Diamond Properties

National Labor Relations Board - Administrative Judge Opinions

May 11, 2006

02-CA-036783 (N.L.R.B. May. 11, 2006)

JD(NY)–20–06
New York, NY

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE

DIAMOND PROPERTIES, as successor to
COLIN SERVICE SYSTEMS, INC.

and Case No. 2-CA-36783

LOCAL 32BJ, SEIU

Benjamin W. Green, Esq., for the General Counsel.
Kevin M. Doherty, Esq., of Joel Greenwald & Associates, P.C.,
New City, NY, for the Respondent.
Lyle D. Rowen, Esq., for the Charging Party.

DECISION

Statement of the Case

Steven Fish, Administrative Law Judge. Pursuant to charges and amended charges filed
by Local 32BJ, SEIU, (the Union or Local 32BJ) the Director for Region 2 issued a Complaint
and Notice of Hearing on August 31, 2005, alleging that Diamond Properties, as successor to
Colin’s Services Systems Inc., herein called Respondent, has violated Sections 8(a)(1) and (5)
of the Act, by failing and refusing to recognize the Union as the successor to Colin Service
Systems, Inc. (Colin), and by making unilateral changes in working conditions, without
bargaining with the Union.

The trial with respect to the allegations raised by said complaint was held before me in
New York, N.Y., on February 13 and 14, 2005.

On March 17, 2005 Counsel for the General Counsel filed a motion to amend the
Complaint, which was not opposed by Respondent, and which Motion is hereby granted.

On the entire record, including my observation of the demeanor of the witnesses, as well
as my credibility determinations based on the weight of the respective evidence, established
and admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a
whole, and after considering the briefs filed by the General Counsel, the Respondent, and the
Charging Party, I make the following:

Findings of Fact

I. Jurisdiction and Labor Organization

The Respondent, Diamond Properties is a New York corporation with offices and places
of business located at 400 and 465 Columbus Avenue, Valhalla, New York, and at locations
throughout Westchester County, where it is engaged in owning and operating commercial

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
2

buildings in New York.

Respondent admits, and I so find, that it is an employer engaged in commerce within the
meaning of Section 2(2), (6) and (7) of the Act.

It is also admitted and I so find, that the Union is a labor organization within the meaning
of Section 2(5) of the Act.

II. Facts

Respondent owns and manages commercial properties in Westchester County, New
York City, and Cincinnati, Ohio. In Westchester County, Respondent owns 17-18 properties, of
which six are commercial office buildings, with the remainder consisting of vacant land
construction/renovation properties and “commercial real estate flex properties”, which are
essentially warehouse buildings.

Its main office of operations is located in an office building, at 400 Columbus Avenue,
Valhalla, New York, which it has owned since 1993.

Directly across the street from Respondent’s 400 Columbus location is another
commercial office building, at 465 Columbus Avenue. This building had been owned by Louis
Dreyfus. The cleaning services at 465 Columbus Avenue had been subcontracted by Dreyfus
to Colin Service Systems, Inc., herein called Colin.

Colin was a contractor for numerous buildings throughout the tri-state area locations.
The Union has been the collective bargaining representative for Colin’s employees at 465
Columbus for at least 10 years. Colin was a signatory to the 2001 Hudson Valley Contractor’s
Agreement, which is an area wide commercial cleaning contract covering office cleaning in
Westchester, Rockland and other counties in New York state.1 On April 5, 2002, Colin and the
Union entered into a rider for 465 Columbus Avenue, which states that all terms of the above
described Agreement shall remain in effect, except as modified. The modifications agreed to
involve areas such as vacation, health insurance and pension. This Union, as a result of the
collective bargaining agreement described above, represents according to the testimony of
Union officials, Dennis Johnston and Joel Rojas, employees who clean office buildings
employed by Colin. They testified further that the Union has represented handymen and or
maintenance employees in residential buildings, but not generally in commercial buildings, at
least in Westchester County.

In this regard however, the Union’s website reflects that the Union represented at the
World Trade Center employees who perform landscaping and outside maintenance work.
Further, George Palmiero, Respondent’s Director of Operations, testified that he was formerly
employed by a company named Mack Cali Realty Corp., with headquarters in Cramford, New
Jersey. Palmiero testified that Mack Cali owned and operated a building located at 50 Main
Street, White Plains, New York, and that the Union represented a handyman employed at that
facility.2
Continued
1 The actual recognition clause states that the contract applies to all service employees
employed in a number of counties including Westchester County. The contract was effective
12/11/01 to 12/31/04.
2 White Plains, New York, is located in Westchester County. Palmiero did not testify as to
what contract covered the employees of Mack Cali, or whether Mack Cali was covered by the

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
3
_________________________
At 465 Columbus Avenue, Colin employed six employees, five of whom worked part-
time, from 6:00 P.M. to 10:00 P.M., Monday through Friday,3 and one employee Johnny
Arguello, who was a full time employee working from 6:30 A.M., to 2:30 P.M. The five part-time
night cleaners performed unskilled cleaning functions, such as vacuuming, sweeping, mopping,
waxing, dusting, and removing garbage. They were generally assigned to clean the same
specific offices each day. One of the employees, Panama was considered a “working
foreman,”4 who received a slightly higher wage, and would be in “charge” of the night crew. The
day porter, or day cleaner, Arguello, was responsible for patrolling the bathrooms to make sure
they are clean and supplied with paper, soap or other items. He also would clean up spills,
sweep the stairwells and check the common areas such as the lobby the shaft ways. He would
not generally go into the offices, since the tenants would be there during the day. The five night
cleaners worked part-time, and under the Union contract received no health or pension benefits.
The one day full-time employee of Colin, Arguello, should have received benefits under the
contract between Colin and the Union. The record does not reflect whether or not Arguello
received such benefits.

Colin did not have an on site supervisor or any other official stationed at the 465
Columbus location.

The prior owner of the building employed an employee named Norman Haug as a
maintenance employee. He would handle tenant complaints, check the thermostat, replace light
bulbs, and make minor repairs. Haug was not a member of the unit represented by the Union.
Haug worked as a full-time employee during the day at 465 Columbus Avenue, while employed
by Dreyfus.

Respondent purchased the building at 465 Columbus Avenue from Dreyfus in June of
2004. As part of that purchase, Respondent assumed the contracts of its predecessor,
including Dreyfus’ contract for cleaning services with Colin.

From June of 2004, through the first week of September 2004, Colin continued to
provide cleaning services at 465 Columbus, using the same six employees (5 part-time and 1
full-time), that Colin had been using to clean the building when it was owned by Dreyfus.
Respondent hired Norman Haug who had been directly employed by Dreyfus, as a maintenance
employee. Haug performed essentially the same functions for Respondent, as he did for
Dreyfus, consisting of minor repairs, preventive maintenance, and responding to tenant
complaints about air conditioning, and heating, and replacing light bulbs.

In August of 2004, Colin requested a substantial increase in its price, and Respondent
decided it would not pay such an increase, and cancelled its month to month contract with Colin,
effective August 31, 2004. Respondent put the contract for cleaning services out for bid, and
subsequently signed a contract with Skyscraper, Inc., to perform cleaning services, scheduled
to start on September 8, 2004.

On or about September 7, 2004 Johnston telephoned Palmiero. Johnston himself,
introduced as a representative of the Union, and informed Palmiero that the Union represented
the employees at the building employed by Colin. Johnston added that he had heard that
same Association contract that Colin was a party to with the Union.
3 These employees were Jaime Panama, Augusta Iynfante, Jose Colorado, Alicia Melendez
and Rosa Zhinin.
4 In that regard Panama would “check” the work of the night cleaners.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
4

Respondent had contracted with Skyscraper to perform cleaning services at the building, and
urged Respondent not to use Skyscraper since Skyscraper was non-union, and the Union had a
dispute with Skyscraper. Johnston also told Palmiero that if Respondent used Skyscraper,
there would be “problems” at the building. Johnston suggested that Respondent either bring in
a Union contractor or a contractor that pays area standard wages and benefits. Johnston also
made an alternative suggestion that Respondent put the employees directly on Respondent’s
payroll, until Respondent decided whether it wished to bring in another contractor or keep them
on Respondent’s payroll. Palmiero agreed to Johnston’s latter suggestion, and agreed to meet
with Johnston on September 9, to discuss the possibility of Respondent signing a contract with
the Union.

After this phone conversation, Johnston informed Joel Rojas, the Union delegate for the
building about his discussion with Palmiero, and instructed him to inform the employees to
report to work, and that the Union was in discussion with Respondent concerning the
employees’ status. Rojas complied with Johnston’s instructions.

After the call between Johnston and Palmiero, Respondent cancelled its contract with
Skyscraper, and decided to put the former Colin employees on its payroll. Respondent also
decided, in view of the uncertainty of the situation, that it would classify the employees as
“independent contractors,” pay them by check made out to cash, without any deductions made
from their salaries.

On September 8, 2004, the former Colin employees reported to work, and were informed
by Rojas that they should do their jobs as before, and that the Union is trying to “solve” the
situation with Respondent.5

Ozzie Suarez, Respondent’s Operations Manager, informed the employees that they
would be working for Respondent, that they would be performing the same work as they have
been doing while employed by Colin, at the same salary. Suarez did not inform the employees
that Respondent considered them to be “independent contractors.” Suarez provided the
employees with the cleaning supplies and equipment that they needed, which had previously
been supplied by Colin.

On September 9, Johnston met with Palmiero at Respondent’s office at 465 Columbus.
Johnston informed Palmiero that the Union had represented the employees at the site, and that
as a successor employer, the Union wanted Respondent to sign an agreement with the Union,
or if Respondent wished, negotiate an agreement with the Union. Johnston furnished Palmiero
with a copy of an Agreement between the Union and the Hudson Valley Contractors Association
which ran from December 1, 2001 to December 31, 2004. Johnston and Palmiero discussed a
number of the provisions in that agreement, such as wages, health benefits, pension, legal and
training funds. Palmiero responded that he would have to talk to his boss about the Union’s
proposals. Palmiero added that Respondent was considering combining the cleaning work with
another property (400 Columbus Avenue), and change employees to full-time, with company
benefits. Johnston replied that the Union could come up with an agreement covering both
buildings.

Johnston concluded the meeting by informing Palmiero that the Union would get back to
5 The employees had been previously informed by representatives of Colin, that a new
contractor was coming in, and suggested that they report to work and talk to the new contractor
about continuing to work at the building since the employees already knew how to do the work.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
5

Respondent and set up another meeting, after Palmiero consulted with his boss. Palmiero
agreed at the meeting to retain the employees at their same economic terms and conditions, in
place under the Colin contract. Palmiero did not tell Johnston that Respondent considered the
employees to be independent contractors.

Johnston did not immediately schedule another meeting with Respondent, because the
Union was in the process of negotiating a successor contract to the Master Agreement, which
was scheduled to expire on 12/31/04. Johnston preferred to have a signed agreement to bring
back to Respondent if possible.

Between September 8 and December 31, Respondent employed all six former Colin
employees as its entire complement of cleaners at 465 Columbus Avenue. Indeed, Palmiero
testified that “he kept everything pretty much status quo as much as possible” and “as normal as
possible for them.”

In that regard, the employees received the same wages, worked at the same location,
same hours and cleaning the same offices, using the same type of equipment as they had when
they worked for Colin. They have received no benefits,6 while Respondent did have a policy of
centralized benefits that it provides to all its employees at its properties, 7

Although Suarez was the Operations Manager of Respondent, he was not stationed at
465 Columbus, and would come to the building once a week to bring supplies or hand out
paychecks. If there was a complaint from a tenant, Suarez would occasionally go to the
building, check out the complaint, and if necessary instruct an employee to rectify the problem.
Panama, who as noted above was the “lead” cleaner, while the employees were employed by
Colin, continued to serve in that capacity and oversaw and directed employees on a daily basis.

During this period of time, Respondent employed no cleaners, other than the six former
Colin employees, who worked exclusively at 465 Columbus Avenue. As noted above
Respondent owned 17-18 properties. However most of these properties are warehouses and
small facilities, where the tenants perform their own cleaning. Respondent owns six properties
located in Westchester County. In addition to 465 Columbus Avenue, it owned a building at 400
Columbus Avenue, Valhalla, (across the street from 465 Columbus), and four other buildings
located in Bedford, Tarrytown and Mt. Kisco, New York. The cleaning services for these other
properties were performed by several different contractors, including All-Service Contractors at
the 400 Columbus Avenue location.

While the record reflects that all six of Respondent’s buildings are located in
Westchester County, the locations of these other facilities, as well as their distances from one
another has not been established. However an examination of records introduced into
evidence, reveals that Respondent owns two buildings in Bedford, New York, one in Tarrytown,
New York, and one in Mt. Kisco, New York. While no evidence was presented concerning the
distances between these facilities or the size of Westchester County, I note that a search on the
6 As noted, since five of the six employees were part-time, they did not receive health or
pension benefits under the Union contract, when they were employed by Colin. As to the full-
time employee, who worked during the day, the record is not clear as to whether he received
Union benefits while employed at Colin.
7 These benefits include health benefits, disability coverage, a 401(K) plan with an employer
match up to 3% of an employee’s contribution, and educational assistance.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
6

Internet reveals that Westchester County covers an area of 457 square miles.8

At each of Respondent’s other Westchester buildings, in addition to using contractors to
perform cleaning services, it also employed General Maintenance employees in these buildings.
At 400 Columbus Avenue, Respondent employed Edward Sosa in that capacity. The other
maintenance employees were Frank Munno, Gus Efthalitsides, and Carlos Portillo. The record
reveals that Portillo splits his time at Respondent’s two buildings located next door to each other
in South Bedford, New York. Munno, according to Respondent’s evidence works at locations at
115 Wall Street and Tompkins Avenue, and Efthalitsides works at a building at 828 S.
Broadway.9

These maintenance employees perform essentially the same work as performed by
Haug at 465 Columbus Avenue, i.e. minor repairs, changing light bulbs and responding to
complaints about heat and air-conditioning, and preventive maintenance.

Testimony was adduced from witnesses of Respondent that the maintenance employees
are occasionally asked to cover for maintenance employees at other buildings in an emergency
or if someone is out. In that regard, Respondent’s records reveal that from June 2004 through
January 2005, Sosa worked at 465 Columbus Avenue for one week, between December 19 and
December 25. Otherwise, Respondent’s records do not show that any other general
maintenance employee worked at 465 Columbus Avenue, nor that Haug, worked at any building
other than 465 Columbus Avenue.

Both Haug and Sosa worked the day shift, from 8:00 a.m. to 4:30 p.m. Haug earned
$16.03 per hour in 2004, and Sosa’s salary was $15.00 per hour. The salary of the cleaners
ranged from $8.25 per hour for the night cleaners, $9.25 per hour for lead cleaner Jaime
Panama, to $10.00 per hour for Arguello, the full-time day porter.

Respondent also employed employee Astin Martin, also listed as a general maintenance
employee. Martin reports to work at Respondent’s 400 Columbus Avenue location. Martin
spends an hour or two each morning and afternoon, running a shuttle service driving tenants to
and from the train station to 400 Columbus Avenue. The remainder of his day is spent
delivering materials, such as air-conditioning filters, cleaning supplies, signs for Respondent’s
properties and materials for Respondent’s construction area to all of Respondent’s Westchester
buildings. Martin’s salary was $12.50 per hour in 2004.

Respondent also employed an individual named James De Santos, classified as a
Mechanical Maintenance employee. De Santo reports to work at 400 Columbus Avenue, and
then is dispatched to all of Respondent’s buildings where he performs skilled HVAC repairs and
maintenance as needed. De Santos was certified by the National Association of Power
Engineers, completed courses in air-conditioning and welding and had extensive prior
experience in the installation and repair of air-conditioners, heating systems and other
commercial equipment. More specifically, De Santos would do preventive maintenance by
checking and replacing belts, replacing filters and general maintenance of air-conditioners,
approximately every six months at each facility. If repairs are needed in these areas, he would
8 Excerpt from “Westchester County the past 100 years” published by the Westchester
Historical Society.
9 The record does not identify the town where these buildings are located. Presumably they
include Mt. Kisco and Tarrytown, where other evidence reflects that Respondent owns
buildings.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
7

be dispatched to that location. De Santos earned $19.50 per hour in 2004.

Suarez testified that except for emergencies, the maintenance employees do not use
cleaning products in the course of their work, but use hand tools, drills and other kinds of
equipment, to perform services and maintenance function. There is no record evidence of any
contact, employee interchange or functional integration between cleaning and maintenance
employees. Indeed, most of the unit, (5 of the 6 employees) work at night, after the
maintenance employees have left. One of the unit employees, Iynfante credibly testified that
she never saw any employees other then cleaners working at 465 Columbus Avenue, and was
not aware that Respondent employed any other employees.

In early 2004, Respondent began employing landscapers, which work had previously
been performed by subcontractors. Initially, Respondent transferred two employees Jose
Figueroa and Oscar Aguillar, from its construction division10 to perform landscaping duties, in
March of 2004, when the landscaping season begins. It also hired Manny Colignassi and
Miguel Chavez to perform this work. Colignassi was replaced after a short time by Jose Alberto
Figueroa. This crew of four employees performed landscaping work for the landscaping
season, which lasts until November. The employees report to Respondent’s location at 141
Tompkins,11 and are dispatched to Respondent’s six Westchester buildings to work on the
grounds of these buildings. Their job functions include seeding, cutting lawns, planting and
fertilizing flowers in landscaping beds, cut and remove trees and debris, clean up leaves, sticks,
broken branches, as well as outside cleaning of the building. Occasionally these landscapers
are assigned to clean windows and empty outdoor garbage cans at some locations, and do
miscellaneous painting in the hallways, interior planting and deliver materials.

In the winter months the landscapers perform snow removal and salting the sidewalks.
Since snow removal often requires more than four employees, Respondent supplements snow
removal with up to 15 people from its construction employees.

At the end of the landscaping season, in November of 2004, Manuel Figueroa and
Aguilar returned to the construction crew, and I did not choose to return to landscaping for the
2005 season. They were replaced in 2005 by Carlos Herrera and Felix Perez.

The landscapers all worked on the day shift, from 7:00 a.m. to 3:30 p.m., which does not
overlap with the vast majority of cleaners employed at 465 Columbus, who as noted work at
night. There is no evidence of any contact, employee integration or interchange, between
landscaping employees and cleaners. According to Suarez, the landscapers generally will work
at 465 Columbus Avenue on the average of a few hours a week. The landscapers other than
Alberto Figueroa earned $10.00 per hour. Alberto Figueroa earned $15.00 per hour in 2004.

In November of 2004, Respondent decided not to renew its contract with All Services to
perform cleaning at 400 Columbus Avenue. Its intention was to have a staff of full-time
employees perform the work at both buildings. At the time All Service also employed five part
time night cleaners and one full-time day porter, at 400 Columbus Avenue. Respondent verbally
inquired of the All Service employees working at 400 Columbus to see if they would be
interested in full-time employment with Respondent, plus benefits. The All Service employees
were not interested in the offer, since they had other part-time jobs. However, Respondent’s
10 Respondent employs a number of construction employees, who perform renovation work
at its buildings. There is no contention that these employees should be included in the unit.
11 The record does not reflect in what city this building is located.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
8
employees at 465 Columbus Avenue were interested in full-time positions, plus benefits, and
Respondent decided to offer such positions to these employees. Respondent sent letters to all
six cleaners, offering them jobs as full time cleaners, cleaning offices at both buildings with
various benefits, and a raise of 50 cents per hour for each employee. Although the letter to
Johnny Arguello, who had been employed as the day porter, offered him a position as “night
cleaner”, this was an error, and in fact Arguello retained his position as day porter, but with a 50
cents raise plus benefits. All six employees accepted the offer. Although the letter was dated
November 15, 2004, it did not reflect when employees would start as full-time employees. In
fact the employees began the new schedule on January 1, 2005, although the employees did
receive a Christmas bonus of $100.00 in December of 2004.

On November 22, 2004, Johnston telephoned Palmiero, to follow up on their prior
discussions. Palmiero expressed surprise in hearing from Johnston, and informed Johnston
that Respondent had made job offers to the employees who had accepted full-time positions to
cover both 400 and 465 Columbus Avenue. Johnston replied that Respondent or a successor
employer, was not entitled to make unilateral changes and deal directly with employees, since
any changes in terms and conditions must be done through the Union. Palmiero disagreed and
asserted that Respondent had no obligation to deal with or consult the Union, before making the
changes that he mentioned.

Johnston then sent a letter to Palmiero, reiterating the Union’s position and summarizing
their prior conversations, as well as insisting that Respondent bargain with the Union as the
representative of its employees. Respondent responded with a letter from its attorney, dated
January 4, 2005, denying any obligation to recognize the Union, and asking for the basis for the
Union’s claim that Respondent is so obligated.

The Union responded by letter from its Associate General Counsel, dated January 11,
2005. It reads as follows:

January 11, 2005

Jon A. Dorf, Esq.
Dorf, Karlen & Stolzar, LLP
740 West Boston Post Road, Suite 304
Mamaroneck, NY 10543-3345

Re: Diamond Properties
465 Columbus Avenue, Valhalla, NY

Dear Mr. Dorf:

I am in receipt of your letter to Denis Johnston of Local 32BJ, dated January 4, 2005.
Your position that Diamond Properties has o legal obligation to Local 32BJ is incorrect.

When Diamond Properties hired a majority of the incumbent building service employees
of Colin Service Systems in September 2004, it became the successor employer to those
employees and immediately assumed the legal obligation to recognize and bargain with
Local 32J as the employees’ bargaining representative. Fall River Dyeing and Finishing
Corp., v. NLRB, 482 U.S. 27, 36-37 (1987), citing NLRB v. Burns Int’l Security Serv., Inc.,
406 U.S. 272 (1972); North Hills Office Services, 342 NLRB No. 25, slip op. at 37-40
(2004). Indeed, it appears that Diamond Properties initially complied with its legal
obligations in this regard when it corresponded and met with Local 32BJ representatives for

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
9

the purpose of negotiating a collective bargaining agreement for the employees working at
this building. However, your recent letter signals a departure from that lawful conduct.

The Union restates its request (from Denis Johnston’s letter dated December 8,
2004) to meet and bargain a labor contract with Diamond Properties for the cleaners
working at 400 and 465 Columbus Avenue.

Local 32BJ has historically enjoyed a positive working relationship with Diamond
Properties and sincerely hopes that this dispute will not set a new course for that
relationship. I encourage you to review the legal authority cited in this letter and contact me
to discuss this.

If I do not hear from you within 10 days of this letter, I will assume that Diamond
Properties is refusing to recognize and bargain with Local 32BJ. If that is the case, the
Union will have no other option than to initiate unfair labor practice proceedings against
Diamond Properties at Region 2 of the National Labor Relations Board.

Thank you for your attention in this matter. I look forward to hearing from you.
Please contact me at 212-388-3452 to discuss.

Very truly yours,
Lyle D. Rowen
Associate General Counsel

cc: Kurt Westby, District 10
Denis Johnston, District 10

Neither Respondent nor its attorney responded to this letter, and never agreed to
recognize or bargain with the Union.

On January 1, 2005 each employee received a 50 cent raise, and various company
benefits. The hours of the night cleaners (except for Panama) were changed from four to eight.
(6:00 p.m. to 10:00 p.m., to 5:30 p.m. to 1:30 a.m.) The employees cleaned four hours in each
building. The one day porter continued working the same hours, but received the raise and the
benefits.

On January 1, 2005, Respondent hired an additional cleaner, Humberto Aguilar. He
replaced Panama as the “lead” cleaner and transmitted instructions from Respondent to the
employees and checked their work, as Panama had done previously. Panama never actually
worked as a full-time employee. He asked Respondent for permission to continue working part-
time because he had another job. Panama worked part-time for Respondent until February 25,
2005 when he resigned. Rosa Zhinin resigned on March 25, 2005. Respondent hired Rudis
Verdin and Leonel Nalasco to replace the employees who resigned.

On 3/30/05, Respondent’s employees had a meeting, and a petition was circulated and
signed by five employees.12

The petition read that the employees who work at 400 to 465 Columbus Avenue do not
want the Union, Local 32BJ. Iynfante testified that the employees agreed that they were getting
12 The five employees were Aguilar, Mendez, Iynfante, Verdin and Nalasco.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
10

benefits from the company so they do not need a Union.

III. Analysis

A. Was Respondent a Successor to Colin as of September 8, 2004?

The test for determining successorship under Burns13 is summarized as follows:

An employer, generally, succeeds to the collective bargaining obligation of a
predecessor if a majority of its employees, consisting of a “substantial and representative
complement,” in an appropriate unit are former employees of the predecessor and if the
similarities between the two operations, manifest a ‘substantial continuity’ between the
enterprises.” Fall River Dyeing Corp. v. NLRB, 428 U.S. 27, 41-43 (1987).

I find the evidence clear and convincing that the criteria described in Fall River have
been satisfied here. Van Lear Equipment, 336 NLRB 1059, 1063-1064 (2001).

Thus on September 8, 2004, Respondent hired the entire bargaining unit consisting of 6
employees, who had been represented by the Union, when the employees were employed by
Colin, who previously performed cleaning services at 465 Columbus Avenue.

Respondent raised an affirmative defense in its answer, that from September 8, 2004
through January 1, 2005, former Colin employees were “independent contractors,” and that
therefore the critical date for measuring successorship status is January 1, 2005, when
Respondent admittedly hired the employees.

Notably, Respondent devoted no pages in its brief, to this assertion that the employees
were “independent contractors,” during this three month period. It therefore appears that
Respondent has abandoned that contention. However, since Respondent has not withdrawn
this assertion, it is necessary to consider it.

I find the contention totally without merit. Although Respondent paid the employees
without making any deductions, and did not provide them with company benefits, these facts fall
far short of establishing that they were independent contractors during this period. Community
Bus Lines, 341 NLRB #61 (2004); Houston Building Services Inc., 296 NLRB 808 (1989).

I note that the employees were never informed by Respondent that they were
considered to be “independent contractors.” In a letter to the Union dated January 9, 2005,
Respondent’s attorney stated that Respondent had “hired” unit employees when an agreement
could not be reached with Colin to continue cleaning the building. The cleaners were directed
by Respondent to continue working as they had under Colin, and no changes were made in the
time or manner in which they performed their jobs. The cleaners did not submit invoices to
Respondent for the work performed or fees owed, but were paid a regular hourly wage dictated
by Respondent without any negotiation or formal contract. Respondent provided all equipment
and supplies used by the cleaners, and was responsible for all managerial and other
entrepreneurial functions. The cleaners were unskilled employees who did not operate an
independent business, did not perform work for anyone else, did not employ their own
employees, or have any entrepreneurial opportunity for gain or for loss.

13 NLRB v. Burns Security Services, 406 U.S. 222 (1972).

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
11
Accordingly, I conclude that the cleaners were not independent contractors, but statutory
employees once they were hired by Respondent on September 8, 2004. Stanford Taxi, 332
NLRB 1372, 1373 (2000); Community Bus, supra, Houston Building, supra; Roadway Package
System, 326 NLRB 842, 848-855 (1998).

Respondent also argues that the appropriate date for measuring successorship was
January 1, 2005, the date that Respondent’s decision to change the employees’ status from part
time to full time, and to provide them with company benefits, plus a raise was implemented. I
disagree. In assessing issues of majority status, appropriateness of the unit, and continuity of
the enterprise, the critical date for analyzing, these issues, is the date that the employees were
hired. Operational changes made subsequent to the hiring, whether found to be violative of the
Act as a unilateral change or not, are not considered. Ready Mix USA, 340 NLRB 946, 956
(2003); GFS Building Maintenance Co., 330 NLRB 747, 752 (2000); Banknote of America, 315
NLRB 1041, 1043, enfd, 84 F.3d 637, 649 (2nd Cir. 1996); Holly Farms Co., 311 NLRB 273, 277,
enfd. 48 F.3d 1364, 1366 (4th Cir. 1995); See also Siemens Building Technologies Inc., 345
NLRB No. 91 slip op p. 2 (2005).

Therefore, I conclude, contrary to Respondent’s argument, that the critical dates for
assessing whether Respondent unlawfully refused to recognize and bargain with the Union, as
successor employer to Colin, are September 8 and 9, 2004, the date that employees were hired
and the date of the Union’s demand respectively.

As of these dates, Respondent hired the six former Colin employees, and commenced
performing cleaning services “in house” with its own employees. Respondent argues that
General Counsel has not established the requisite “substantial continuity” between the two
operations, because Respondent did not purchase any assets from Colin, and because
Respondent is engaged in a totally different business then Colin. (Managing and owning
buildings as opposed to running a cleaning contractor business.) These contentions have no
merit, and are contrary to well settled Board and Court precedent.

With respect to the purchase of assets, the seminal successorship case of Burns, supra,
involved a successorship finding where no purchase of any assets of the predecessor was
involved. (One guard contractor replaced another guard service.) Subsequent cases have held
similarly. GFS Building, supra, at 751, Sierra Realty Co., 317 NLRB 832, 836 fn. 16, enf. denied
on other grounds 82 F.3d 496 (D.C. Cir. 1996).

While it is true as Respondent asserts, that it is engaged in a different business than
Colin, that fact is inconsequential. As the Supreme Court observed in Fall River, supra, at 43,
and has been emphasized in numerous cases since, continuity of the enterprise must be
assessed primarily from the perspective of the employee, and the question is whether “those
employees who have been retained will…view their job situation as essentially unaltered.” Fall
River, supra at 43 cited in Sierra Realty, supra, at 835. See also Van Lear Equipment, supra. at
1064; Ready Mix, supra at 455; Holly Farms v. NLRB, supra, 487 at F.3d at 1367.

Here as in Sierra Realty, supra, from the perspective of the six employees, they would
have perceived Respondent as an entity which simply displaced Colin as “a cleaning and
maintenance contractor and, as such would have viewed their job situation as essentially
unaltered in light of the undisputed evidence that Respondent effectuated no significant change
in the nature of the cleaning operation after the takeover.” Sierra Realty, supra, at 835. See
also, Saks Fifth Avenue, 247 NLRB 1047 (1980), enfd. in relevant part, 634 F.2d 681 (2nd Cir
1985), where the Board applied the successorship doctrine to a situation in which an employer,
like the Respondent ceased purchasing a service from a company, and provided the service

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
12

with its own employees.14

In this connection, I note the testimony of Palmiero that after Colin’s contract was
terminated and the employees were hired by Respondent that he attempted to “maintain the
status quo,” and “keep things as normal as possible for (Colin) cleaners.” Unit employees were
directed to continue working exactly as they had under Colin, with the same pay. Although
Suarez was designated the manager of the Unit employees, the cleaners required little day to
day supervision by him, and continued to work under the daily direction of Panama. Indeed the
record reflects that Suarez would generally come to the building once a week to bring supplies
or hand out paychecks.

In any event, “continuity” is not destroyed or successorship defeated because
Respondent did not hire Colin’s supervisor. GFS Building, supra at 752, Sierra Realty, supra at
835. See also, Boston-Needham Industrial Cleaning Co., 216 NLRB 26, 27 (1975), enfd. 526
F.2d 74 (1st Cir. 1975) (Where “other factors indicate that essentially, the same operation has
been continued,” the fact that there may not be “substantial continuity in employment of the
predecessor’s supervisory staff” is not “of overriding importance.”)

Therefore I conclude that the evidence is overwhelming that as of September 8 and 9,
2004, Respondent continued Colin’s business is substantially unchanged form, so that this
prong of the successorship test has been met.

The other necessary prong in determining successorship, is whether a majority of the
Respondent’s employees in an appropriate unit were former employees of Colin. These issues
are interrelated here, since Respondent vigorously contests the appropriateness of the unit
confined to cleaner employees employed at 465 Columbus Avenue. Respondent asserts that
the historical unit is not appropriate, and the appropriate unit must include additional employees
employed in Respondent’s property maintenance division employed at its six locations in
Westchester County. P. S. Eliott Services, Inc., 300 NLRB 1161, 1162 (1990); Nova Services,
213 NLRB 95, 46-47 (1974). However, it is well established that single location units are
presumptively appropriate. Van Lear Equipment, supra at 1003; New Britain Transportation
Co., 330 NLRB 397 (1977). This presumption is particularly strong where, as here, the
employees have been historically represented in a single-location unit. Van Lear Equipment,
supra; Montauk Bus Co., 324 NLRB 1128, 1135 (1997). The Board places a heavy burden on a
party attempting to show that historical units are no longer appropriate. Siemens Building,
supra at p.1; Ready Mix, supra, at 947; Banknote of America, supra at 1043. Established units
will not be disturbed unless they are repugnant to the Act’s policies. Ready Mix, supra;
Banknote of America, supra, Fraser & Johnson,189 NLRB 142, 151 fn, 50 (1971), enf, granted
in relevant part and denied in part on other grounds 469 F.2d, 1259 (4th Cir. 1972). “Compelling
Circumstances” must be shown before the Board will disturb a historical unit. Banknote of
America, supra citing Columbia Broadcasting System, 214 NLRB 637, 642-643 (1974).

Respondent’s evidence falls far short of meeting its heavy burden of proving that the
historical, single-facility unit is not appropriate. With respect to the employee classifications, the
14 Respondent argues that Sierra Realty, supra was denied enforcement by the circuit.
However, the enforcement was denied on other grounds, as the Court disagreed with the
Board’s 8(a)(3) findings, which were a prerequisite for the 8(a)(5) successorship decision of the
Board. The Court expressed no views on the Board’s finding that successorship is appropriate
where a building owner hired as its own employees, cleaners who had been employed by a
contractor.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
13

maintenance employees and landscapers, whom Respondent argues should be included in the
unit, do not share a community of interest with the cleaners, sufficient to destroy the historical
unit. The cleaners have no contact, interchange of functional integration with landscapers or
maintenance employees. The work location, hours, employment status, supervision, job
functions and skills, and wages and benefits of these classifications differ significantly from that
of the cleaners. See, Mayfield Holiday Inn, 335 NLRB 38, 38-40 (2001) (Laundry workers and
inspectors appropriately excluded from historic unit of housekeepers.)

The housecleaners, who represent five of the six employees in the unit, worked on the
night shift, and arrived at work after the day shift maintenance and landscaping employees have
left. The landscapers, and Martin, the “run around” employee, perform most of their work
outside the buildings, while cleaners work inside. De Santos, Martin and the landscapers
worked at all six of Respondent’s buildings and spent little time at 465 Columbus Avenue, while
the maintenance employees, other than Haug, spent no time at 465 Columbus Avenue at all.

Further, the unit employees perform different functions, use different equipment, and are
less skilled than the employees in the other classifications. Aside from the cleaners, only Haug
works regularly inside 465 Columbus Avenue, while De Santos works there on occasion. De
Santos is a skilled HVAC mechanic who performs repairs and maintenance on the heating and
air-conditioning systems at Respondent’s buildings, and Haug and the other maintenance
employees are responsible for performing other maintenance repairs. The landscapers do very
little work inside Respondent’s buildings, work primarily outside the buildings performing
functions particular to ground care, using different equipment and skills and performing different
work then the cleaners. They also spend only a few hours a week at 465 Columbus Avenue,
and then only during the landscaping season, or when it is necessary to remove snow at the
building. The house cleaners, and the day porter, unlike Respondent’s other employees,
perform unskilled cleaning functions inside the building. Finally, when the employees were
hired on September 8, 2004, they did not share common wages, benefits hours or work location
with maintenance or landscaping employees. The cleaners who predominately worked part-
time night schedules without company benefits for significantly less pay than the other
employees are not aligned in their interests with other classifications. Thus the historical unit
confined to cleaners is appropriate. See Mayfield Holiday Inn, supra.

Respondent has also failed to overcome the presumption of appropriateness of the
single facility unit. The unit employees worked exclusively at 465 Columbus Avenue. There is
no evidence of any interchange between unit employees and employees at other locations.
Indeed, the cleaning functions at Respondent’s 5 other buildings were performed by outside
contractors at the time of the hiring of the unit employees and the Union’s demand. Moreover,
as noted above, Respondent did not provide its uniform company benefits to the cleaners,
located at 465 Columbus Avenue.15

Respondent argues that the six facilities are: ”fairly close together,” all located within the
same county. However, Respondent adduced no evidence as the precise distances between its
facilities. Since it is Respondent’s burden to overcome the presumption that a single facility is
appropriate, its failure to do so, constitutes a substantial defect in its burden of proof. I note that
15 While Respondent argues that it did eventually provide uniform company benefits to the
unit employees, this was not done until January 1, 2005, three months after it hired the
employees. As I have detailed above, this fact cannot be considered in assessing the
appropriate unit issue, since the bargaining obligation of Respondent attached on September 9,
2004. Siemens Building, supra; American Bank Corp., supra; Holly Farms, supra.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
14

I have cited above information from the Internet, which reflects that Westchester County
consists of 457 square miles. Thus Respondent has failed to establish that its buildings are
“fairly close together,” as it asserts.

Respondent places significant reliance on P.S. Eliott Services, supra and Nova Services,
supra, in support of its contention that the historical single-plant facility is not appropriate.
However, I find such reliance misplaced, and conclude that these cases are clearly
distinguishable from the case at hand. In P. S. Eliott Services, the Board found a historical
single facility unit to no longer be appropriate, after the alleged successor took over the cleaning
services at a building. The Board relied upon the facts that after the takeover, the Employer
implemented its uniform personnel policies and benefits to the new location, employees were
not hired to staff a particular jobsite but were hired based on the overall needs of the company,
employee interchange was frequent and regular, and the employees were supervised by area
supervisors who were in frequent contact with the sites under their supervision. None of these
facts are present here. The unit employees were not subject to Respondent’s uniform
personnel and benefits policies, the employees were hired to work solely at 465 Columbus
Avenue, and there is no evidence of frequent or regular interchange of unit employees between
buildings. While there is evidence of interchange involving landscaping and some maintenance
employees who work at more than one location, there is no evidence of interchange among
cleaners, contrary to P.S. Eliott, supra, where the employer assigned cleaners from its other
facilities to work at the building in question while there is evidence here of an area supervisor,
unlike P.S. Eliott, the evidence here does not disclose frequent contact by Suarez with 465
Columbus Avenue.16

Most significantly of all P.S. Eliott involved a contractor who took over a single location
and who had 90 accounts, employing 175 employees. Here Respondent is not a contractor,
and had no other employees performing cleaning work. While it did have five other buildings
where cleaning work was performed, it continued to utilize outside cleaning contractors to do
this work. Therefore, for the above reasons, P.S. Eliott Services is not dispositive, and does not
compel a finding that the single-unit unit at issues here is inappropriate. Van Lear Equipment,
supra at 1063; Ready Mix USA, supra at 954.

Nova Services, supra found no successorship based on a finding of no “substantial
continuity in the employing enterprise.” The ALJ, affirmed by the Board specifically did not rule
on the issue of whether the historical unit of janitorial work for one bank was appropriate. The
ALJ relied upon the facts that the Employer Respondent took over only a small part of the
bank’s janitorial services, at the bank’s main office, its operations center and at several of its
branches. Most of the bank’s janitorial work which had previously been performed by one
contractor, Sanitas who lost the contract, was taken over by another contractor “Allied,” and not
the Respondent Employer. Further the ALJ found that the bank work performed by the
Respondent-Employer was less than half of the Employer’s workload, since it serviced other
facilities in the immediate area of Worcester, Mass., where employees performed identical
janitorial work. Those facts are clearly significantly different from the instant case. Here,
Respondent, unlike the Employer in Nova Services, performed all of the cleaning work
previously performed by Colin, with its own employees. Further, Respondent did not have any
other employees performing cleaning work, other than the employees at 465 Columbus Avenue,
contrary to the Respondent Employer in Nova Services. Thus Nova Services provides no
support for Respondent’s contentions with respect to either “continuity of the enterprise” or the
16 As detailed above, the evidence discloses that generally Suarez would appear at the
building only once a week, to give out paychecks and bring materials.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
15

issue of appropriate unit. See Boston-Needham, supra at 28 fn. 22 distinguishing Nova
Services on similar grounds.

Respondent also cites a number of cases, such as Waste Management of Northwest,
331 NLRB 309 (2000); and Trane, 339 NLRB 866 (2003), where the Board held multi facility
units to be appropriate. However these cases are representation cases, where the Board
makes an initial determination as to what is the most appropriate unit. That is not the issue
here, since we are dealing with a historically recognized unit, which as related above, will not be
disturbed absent compelling circumstances or unless it is repugnant to the Act. Ready Mix,
supra at 947, Banknote of America, supra at 1043. Thus a historical unit will be found
appropriate, if the predecessor employer recognized it, even if the unit would not be appropriate
under Board standards if it were being organized for the first time. Ready Mix, supra; Trident
Seafoods v. NLRB, 101 F.3d 111, 118 (D.C. Cir. 1996).

Accordingly, based on the foregoing analysis and authorities, I find that Respondent has
not met its heavy burden of overcoming the presumption that the historical unit, confined to
cleaners employed at 465 Columbus is appropriate.

Having found that the historical unit is appropriate, and that there was continuity in the
enterprise, after Respondent took over the performance of cleaning work at 465 Columbus
Avenue, the last issue to be resolved is whether Respondent’s workforce was comprised of a
majority of former Colin employees. That question is undisputed, since all six of Respondent’s
cleaners were formerly employed by Colin. Therefore I conclude that Respondent was a
successor to Colin, and that it was obligated to recognize and bargain with the Union as the
representative of the employees in the historical appropriate unit, after the Union’s demand on
September 9, 2004. Respondent’s failure to comply with the Union’s demand on and after
September 9, 2004 is violative of Section 8(a)(1) and (5) of the Act. I so find.

B. The Alleged Unilateral Changes and Refusal to Bargain on and
After November 15, 2004

On or about November 15, 2004, Respondent by passed the Union, and offered unit
employees various changes in terms and conditions of employment, including wage increases,
benefits, and changing from part-time to full-time status, as well as working at 400 Columbus
Avenue, in addition to 645 Columbus Avenue. Such conduct is violative of Section 8(a)(1) and
(5) of Act. Armored Transport Inc., 339 NLRB 374, 376-377 (2003).

Further, on November 22, the Union demanded bargaining over these issues, as well as
recognition for a combined unit including both buildings. Respondent refused these requests,
and then unilaterally implemented the changes in terms and conditions of employment on
January 1, 2005. By these acts Respondent has further violated Section 8(a)(1) and (5) of the
Act. Holly Farms, supra. With respect to Respondent’s failure to recognize the Union as the
representative of employees employed at both buildings, I note that Respondent has conceded
in its brief that a unit comprised of employees at both buildings as alleged in the amendment to
the complaint, is appropriate.17 Since the operations of Respondent at its 400 Columbus
Avenue Building are substantially the same as those at its 465 Columbus Avenue building with
respect to the cleaners, and because the cleaners employed at the 400 Columbus Avenue
building are the same as those at the 465 Columbus Avenue building, Respondent has a
17 Although Respondent did urge that the unit also include landscapers and maintenance
employees, I have found above, that a unit confined to cleaners is appropriate.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
16
continuing obligation to recognize and bargain with the Union, as the representative of
employees in a unit of two buildings. Siemens Building Technologies Inc., 346 NLRB No., 9,
slip op. p. 1, fn. 1 (2005); Rock Bottom Stores, 312 NLRB 400, 401 (1993). Therefore
Respondent has further violated Section 8(a)(1) and (5) of the Act by refusing to recognize the
Union as the representative of its employees in a unit consisting of employees at both buildings.

C. The Employee Petition

Respondent contends that even if it was successor to Colin, that its obligation to
recognize and bargain with the Union, ceased when it received a copy of the petition signed by
a majority of unit employees, on March 30, 2005. M V Transportation, 337 NLRB 770 (2002)
(Overruling St. Elizabeth Manor, 329 NLRB 341 (1999), and returning to the “previously well
established doctrine that on incumbent union in a successorship situation is entitled to and only
to a rebuttable presumption of continuing majority status, which will not serve as a bar to an
otherwise valid decertification, rival union, or employer petition, or other valid challenge to the
Unions majority status.”) Id., Southern Moldings, 219 NLRB 119 (1975).

However, the Board has long held that an employer may not withdraw recognition from a
union while there are unremedied unfair labor practices tending to cause employees to become
disaffected from the union. Penn Tank Lines Inc., 336 NLRB 1066, 1067 (2001). An employer
may not avoid the duty to bargain by a loss of majority status caused by its own unfair labor
practices. NLRB v. Williams Enterprises, 50 F.3d 1280, 1288 (4th Cir. 1995).

The issue is one of causation. In cases involving a general refusal to recognize or
bargain with a union, “The casual relationship between the unlawful act and subsequent loss of
majority support may be presumed.” Penn Tank Lines, supra at 367, citing Lee Lumber &
Building Material Corp., 322 NLRB 175, 178 (1996), enfd. in relevant part and remanded 117
F.3d 1454 (D.C. Cir. 1997), decision on remand 334 NLRB 399 (2001).

Here Respondent unlawfully refused to recognize and bargain with the Union on
September 9 and November 22, 2004. The employee petition, which did not occur until March
30, 2005, is therefore tainted by Respondent’s previous refusal to bargain, and cannot be relied
upon to justify Respondent’s refusal to recognize the Union. Marion Hospital Corp., 335 NLRB
1016, 1018 (2001); Penn Tank Lines, supra; Lee Lumber, supra.

Even absent a general refusal to recognize bargain finding, the Board will then
determine whether there is a casual relationship between the unlawful acts and the subsequent
loss of majority support. Penn Tank Lines, supra; Master Slack Corp., 271 NLRB 78, 84 (1984).

Here, I have found that Respondent violated Section 8(a)(1) and (5) of the Act, by
dealing directly with unit employees, and unilaterally changing terms and conditions of
employment, including granting wage increases and benefits and changing employees’ status,
hours and place of work. These kinds of unfair labor practices, which demonstrate to
employees that the union is irrelevant in increasing wages and providing benefits, are likely to
have a long lasting effect on employees and cause employee dissatisfaction from a union. A T
Systems West, 341 NLRB 57, 59-61 (2004); Broadway Volkswagen, 342 NLRB #128 slip op. p.
4 (2004); Penn Tank Lines, supra.

Therefore, I conclude that the employee petition has no affect on Respondent’s
continuing obligation to recognize and bargain with the Union.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
17
The Remedy

Having found that Respondent has violated Section 8(a)(1) and (5) of the Act, I shall
recommend that it cease and desist therefrom and take certain affirmative action necessary to
effectuate the purposes of the Act.

The traditional remedy for unilateral change violations, is to order the Employer to
rescind, at the Union’s discretion and request, the unilateral changes unlawfully implemented.
Broadway Volkswagen, supra, slip op. p. 6.

I expressed some reservations on the record as to whether such a remedy would be
appropriate here, in view of the substantial benefits granted to the unit employees, including a
welcomed change from part-time to full-time status for five of the six employees. I asked the
parties to brief the issue.

Both Counsel for the General Counsel and the Charging Party have stated that it would
forgo such a remedy, if the bargaining order issued, would require bargaining concerning
employees employed at both buildings.

Respondent also asserts that the appropriate remedy should be, (if a violations is found)
a bargaining order covering both buildings.

Inasmuch as I have already found under the authority of Siemens Building Services II ,
that Respondent refused to recognize and bargain with the Union concerning employees in both
buildings, the bargaining order will include an order to bargain over employees employed at the
two buildings.

Even without a finding of a violation under the rationale of Siemens Building II, I would
order as a remedy for Respondent’s refusal to bargain over employees employed at 465
Columbus Avenue, the same remedy of bargaining over conditions of employment at both
buildings. I note that all parties, including Respondent, have requested such a remedy, which I
find to be appropriate in these circumstances. Five of the six unit employees who worked at
465 Columbus Avenue and about whom Respondent refused to bargain, have now been
transferred to full-time status, and work at both buildings. Thus to order Respondent to bargain
solely concerning their terms and conditions of employment at 465 Columbus Avenue, would be
unwieldy, ineffectual, and contrary to the purposes of the Act. It would make no sense to order
Respondent to bargain solely about their terms and conditions of employment at 465 Columbus
Avenue, and not concerning their terms and conditions of employment at 400 Columbus
Avenue, where they spend half their working time.

Accordingly, I shall recommend that Respondent be ordered to bargain with the Union
concerning the cleaner employees employed at both 400 and 465 Columbus Avenue.

Conclusions of Law

1. The Respondent Diamond Properties as successor to Colin Service Systems Inc. is
an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act.

2. The Union, Local 32BJ, SEIU is a labor organization within the meaning of Section
2(5) of the Act.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
18

3. Respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and
bargain with the Union concerning employees in an appropriate unit of cleaners employed at its
building at 465 Columbus Avenue, Valhalla, N.Y., on and after September 9, 2004.

4. Respondent violated Section 8(a)(1) and (5) of the Act by dealing directly with its
employees on November 15, 2004.

5. Respondent violated Section 8(a)(1) and (5) of the Act by refusing to recognize and
bargain with the Union concerning employees in an appropriate unit of cleaners employed at its
buildings located at 400 and 465 Columbus Avenue, Valhalla, N.Y.

6. Respondent violated Section 8(a)(1) and (5) of the Act, by unilaterally granting wage
increases, granting benefits, changing its employees hours, work locations and part-time status,
without bargaining about these changes with the Union.

7. The above violations are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended18

ORDER

The Respondent, Diamond Properties as successor to Colin Service Systems, Valhalla,
New York, its officers, agents, successors, and assigns, shall

1. Cease and desist from

(a) Unlawfully refusing to recognize and bargain with the Local 32BJ, SEIU (The Union.)

(b) Dealing directly with its employees represented by the Union, concerning their terms
and conditions of employment.

(c) Unilaterally granting wage increases, benefits, or changing hours, work locations
and part-time status of its employees represented by the Union without bargaining with the
Union.

(d) In any like or related manner interfering, restraining, or coercing employees in 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) On request, recognize and bargain with the Union as the collective bargaining
representative of its employees employed at its facilities in the following appropriate unit and if
an understanding is reached, embody that understanding in a signed agreement

18 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

JD(NY)–20–06

5

10

15

20

25

30

35

40

45

50
19

All cleaning service employees employed by Respondent at its facilities at 400 and 465
Columbus Avenue, Valhalla, New York.

(b) Within 14 days after service by the Region, post at its facilities at 400 and 465
Columbus Avenue, Valhalla, New York copies of the attached notice marked “Appendix.”19
Copies of the notice, on forms provided by the Regional Director for Region 2, after being
signed by the Respondent's authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by
any other material. In the event that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time since September 9, 2004.

(c) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the steps that
the Respondent has taken to comply.

Dated, Washington, D.C., May 11, 2006.

_____________________
Steven Fish
Administrative Law Judge

19 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 JUDGMENT OF THE UNITED STATES COURT OF
APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD.”
JD(NY)–20–06

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 violated 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 benefit and protection
Choose not to engage in any of these protected activities

WE WILL NOT unlawfully refuse to recognize any bargain with Local 32BJ Service Employees
International Union (The Union).

WE WILL NOT deal directly with our employees represented by the Union, concerning their terms and
conditions of employment.

WE WILL NOT unilaterally grant wage increases or benefits or change, work locations, hours or part-time
status of our employees represented by the Union, without bargaining with the Union.

WE WILL NOT in any like or related manner interfere with restrain or coerce our employees in the
exercise of the rights guaranteed them by Section 7 of the Act.

WE WILL on request, recognize and bargain with the Union as the collective bargaining representative of
our employees in the following appropriate unit concerning terms and conditions of employment, and, if
an understanding is reached, embody the understanding in a signed agreement.

All cleaning service employees employed by us at our facilities at 400 and 465 Columbus
Avenue, Valhalla, New York.

DIAMOND PROPERTIES
(Employer)

Dated By
(Representative) (Title)

Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
26 Federal Plaza, Federal Building, Room 3614, New York, NY 10278-0104
(212) 264-0300, Hours: 8:45 a.m. to 5:15 p.m.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (212) 264-0346.