[G]o to Union. I don’t have a job.” The foregoing exchange
was spoken in English. Although Fritz Hector did not mention
the presence of Jules or his wife, Marie Hector, Jules testified
that Fritz Hector was present when she spoke to Montoya, “it
was the three of us that were together at that moment.” Jules
claimed that she then asked Montoya “why you don’t have a
job for me because I’m from Union,” and that Montoya an-
swered, “Yes.” She recalled that Montoya told both Fritz Hec-
tor and Marie Hector, “I don’t have a job for you. Go talk to
Union.”
Montoya denied telling any employees that the reason they
were not hired was related to their union activity, that he told
employees that he had nothing to do with the hiring process.
Amparo Correa’s native language is Spanish, and she testi-
fied through an interpreter. Correa began working for UNICCO
in 2001. She worked in the HPD complex, and in 2007 was
lead custodian on the night shift in the dental building. She
applied at the job fair on February 10. She asked the male indi-
vidual with whom she spoke whether she would continue to
work “in the same job I was doing before.” He answered that he
did not know. Correa was not called to come to work. Despite
that, she reported to the HPD complex shortly before 6 p.m. on
Monday, February 19, with a number of other employees in-
cluding Armando Pons and Rosario Lopez. Assistant Manager
Melissa Tanon arrived carrying a sheet of paper and called the
names of those who were to enter and go to work. Correa re-
calls that the names of three or four were not called, including
herself. She asked Assistant Manager Tanon why she was not
called and Tanon answered that the “people that were called
were chosen.” Correa asked if “it was because we were in the
Union.” Tanon answered that “she didn’t know.”
Armando Pons’ native language is Spanish, and he testified
through an interpreter. Pons began working for UNICCO at
Nova in June 2004. He was responsible for floors and house-
keeping on the first and second floors of one of the buildings in
the HPD complex on the night shift. He did not specify which
building. Pons attended the job fair and turned in an applica-
tion. On February 19 he came to the campus shortly before 6
p.m. He reported to the Physical Plant Building and was sent to
the HPD complex. Assistant Manager Tanon had a list and
began calling the names of the people that were to go to work.
Pons’ name was not called, nor were the names of Correa or
Rosario Lopez called. Pons recalled that Correa asked Tanon
who had made the list and that Tanon replied “the new Com-
pany.” He asked why his name was not included, but Tanon did
not answer him. Correa asked whether it was “due to the Un-
ion.” Tanon answered that “she didn’t know.”
Rosario Lopez’ native language is Spanish, and she testified
through an interpreter. She began working for UNICCO at
Nova in April 2002 and was a lead in housekeeping in zone 2
of the HPD complex on the night shift. Although not called, she
reported to the HPD complex shortly before 6 p.m. on February
19 where she and others waited outside. Assistant Manager
Tanon came out with a list and informed the employees that the
names she was calling were to enter. She began calling names.
Lopez recalled that “several of us remained outside” because
their names were not called. Amparo Correa asked Tanon why
the names of those who remained outside had not been called,
“was it because we were in the Union.” Tanon answered that
“this is the list of the chosen people. This is the list that Efrain
[Montoya] gave her.” Lopez recalled no response to Correa’s
question relating to the Union.
Frantz Merisier’s native language is Haitian Creole, and he
testified through an interpreter. Merisier had worked for
UNICCO at Miami Country Day School and was transferred to
the Nova campus in September 2006 after UNICCO lost that
contract. He worked on the night shift as a floor cleaner in the
Terry Building, part of the HPD complex. He applied at the
February 10 job fair. The lady, who was “wearing a T-shirt
with . . . TCB written” on it, took his application and asked him
about his job to which he replied that he did “the floors.” She
stated that the Company would call him. TCB did not call. Al-
though he had not been called, Merisier went to the HPD com-
plex on February 19. While outside the building, he received a
call on his cellular telephone from “two friends” whom he iden-
tified as Emile Desire and one of the children of Joel Miracle,
whose name he did not know, telling him that Assistant Man-
ager Melissa Tanon had called his name. He entered the build-
ing. When Tanon saw him, “her face changed.” She asked
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

894
whether the Company called him, and he untruthfully replied,
“Yes.” Tanon disputed his answer, stating that the Company
had not called him. Merisier replied that two of his friends had
called telling him that his name was on her list. Tanon replied
that she did not call him, “I called another Frantz.” According
to Merisier, Tanon left and, after about 45 minutes, returned
and stated that the Company had not called him. Merisier re-
plied that his name was on her list, to which Tanon again stated
that she had called another Frantz. Merisier testified that he
asked whether it was “because I’m a union member you don’t
have any job for me,” and that Tanon answered, “I don’t have
any job for union people.” In a pretrial affidavit, Merisier stated
that Tanon stated that “because I am a union member, she
doesn't have any job for me.”
According to Montoya, all employees first reported to the
Physical Plant Building from which they were sent to their
work locations. It would appear that the foregoing testimony
was correct with regard to all but the second shift at the HPD
complex. The mutually corroborative testimony of Pons, who
went first to the Physical Plant Building and was sent to HPD,
and Correa and Lopez, both of whom went directly to the HPD
complex, confirm that, with regard to the second shift at HPD,
employees were informed that they had been hired at that loca-
tion.
Assistant Manager Tanon denied that she had a list and
called out the names of the employees. She also denied being
questioned by any employee regarding not being hired because
of their union membership. Tanon denied even knowing how
many employees TCB had hired to work on night shift at the
HPD complex. I find Tanon’s testimony incredible. Amparo
Correa, Armando Pons, and Rosario Lopez confirm that Tanon
did have a list and called out names and that Correa asked
whether the employees whose names were not called were not
called “because we were in the Union.” Correa and Pons agree
that Tanon answered that “she didn’t know.” Notwithstanding
Tanon’s incredible testimony, her statements and conduct, as
reported by the employees, do not suggest that she had any role
in the selection of the employees. She told the employees that
the list was made by “the new Company” and that she had been
given the list by Montoya. Confirmation of that statement is
established by her leaving Merisier to investigate after he un-
truthfully told her that he had been called by TCB. If she had a
role in creating the list, no investigation would have been nec-
essary.
Joel Miracle, the father of the unnamed “friend” to whom
Merisier referred, had worked in the Family Center, one of the
buildings subcontracted to Planned Building Services. He ap-
plied with Planned Buildings Services, but was not called. On
February 19, he went to the campus and spoke with Carlos, the
supervisor for Planned Building Services. Miracle recalled that,
when he confronted Carlos about not having been called, that
Carlos replied that “as I worked beforehand for UNICCO, that
he couldn’t give me a job.”
Miracle, whose native language is Haitian Creole testified
through an interpreter. A few days after his February 19 con-
versation with Carlos, Miracle returned to the campus and
sought out Efrain Montoya, who had formerly been the
UNICCO custodial manager, but who now was only custodial
manager for the buildings being serviced by TCB. Although not
testifying that he complained about not being hired by Planned
Building Services, it appears that he did so, emphasizing his
need for a job by explaining that he had seven children. He
recalled that Montoya stated to him, “You working for
UNICCO and Carlos told me you member from the Union
so you can’t do the job.” The foregoing statement was
made in English, and Miracle admitted that he does “not
understand English very well.”
On March 7, employee Victor Correa and Supervisor Jamie
Munoz engaged in a conversation relating to a complaint re-
garding Correa’s job performance. In the course of the conver-
sation, Correa testified that Munoz made statements relating to
the lack of employment of three of the alleged discriminatees.
Munoz did not testify.
Correa, whose native language is Spanish, testified through
an interpreter. Correa had been employed in the Parker Build-
ing, part of the HPD complex, by UNICCO for several years.
He actively supported the Union and engaged in the two strikes
in 2006. Supervisor Munoz had observed him wearing prounion
paraphernalia, including union pins and a union bracelet, but
Correa did not claim that Munoz made any comments to him in
that regard.
On March 7, Supervisor Munoz called Correa to his office
and spoke with him regarding a complaint about a job that he
had performed improperly. The conversation was in Spanish.
Munoz emphasized the necessity for doing a good job because
TCB was “in a testing period of three months.” Correa, who
acknowledged that he was [t]aking advantage of that occasion,”
asked why “that group of employees were fired on that day,” an
apparent reference to the February change of employers. He
asked “if they were fired due to discipline reasons, or if it was
because of attendance, . . . or . . . conduct, or if it was due to
another reason.” According to Correa, Munoz replied that it
“was because they showed a strong support to the Union.” He
stated that Correa was “lucky for being chosen to work for TCB
because . . . the University, . . . the former company, and the
current company and the supervisors knew that I was involved
in the Union.” According to Correa, Munoz then said that “it
can happen to me the same as it happen to them, Mrs. Amparo
Correa, Mr. Armando Pons, . . . and Mrs. Rosario Lopez.”
Correa, in a pretrial affidavit, stated that he believed that all
the employees who were hired supported the Union. On cross
examination he acknowledged that TCB hired a number of
UNICCO employees, including himself, who had participated
in the strikes.
There is no evidence that Supervisor Munoz was involved in
any hiring decisions. Munoz reports to Assistant Manager Ta-
non.
D. Analysis and Concluding Findings
1. The 8(a)(1) allegations
Subparagraph 8(a) of the complaint alleges that Custodial
Manager Efrain Montoya, on February 19, threatened not to
hire employees because of their union activities and support.
The evidence relating to this allegation consists of the testi-
mony of Eximene Jules, Marie Hector, and Fritz Hector.
Jules recalled that she asked Montoya, “[W]hy you don’t have
TCB SYSTEMS, INC.

895
a job for me because I’m from Union?” and that Montoya an-
swered, “Yes.” Marie Hector claims that she asked Montoya,
“[O]kay, you don't have a job for me for why, because I'm
a union member?” and that Montoya answered, “[Y]es, go
to them, ask the Union to give you a job.” The foregoing
statements, if credited, establish that employees were in-
formed that they had not been hired because of their union
affiliation.
Neither Fritz nor Marie Hector mentioned that Eximene
Jules, in what their testimony implied were separate individual
conversations with Montoya, was present. Their testimony does
not, however, exclude her presence. I am mindful of the lan-
guage barrier involved in assessing the evidence regarding this
violation. Although Fritz Hector testified in English, both
Marie Hector and Jules testified through an interpreter. The
testimony of Fritz Hector establishes that the conversation with
Montoya was in English. Jules, who had worked at the HPD
complex and applied with TCB, claims that she asked whether
she did not have a job because she was “from Union” and that
Montoya answered, “Yes.” Jules placed Fritz Hector as being
present, “it was three of us that were together,” when her con-
versation occurred, but Fritz Hector did not corroborate Jules’
testimony regarding her question or Montoya’s alleged re-
sponse. Jules testified that Fritz and Marie Hector each asked
Montoya why they did not have jobs, and were told, “I don’t
have a job for you. Go talk to Union.” Thus, Jules does not
corroborate the claim of Marie Hector that she asked whether
she did not have a job because she was a union member and
that Montoya answered, “Yes.” Marie Hector had not applied
with TCB. She was denied employment by Planned Building
Services, not the Respondent. Fritz Hector, although working at
the Sport Center, applied with TCB notwithstanding that the
Sport Center work had been subcontracted to Planned Building
Services. He recalled that Montoya told him that he could “go
outside and talk to the Union to give you a job.” Fritz Hector
did not corroborate the testimony of either Marie Hector or
Jules regarding one or both of them questioning Montoya re-
garding whether they had not been hired because of the Union.
The mutually corroborative testimony of Jules and of Fritz
and Marie Hector establishes that, when they confronted
Montoya with their failure to be hired, he told each of them to
“talk to the Union.” The Union was the collective bargaining
representative of the UNICCO employees. Montoya’s sugges-
tion did not violate the Act, and it is not alleged to have vio-
lated the Act. Whether Fritz Hector, an alleged discriminatee
and active supporter of the Union, did speak with the Union
and whether the Union took any action on his behalf is not
reflected in the record; however, Hector is still employed by
UNICCO at a different location. Marie Hector had not applied
with TCB. She was denied employment by Planned Building
Services. Although I do not credit her uncorroborated testi-
mony, I note that the complaint allegation relates only to the
Respondent. I do not credit the uncorroborated testimony of
Jules that Montoya informed her that she had not been hired
because of her union affiliation. I shall recommend that sub-
paragraph 8(a) of the compliant be dismissed.
Subparagraph 8(b) of the complaint alleges that Tanon, on
February 19, threatened not to hire employees because of their
union activities and support. The evidence relating to this alle-
gation consists of the testimony of Frantz Merisier that, when
he asked whether it was “because I’m a union member you
don’t have any job for me,” Tanon answered, “I don’t have any
job for union people.”
As already discussed, I do not credit the denials of Tanon
that she did not have a list or was questioned as to whether
employees were not hired because of their union membership.
Correa and Pons confirm that Tanon responded to the Correa’s
question relating to union membership by stating that “she
didn’t know.” Notwithstanding my discrediting of Tanon, I find
that she would not have abandoned that noncommittal “didn’t
know” response when speaking with Merisier. I have difficulty
crediting Merisier who admitted untruthfully informing Tanon
that he had been called by TCB. Merisier’s reference to “two
friends” having called him on his cellular telephone, one of
them whose name he did not know, reflects a lack of precision
in his testimony. People know the names of their friends. That
lack of precision is present in the discrepancy between his tes-
timony and his pretrial affidavit. In his pretrial affidavit, Meris-
ier stated that Tanon stated that “because I am a union member,
she doesn’t have any job for me.” (Emphasis added.) In testi-
mony he stated that he asked whether it was “because I’m a
union member you don’t have any job for me” and that Tanon
answered, “I don’t have any job for union people.” I do not
credit the statement in the affidavit of Merisier that Tanon
spontaneously stated that “because I am a union member, she
doesn’t have any job for me.” Accepting the testimony of Mer-
isier that he did ask whether it was “because I’m a union mem-
ber you don’t have any job for me,” I find that Tanon, consis-
tent with the last phrase Merisier attributed to Tanon in his
affidavit, noncommittally replied that she “doesn’t have any job
for me.” I shall recommend that subparagraph 8(b) of the com-
plaint be dismissed.
Subparagraph 8(c) of the complaint alleges that the Respon-
dent, through Custodial Manager Montoya, on February 21,
threatened not to hire employees because of their union activi-
ties and support. This allegation is predicated upon the testi-
mony of Joel Miracle. Miracle claims that, after he had spoken
to Planned Building Services Supervisor Carlos, Montoya told
him that he was told by Carlos that Miracle was not hired by
Planned Building Services because he was a member of the
Union as a UNICCO employee. The foregoing hearsay state-
ment, similar to what Carlos told Miracle directly, does not
threaten any action by the Respondent. No amendment to the
complaint was offered. The Respondent did hire employees
who supported the Union. I shall recommend that subparagraph
8(c) be dismissed.
Subparagraph 8(d) of the complaint, alleges that the Respon-
dent, through Supervisor Jamie Munoz, on March 7, threatened
not to hire employees because of their union activities and sup-
port. The uncontradicted testimony of Correa establishes that,
upon asking why “that group of employees were fired on that
day,” Munoz replied that it “was because they showed a strong
support to the Union.” He then went on to state that Correa was
lucky to have been hired and that it could happen to him. I need
not speculate as to what prompted Correa, who acknowledged
that he took “advantage of that occasion,” to speak with his
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

896
supervisor. Regardless of why he did so, Correa did not ask
why employees were not hired. He asked why employees were
fired.
The complaint alleges a threat of refusal to hire, not a threat
of discharge. The brief of the General Counsel, in arguing that
Munoz’ comments threatened a refusal to hire, does not discuss
his comments in the order in which Correa testified the state-
ments were made. Correa asked why employees were fired. The
only employer that fired employees in February was UNICCO.
Although Munoz attributed the discharges to employee support
of the Union, there is no evidence that Munoz was privy to
whatever considerations led UNICCO to retain some of the
employees who had formerly worked at the Nova campus who
were not hired by the Respondent or any of the subcontractors
but to fire others. Fritz Hector, an open and active supporter of
the Union, continued to work for UNICCO at another location.
The retention of Hector belies Munoz’ opinion that the firings
by UNICCO, which had recognized the Union, related to union
support. UNICCO is not a party to this proceeding.
Munoz’ statement that Correa was lucky to have been hired
threatened nothing. It was an “expression of personal opinion
by a low-level supervisor.” See Universidad Interamericana,
268 NLRB 1171, 1178 at fn. 23 (1984). There is no evidence
that Munoz was privy to the hiring decisions of the Respondent,
decisions made before he was employed by the Respondent and
which resulted in the hiring of multiple employees who sup-
ported the Union, including Correa.
Munoz’ statement that “it can happen to me the same as it
happen to them,” naming Amparo Correa, Pons, and Lopez,
was a hypothetical observation that threatened no action by the
Respondent. It could not constitute a threat of refusal to hire
because Victor Correa had been hired. There is no allegation of
a threat of discharge, and the Respondent fired no one.
Munoz’ opinion that employees who were fired in February
were fired because of their strong support of the Union did not
mention the Respondent. The Respondent fired no one. Correa
did not ask why employees were not hired. He asked why em-
ployees were fired. The only terminations that occurred in Feb-
ruary were terminations by UNICCO. I shall recommend that
subparagraph 8(d) of the complaint be dismissed.
2. The refusals to hire
The complaint, in paragraph 9, alleges that the Respondent
discriminatorily failed to hire six named employees because of
their union activities. In Planned Building Services, 347 NLRB
670 (2006), the Board reaffirmed that a modified Wright Line
analysis was applicable to a successor’s hiring practices.3 In
Planned Building Service, a majority of employees of the suc-
cessor were not hired. In this case, although a majority of the
predecessor’s employees were hired, the General Counsel ar-

3 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899
(1st Cir. 1981). cert. denied 455 U.S. 989 (1982), holds that, to set forth
a violation under Sec. 8(a)(3), the General Counsel is required to show
by a preponderance of the evidence that animus against protected con-
duct was a motivating factor in the employer's conduct. Once this
showing has been made, the burden shifts to the employer to demon-
strate that the same action would have taken place even in the absence
of the protected conduct.
gues that six of the Union’s most vocal and active advocates,
the alleged discriminatees, were not hired because of their un-
ion activities.
In Planned Building Services, the Board noted that factors to
be considered in determining a successor’s motive regarding
hiring included “expressions of union animus; absence of a
convincing rationale for failure to hire the predecessor’s em-
ployees, inconsistent hiring practices or overt acts or conduct
demonstrating a discriminatory motive; and evidence support-
ing a reasonable inference that the new owner conducted its
hiring in a [discriminatory] manner.” Id. at 673.
There is no evidence of union animus on the part of the Re-
spondent. There is no evidence that the UNICCO supervisors
hired by the Respondent expressed animus to the Respondent’s
managers or identified any employees who should not be hired
because of their leadership in union activities. The Respon-
dent’s decisions regarding hiring were made prior to the em-
ployment of any former UNICCO supervisors. District Man-
ager Maestri’s statements regarding the past practice of the
Respondent made no commitment to hire. The representatives
of the Union had to have known that his statement at the job
fair, that “we’re going to hire everyone, that’s what we always
do,” could not be true insofar as work was to be subcontracted.
Whether the statements were made in ignorance or to avoid a
confrontation is immaterial insofar as they do not express ani-
mus. The failure of the Respondent to respond to the Union’s
demand for recognition was consistent with its denial of a bar-
gaining obligation.
In this case, a majority of the predecessor’s employees were
hired; thus, an inference of discrimination due to failure to hire
a majority of those employees does not exist. The Respondent’s
rationale, that it did not hire employees who worked in areas
that Vice President of Operations Sierra had observed as being
particularly dirty, was not demonstrated to be false.
The Respondent hired 147 employees. Sierra asked Montoya
to call from 80 to 90 former UNICCO employees. Thus, from
57 to 67 former UNICCO employees, including the six alleged
discriminatees, were not called, hired, or returned to their for-
mer positions. Sierra testified that he could not specifically
recall why the six named discriminatees were not hired. He
admits that after making his hiring decisions based upon his
review of his notes regarding particularly dirty areas and his
determination of the identity of the employees who worked in
those areas, that he threw the notes away. He explained that he
did not thereafter hire any of those employees because “it
doesn’t make sense if I don’t hire somebody because of
poor job performance, it doesn't seem right that I . . . hire
them later on . . . .
The General Counsel argues that Sierra’s destruction of his
notes reveals the Respondent’s discriminatory motivation. I
agree that their destruction raises a suspicion that the notes, had
they not been destroyed, would not correspond to the hiring
rationale that Sierra claimed he followed. Nevertheless, as
pointed out in T. K. Productions, 332 NLRB 110, 124 (2000),
“suspicion does not even raise a presumption of illegality,
much less proof. . . . While, to be sure, suspicion may exist as
to the real motivations and reasons which underlie . . . . [the
Respondent’s actions,] suspicion breeds and feeds upon itself,
TCB SYSTEMS, INC.

897
and it may not form the core for inference nor serve as substi-
tute for the substantial credible proof that the law requires.’
Laborers Local 282 (Elzinga-Lakin), 226 NLRB 958, 959
(1976).”
The General Counsel presented no evidence reflecting incon-
sistent hiring practices. Amparo Correa had worked as lead
custodian in the dental building, part of the HPD complex, on
second shift, the night shift. There is no evidence regarding
whether the lead custodian on first shift was hired. Rosario
Perez had worked as a lead in housekeeping on night shift in
zone 2 of the HPD complex. There is no evidence regarding
whether the zone 2 lead custodian on first shift was hired.
Frantz Merisier worked as a floor cleaner on the night shift in
the Terry Building. There is no evidence as to whether the first
shift floor cleaner in that building was hired. The specific loca-
tions at which employees Eximene Jules and Armando Pons
worked are not reflected in the record. In the absence of any
evidence of inconsistency, I am unable to find that the Respon-
dent engaged in inconsistent hiring practices. The record does
not establish evidence of a hiring scheme designed to deny
employment to the named discriminatees.
Although the failure of Sierra to recall the specific reason for
the Respondent’s failure to hire each of the six named discrimi-
natees raises a suspicion that, if stated, the reason would be a
discriminatory reason, suspicion is not “credible proof.” The
alleged discriminatees named in the complaint, along with from
57 to 67 other former UNICCO employees, were not hired by
the Respondent. The rationale the Respondent used in making
its hiring decisions, i.e., the conditions that Sierra observed
matched to the identity of the employees who worked in those
areas, was not shown to be false. Sierra’s inability to articulate
a specific reason for the failure to hire each of the alleged dis-
criminatees due to his destruction of his notes after making his
hiring decisions raises significant suspicions, but suspicions are
no substitute for proof.
As already noted, there is no evidence of animus on the part
of the Respondent’s managers who made the hiring decisions
prior to the employment of any former UNICCO supervisors.
There is no probative evidence of a hiring scheme designed to
deny employment to employees who supported the Union, nor
is there any evidence of inconsistent hiring practices. A major-
ity of the work force hired by the Respondent consisted of for-
mer UNICCO employees, including employees who had par-
ticipated in the strikes and been photographed at union rallies.
The General Counsel argues that I should discredit the testi-
mony of Montoya, who denied having any conversation relat-
ing to the Union with anyone from TCB, and Sierra, who de-
nied that he “tried to find out which employees were strong
Union supporters” or even asking “about Union support,”
and impute Montoya’s knowledge to Sierra. That imputation
would require that I infer that Sierra did ask about, and that
Montoya did identify, individuals who engaged in significant
union activity including each of the alleged discriminatees. The
General Counsel further argues that I should discredit Sierra’s
testimony that he did not recall why he failed to hire each of the
alleged discriminatees and infer that he did recall why he failed
to hire them. Finally, the General Counsel argues that I should
discredit Sierra’s testimony that his determination not to hire
was based upon whether “an area was not up to par, was
neglected” and identifying the employees who worked in
that area and find instead that his decision not to hire was
based upon the discriminatees’ strong support of the Un-
ion.
Thus, in order to find that the General Counsel sustained the
burden of proof, I would have to rely upon three inferences:
first that Montoya, contrary to his testimony and the testimony
of Sierra, did make Sierra aware of the union activity of the
alleged discriminatees; second, that Sierra, contrary to his tes-
timony, did recall why he failed to hire the alleged discrimina-
tees; and third, that Sierra, contrary to his testimony, made his
hiring decisions based upon the alleged discriminatees’ union
activity rather than identifying the employees who worked in
one of the areas that he determined were “not up to par, ne-
glected.”
The foregoing inferences do not constitute substantial evi-
dence. The Board has long held that “[i]nferences must be
founded upon substantial evidence upon the record as a whole”
and since an inference is not substantial evidence, “an inference
based on an inference is impermissible.” Steel-Tex Mfg.Corp.,
206 NLRB 461, 463 (1973); Diagnostic Center Hospital Corp.,
228 NLRB 1215, 1216 (1977). This record does not establish
that the Respondent denied employment to the alleged dis-
criminatees because of their union activities. I shall recommend
that paragraph 9 of the complaint be dismissed.
3. The obligation to bargain
Paragraph 10 of the complaint alleges the failure and refusal
of the Respondent to recognize and bargain with the Union
since March 9, and the Respondent’s answer admits that re-
fusal. The obligation to bargain is predicated upon the status of
the Respondent as a successor. The parties stipulated that the
Respondent, as of March 9, “employed a substantial and repre-
sentative complement" of unit employees “as a majority” of its
workforce that had been “previously employed by UNICCO,”
did hire a majority of former UNICCO employees, and that
“the cleaning, janitorial, custodial, and housekeeping work”
formerly performed by UNICCO “has been performed . . . . in a
substantially similar manner” by the Respondent. NLRB v.
Burns Security Services, 406 U.S. 272 (1972). The Respondent
is a successor.
Notwithstanding its status as a successor, the Respondent
contends that it is not obligated to bargain insofar as the unit is
inappropriate. As already discussed, the Respondent decided to
subcontract some of the work performed by UNICCO, the
groundskeeping work and the work at certain buildings, to four
subcontractors. The Respondent has ceased subcontracting the
work initially subcontracted to one of those subcontractors,
Exceed.
Although the answer of the Respondent raised multiple de-
fenses, the parties have stipulated that the denial of the appro-
priateness of the unit is limited to the following issues:

A. The recognition of then SEIU Local 11 by UNICCO was
unlawful.
B. The collective bargaining unit recognized by
UNICCO for Nova Southeastern University is not appro-
priate for successorship purposes because the work for-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

898
merly performed by UNICCO is now being performed the
Respondent, Excel Corp., Planned Building Services, and
Greensource Corp.
C. On the date the Respondent is alleged to have in-
curred a bargaining obligation . . . Exceed [which ceased
to be a subcontractor] was performing the janitorial work
for Nova Southeastern University at the East Campus
Building, the Main Library, and the Dormitories at Central
Campus.

Exceed ceased being a subcontractor approximately 1–1/2
months or 2 months after February 19, and the Respondent
employed Exceed’s employees. The Respondent argues that
Exceed was never shown to be a successor. That is irrelevant.
Regardless of whether Exceed was a successor due to employ-
ment of former UNICCO employees, Exceed’s employees be-
came new employees of the Respondent after the bargaining
obligation had attached. New employees are presumed to sup-
port a union to the same extent as employees in the employee
complement. Christopher Street Corp., 286 NLRB 253 at fn. 2
(1987).
The Respondent presented no evidence establishing that the
recognition of the Union by UNICCO was unlawful. A succes-
sor seeking to avoid an obligation to bargain bears the burden
of proof and must “affirmatively prove a lack of majority at the
time of recognition.” Concord Services, 310 NLRB 821, 822
(1993). The Respondent has not done so.
Although the Respondent decided to subcontract some of the
work that had been performed by UNICCO, the Respondent’s
employees at Nova who had formerly been employed by
UNICCO are performing the same work in the same buildings
under the same supervision as they had been for the predeces-
sor. The parties have stipulated that, as of March 9, former
UNICCO employees constituted a majority of its work force.
Because of the subcontracting, the Respondent TCB’s work-
force was smaller that the work force of UNICCO. A diminu-
tion of the size of a unit does not render the unit inappropriate.
“The Board has long held, with court approval, that under
proper circumstances, the obligation to bargain with an incum-
bent union may be found although the work force is considera-
bly diminished by the transfer.” William B. Allen, 267 NLRB
700, 705 (1983). See also MSK Cargo/King Express, 348
NLRB 1096 (2006).
A single-employer bargaining unit is presumptively appro-
priate. See Harbor Plywood Corp., 119 NLRB 1429, 1432 at
fn. 4 (1958). The Respondent presented no evidence that would
render a unit of its janitorial employees inappropriate. The
precedent cited in the Respondent’s brief is inapposite. In Sears
Roebuck & Co., 152 NLRB 45 (1965), the Board found an
overall warehouse unit appropriate, noting the integration of
function among the various classifications of warehouse em-
ployees. In this case, there is no integration. Employees work in
their assigned buildings and areas, the very assignments that
were the predicate for the Respondent’s hiring decisions. In
Ochsner Clinic, 192 NLRB 1059 (1971), the Board found a
unit of radiological technicians appropriate. The language
quoted in the Respondent’s brief is from Chairman Miller’s
dissent. International Offset Corp., 210 NLRB 854 (1974),
involved an economically motivated termination of operations
after which the alleged successor did not hire a majority of the
predecessor’s employees.
The Respondent has cited no case holding that its decision to
subcontract certain work previously performed by the predeces-
sor provides a basis for depriving its employees of their collec-
tive bargaining representative. “[I]t is well established that the
bargaining obligations attendant to a finding of successorship
are not defeated by the mere fact that only a portion of the for-
mer union-represented operation is subject to a sale or transfer
. . . so long as the unit employees . . . constitute a separate ap-
propriate unit and comprise a majority of the unit. . . .” Pa-
ramus Ford, 351 NLRB 1019, 1023 (2007), citing M.S. Man-
agement Associates, 325 NLRB 1154, 1155 (1998). A single-
employer unit of full-time and regular part-time employees of
TCB performing cleaning, janitorial, custodial and housekeep-
ing employees at the Nova campuses constitutes a separate
appropriate unit. The Respondent, by failing and refusing to
recognize and bargain with the Union, violated Section 8(a)(5)
of the Act.
CONCLUSION OF LAW
By failing and refusing to recognize and bargain with Ser-
vice Employees International Union, Local 32BJ, the Respon-
dent has engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and (5) and Section 2(6)
and (7) of the Act.
REMEDY
Having failed and refused to recognize and bargain with Ser-
vice Employees International Union, Local 32BJ, the Respon-
dent must recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the employees in
the appropriate unit and, if an understanding is reached, em-
body that understanding in a signed agreement.
The Respondent must also post an appropriate notice. Coun-
sel for the General Counsel requests that the notice be posted in
English, Spanish, and Haitian Creole. I concur. As already
noted, testimony herein was elicited through both a Spanish and
Haitian Creole interpreter.
[Recommended Order omitted from publication.]