Boston-Needham Industrial Cleaning Co., Inc.

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Boston-Needham Industrial Cleaning Co., Inc. and Building Service Employees' International Union, Local 254, AFL-CIO. Case 1-CA-9524 January 3, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On June 19, 1974, Administrative Law Judge Josephine H. Klein issued the attached Decision in this proceeding. Thereafter, General Counsel and the Charging Party filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent was not a successor and therefore had not violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of Re- spondent's cleaning maintenance employees working at an RCA facility in Burlington, Massachusetts. We find merit in the General Counsel's and the Charging Party's exceptions to this finding. The facts generally are uncontested and are briefly as follows. Pursuant to a contract, Sanitas Services of Massachusetts, Inc., performed the maintenance services at the RCA facility in Burlington, Massachu- setts, through the end of 1973 . Sanitas was signatory to a collective-bargaining agreement between a multiemployer association , Maintenance Contractors of New England, Inc. (the Association), and the Union covering all janitorial employees of the Association's members wherever employed in Massa- chusetts. Collectively, the members of the Associa- tion have approximately 3,000 employees. The collective-bargaining agreement included standard 30-day union-security and dues checkoff provisions. I Apparently, these full-time employees worked during the day. s Most part-time employees worked about 3 or 4 hours a night, Monday through Friday. 3 The Administrative Law Judge found no reason to question Admims- trat've Law Judge Ordman's finding, in Nova Services Company, 213 NLRB No. 14 (1974), that Sanitas had over 300 employees as of November 1973. 4 This figure includes employees on both the day and not shifts. At the end of December 1973, Sanitas had working at the RCA installation 7 full-time employees,' 30 part-time employees,2 5 persons designated as "fore- men," and 1 overall "supervisor," Robert Barnett. Toward the end of December 1973 Respondent, not a member of the Association and not a party to any collective-bargaining agreement, obtained the contract for cleaning the RCA facility commencing January 2, 1974. Respondent, which has a total of about 175 employees,3 began performance under its RCA contract with approximately 32 regular em- ployees4 plus Supervisor Ed Sheaff. It is undisputed that most of Sanitas' employees working at the Burlington location, other than those classified as foremen or supervisors, were members of the Union.5 Of the total of 32 employees that were on Respon- dent's payroll as of January 4, 1974, servicing RCA, 21 were previously employed by Sanitas at RCA. On January 4, 1974, the Union demanded that Respon- dent recognize and bargain with the Union for the janitorial employees at RCA. Respondent rejected the demand. Consideration of the Respondent's legal obliga- tions in this case requires a balancing of all the circumstances to determine whether a finding of successorship is warranted. N.L.R.B. v. Burns Inter- national Security Services, Inc.6 In Burns, the William T. Bums International Detective Agency had been awarded the contract to perform plant protection and security services at an aircraft service company's plant. Such services formerly had been performed by Wackenhut Corporation. Bums hired 27 former Wackenhut employees which constituted a majority of the new employer's 42-member work force. Upon the cancellation of the contract between Wackenhut and the aircraft company, Bums acquired the contract, hired a majority of Wackenhut's employ- ees, and continued to perform the same service, in the same manner, and for the same customers, at the same location as its predecessor. In finding that Burns was a successor, the Board stressed that "the finding of successorship involves a judgment that the employing industry has remained essentially the same despite the change in ownership." 7 The Supreme Court approved the Board's finding of a successorship based on the fact that the new employer had "selected as its work force the employees of the previous employer to perform the 6 The Administrative Law Judge noted that Sanitas' records indicate that as of December 28, 1973 , 31 of its employees at the RCA Burlington facility were actually members of the Union . Additionally, three part-time employees had been hired within the preceding 30 days. 6 406 U.S. 272 (1972). r 182 NLRB 348, 349 (1970). 216 NLRB No. 12 BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 27 same task at the same place they had worked in the past." 8 We are of the view that the Respondent herein effected no substantial change in the employing industry. Thus, on January 2, 1974, the Respondent commenced the performance of substantially identi- cal operations which had previously been performed by Sanitas, servicing the same facility for the same customer in substantially the same manner and utilizing for that purpose a majority of the former Sanitas work force who performed the same func- tions, and exercised the same skills. The size and organizational structure of Respondent are compara- ble to that of Sanitas,9 thus not effecting a substan- tial difference in the employer-employee relationship of the companies . 10 Moreover, the delineation of both Sanitas' and Respondent's cleaning responsibil- ities, as well as the control of their personnel, has always been retained by the management of RCA. The number of employees working the RCA facility remained approximately the same . While Respon- dent did change Sanitas' operating methods slightly by using "waxers" or "spares" employed out of Respondent's central office in Needham," such spares are used on an irregular basis to supplement the employees regularly employed at RCA. This variation in Respondent's operating methods is not sufficient to alter the basic nature of the employing industry.l2 Similarly, that no high-level Sanitas supervisor was retained by Respondent is not persuasive in these circumstances. Although Respondent uses its own supervisors, their functions and responsibilities ap- pear similar to those performed by their predeces- sors.13 Although in other circumstances resort to evidence of substantial continuity in employment of the predecessor's supervisory staff may be helpful in tracing the identity of the employing industry, in the instant case this factor is not of overriding impor- tance since other factors indicate that essentially the same operation has been continued.14 It is also clear that when Respondent entered its bid for the janitorial and cleaning services contract, it was bidding to conduct the same servicing operation at the RCA facility that was formerly performed by Sanitas. It is also clear that Respondent took over the RCA operation with knowledge that Sanitas was a union employer and that the Union had representa- tive status.15 Respondent contends, however, that the only appropriate unit in this matter is a unit consisting of all cleaning and maintenance employees employed by Respondent and that therefore Respondent is not a successor. Such a contention disregards the general rule that a single-plant unit is presumptively appro- priate.16 Here, a weighing of the critical factors indicates a sufficient separate community of interest to justify a single-plant unit as appropriate.17 All of Respondent's regular employees work at the Burling- ton facility exclusively with no interchange of employees between jobsites. Moreover, employees of RCA are under separate and distinct supervision from the employees who work at Respondent's other jobsites.18 Accordingly, we find no substantial evidence to establish that the RCA facility has been s 406 U.S. 272, 278 (1972). See In. 3, supra 10 But cf. Atlantic Technical Services Corporation, 202 NLRB 169 (1973). 11 The functions of these so-called "waxers" are set out more fully in the discussion of unit placement, infra. 12 Nor do we attach great weight to the fact that apparently there was no transfer of equipment or other assets from Sanitas to Respondent. In according this factor little weight in these circumstances, we are especially cognizant of the peculiar nature of the cleaning industry and the rather insignificant impact the equipment and assets will have upon the industry's nature. Basically, Respondent's contractual obligations only necessitate the utilization of its own pails, mops, wax, and other cleaning implements. Accord, Maintenance, Incorporateit 148 NLRB 1299 (1964). See also Overnight Transportation Co., 157 NLRB 1185, enfd. 372 F.2d 765 (C.A. 4, 1%7), cert. denied 389 U.S. 838 (1%7). 13 As noted by the Administrative Law Judge, Sanitas employed five foremen whereas Respondent employs three. Robert Barnett, Samtas' overall "supervisor," was replaced by Edward Sheaff who retained similar charge of Respondents operations at RCA. Donald Coming became Respondent's general manager, a position which had no counterpart in the Sanitas operation. Additionally, the status of two or three "foremen" employed by Respondent was litigated at the hearing but left unresolved by the Administrative Law Judge who found that issue pretermitted by her conclusion that Respondent was not a successor to Sanitas . Our resolution of the status of these employees is set forth in our discussion of unit placement, infra. 14 Accord, Maintenance, Incorporated, supra. 15 Donald Coming, Respondent's general manager, did all the employee interviewing and hiring. Corning testified that he told each of the former Sanitas employees who applied for work that Respondent was nonunion and the job would be so operated. According to Coming, such applicants replied that they did not care whether the job was union or not. Corning further testified that he would not have hired former Samtas employees if he felt that they were union and that he was going to go through this hassle. A refusal to hire for this reason would constitute a violation of Sec. 8(a)(3). N.L.R.B. v. Burns International Security Services, 406 U.S. 272, 280, fn. 5; Columbus Janitor Service, 191 NLRB 902, 903 (1971); Greengate Mall, Inc., 209 NLRB 37 (1974), (ALJD). However, since there is no allegation or evidence of such discriminatory conduct and since the complaint does not allege any such violation we make no finding as to whether such a violation occurred. ie See Welsh Co., 146 NLRB 713 (1964); National Cash Register Co., 166 NLRB 173 (1967). 17 Cf. Haag Drug Company, Incorporated, 169 NLRB 877 (1968). 1s Ed Sheaff, Respondent's RCA supervisor, is charged with day-to-day authority at the plant including the power to hire , discharge, and effect the terms and conditions of employment. The record further indicates that if Sheaff encounters a serious problem, he refers it to Don Corning, Respondent's general manager. Although Corning does not spend all of his time at the Burlington facility, he has ultimate hiring and firing authority only for that plant. Respondent employs other general managers who perform the same duties and have the same authority at Respondent 's other jobsites. See Oriole General Cleaning Services, Inc., 186 NLRB 833 (1970); Big N Department Store No. 333, 199 NLRB 174 (1972). 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effectively merged into a more comprehensive unit so as to have lost its individual identity.19 Nor do we find here that mere diminution in the unit scope relieves the successor of his duty to bargain. Although in other circumstances we believe that it may be a relevant factor to be considered, among others, in determining whether or not a new employer is a successor, such is not the case here since we have concluded that the slight changes instituted by Respondent are not such as to affect employee attitudes significantly, and since no reason- able basis has been offered for doubting the Union's continued majority status.20 Accordingly, the totality of circumstances persuades us that sufficient criteria exist which warrant a finding that there has been no basic change in the employing industry. In making this determination, we take issue with the Administrative Law Judge's finding that Lincoln Private Police, Inc.,21 is "virtually on all fours with the present case." Such reliance on Lincoln overlooks fragmentation of the employing industry there which does not exist in the present case. Thus, in Lincoln, the Board confronted a situation involving a number of security guard contracts providing services at locations throughout Puerto Rico. Lincoln's prede- cessor, Industrial Guard Services, Inc., had been a party to 61 such contracts of which Lincoln acquired only 26, or 42 percent. Apparently, after a number of Industrial's clients canceled their service contracts, Lincoln's agent began the independent solicitation of Industrial's clients for the continuation of guard services upon Industrial's anticipated demise which occurred 2 months later. The remaining 35 contracts or 58 percent were acquired by competing guard service companies . One such company, Metropolitan Security Services, Inc., acquired the largest portion which constituted an amount almost the same as that acquired by Lincoln. This splitting asunder of the 19 See Frisch's Big Boy 111-Mar, Inc., 147 NLRB 551, fn. 1 (1964); Weis Markets, Inc., 142 NLRB 708 (1963); Dixie Belle Mills, Inc., 139 NLRB 629 (1962). 20 See Zan's Foodliner, Inc., d/b/a Zim's IGA Foodliner, et al. v. N.LRB., 495 F.2d 1131 (C.A. 7, 1974), review denied 43 U.S.L.W. 3199 (Oct. 15, 1974). 21 189 NLRB 717 (1971). 22 Nor is Nova Services Company, supra, a case involving the same predecessor, in close congruence with the instant case as suggested by the Administrative Law Judge. Unlike the present case, there , upon successfully soliciting a contract to provide janitorial service to a bank's facilities, the alleged "successor" assumed only a small part of the predecessor's operation at that location. Moreover, a competing enterprise of the alleged "successor" assumed much of the bank work, all of which Sanitas had performed. Under these circumstances, an indispensable prerequisite for a finding of successor- Ship-a substantial continuity in the employing industry-was absents Here, however, Respondent has succeeded to the entire cleaning contract previously performed by Sanitas for RCA, and Respondent has continued the cleaning operation in essentially the same manner . Thus, the basic nature of the employing industry is unaltered. We also take issue with the Administrative Law Judge's conclusion that a nonsuccessorship finding here is reinforced by the supreme Court's interpretation of the successorahip concept in Howard Johnson Company, employing industry is not evidenced in the present case.22 We conclude, therefore, that Respondent is a legal successor to Sanitas and that Respondent has violated the Act by refusing to recognize and bargain with the Union. Having made this determination, it is necessary to resolve the status of the so-called "spares" 23 and of three "foremen"24 for purposes of unit placement. As previously noted, Respondent employs 12 to 14 so-called "spares" who supplement the services provided by Respondent's regular part-time employ- ees. Unlike these regular part-timers who work exclusively at RCA's Burlington facility under the supervision of Ed Sheaff, the "spares" are full-timers employed out of Respondent's central office in Needham. The "spares" work on an irregular basis at various locations serviced by Respondent. While their primary function is to wax floors, the "spares" also are dispatched to fill in for absentees on an ad hoc basis as needed at various locations. Consequent- ly, the waxers who work at the RCA Burlington establishment differ from time to time.25 The waxers generally work in teams of three and, unlike Respondent's RCA employees, utilize company trucks in traveling to the jobsites which require service. The "spares" also receive higher wages than do the regular employees 26 and they are guaranteed 50 hours' work per week if they request it.27 Upon the foregoing, we find that the "spares" do not share a sufficient community of interest'with the Respon- dent's cleaning employees at RCA28 and they are therefore excluded from the designated unit. The status of three so-called "foremen," Robert J. Beaulieu, Jr., Francis J. O'Connor, and James F. McNamara, Jr., was left unresolved by the Adminis- trative Law Judge. General Counsel contends that all three are nonsupervisory employees and should Inc. v. Detroit Local Joint Executive Boars Hotel and Restaurant Employees and Bartenders International Union, AFL-CIO, 94 S.Ct. 2236 (1974). Howard Johnson involved an action under Sec. 301 of the LMRA. As the Court carefully pointed out, its holding in that case was that Howard Johnson was not required to arbitrate with the union representing the previous employer's employees in the circumstances of that can. Whether Howard Johnson was or was not a "successor employer" for any other purpose was not decided. Id at 2244, fn. 9. 23 See fn. 11, supra, and accompanying text. 24 See fn. 13, supra, and accompanying text. sa While the evidence in the record is insufficient to clearly establish the relative amounts of time worked by the regulars and the waxers at the RCA facility, it is apparent that there is no interchangeability between the waxers and Respondent's cleaning employees at RCA. Moreover, because of changes of assignment, each waxer spends relatively little time working at RCA. as Waxers receive $2.75 an hour to start, whereas regular cleaners begin at $2.25 an hour. Even if a waxer fills in for a regular cleaner who is absent, the waxer would receive the hourly rate of $2.75. 71 On the other hand, cleaners at RCA average 40 hours a week and work no more than that. ss Cf. Cablecom-General Inc., 190 NLRB 506 (1971); Curcie Brothers, Inc., 146 NLRB 380 (1964); and R. L Polk and Company, 118 NLRB 1454 (1957). BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 29 therefore be included in the designated unit. We agree. Here, all three individuals in question were formerly employed by Samtas at the RCA facility in Burlington . With respect to Robert J. Beaulieu, Jr., the parties stipulated that as of January 4, 1974,29 he worked for Respondent at RCA's Burlington facility and was not a supervisor within the meaning of the Act. We so find and therefore include Beaulieu in the designated unit on the crucial date in question.30 As of January 2, 1974, Francis J. O'Connor was employed by Respondent at RCA performing essen- tially the same duties and at the same hourly wage as with Sanitas. While employed with Sanitas, O'Con- nor did not have the authority to hire, fire, nor effectively so recommend, as that authority was vested solely in Sanitas Supervisor Robert Barnett. Under Respondent's employ, Edward Sheaff re- placed Robert Barnett as supervisor. If anything out of the ordinary routine occurred on the job, Mr. O'Connor would see Mr. Sheaff for instructions.31 While Mr. Sheaff's testimony indicates that Mr. O'Connor may have been given supervisory powers at some period after Respondent assumed the contract at RCA, it is also clear that as of January 4, 1974, Mr. O'Connor was not vested with any supervisory authority. Thus, if Mr. O'Connor was absent from the job, a regular spare usually filled in. Any assignments, training, or instruction Mr. O'Con- nor performed were based on greater experience, as well as the rather routine nature of his work. On this basis, we find that Mr. O'Connor is not a supervisor within the meaning of the Act. Accordingly, he is included in the unit as of January 4, 1974. Similarly, as of January 2, 1974, James F. McNa- mara, Jr., became employed by Respondent at RCA performing the same duties and at the same hourly wage as with Sanitas. Mr. McNamara's position and authority under the Respondent is basically the same as that of Mr. O'Connor.32 We find, therefore, that Mr. McNamara is not a supervisor within the meaning of the Act and he is included in the unit as of January 4, 1974. ORDER The Respondent, Boston-Needham Industrial Cleaning Co., Inc., Needham, Massachusetts, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: 29 This is the date on which the Umon demanded that Respondent recognize and bargain with the Umon. 30 The record indicates that, while working for Sanitas, Mr. Beaulieu was a dues-paying member of Local 254 of the Building Service Employees. 31 The record indicates that Mr. O'Connor not only receives his instructions from Mr. Sheaff but also from RCA Supervisors Joe Rainville, Mazone, and John Andrews (a) Refusing to recognize and bargain collectively with Building Service Employees' International Union, Local 254, AFL-CIO, as the exclusive bargaining representative of all employees in the appropriate unit in violation of Section 8(a)(1) and (5) of the Act. The appropriate unit is: All cleaning maintenance employees employed by Respondent at the RCA Corporation facility in Burlington, Massachusetts, but excluding all office clerical employees, professional employees, guards and supervisors as defined in Section 2(11) of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of the employees in the above-described unit. (b) Post at the RCA facility in Burlington, Massachusetts, copies of the attached notice marked "Appendix."33 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by an authorized representa- tive of the Respondent, shall be posted by it in conspicuous places, including all places where notices to employees are customarily posted, imme- diately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. MEMBER KENNEDY, dissenting: The reversal of the Decision of the Administrative Law Judge is unwarranted. I think her conclusion that the instant case is controlled by Lincoln Private Police, Inc., 189 NLRB 717 (1971), is clearly correct. My colleagues err, I think, in trying to distinguish the instant case from Nova Services Company, 213 NLRB No. 14 (1974), which involved cleaning services previously performed by Samtas. The Board there adopted the analysis of Administrative Law Judge 32 In any event, Mr. McNamara was a foreman for Sanitas only until November 1, 1973. 33 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ordman and that analysis is applicable to the instant case. I would adopt the Decision of the Administrative Law Judge in its entirety. Upon the entire record,2 together with careful observa- tion of the witnesses and consideration of the briefs, I make the following: FINDINGS OF FACT APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Building Service Employees' International Union, Local 254, AFL-CIO, as the exclusive bargaining representative of our employees. WE WILL, upon request, bargain collectively with the above-named Union for the following appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment: All cleaning maintenance employees em- ployed by Respondent at the RCA Corpora- tion facility in Burlington, Massachusetts, but excluding all office clerical employees, professional employees, guards and supervi- sors as defined in Section 2(11) of the Act. BOSTON-NEEDHAM INDUSTRIAL CLEANING Co., INC. DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Administrative Law Judge: Pur- suant to a charge filed by Building Service Employees' International Union, Local 254, AFL-CIO (the Union), on January 4, 1974, a complaint was issued on February 28, 1974, against Boston-Needham Industrial Cleaning Co., Inc. (Respondent), alleging that since January 4 Respon- dent has violated Section 8(a)(5) and (1) of the Act' by refusing to recognize and bargain with the Union as the exclusive collective-bargaining representative of Respon- dent's cleaning maintenance employees working at an RCA facility in Burlington, Massachusetts . Respondent concedes its refusal to bargain but denies that it was or is under any obligation to recognize or bargain with the Union. Pursuant to due notice, a trial was held before me in Boston, Massachusetts, on April 8 and 9, 1974. All parties were represented by counsel and were afforded full opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. The parties waived oral argument and have all filed posttrial briefs. I National Labor Relations Act, as amended (62 Stat 136, 73 Stat. 519, 29 U S C Sec. 151 el seq ) 1. PRELIMINARY FINDINGS The complaint alleges, the answer admits, and I find that: At all times material herein Respondent, a Massachu- setts corporation with its principal office and place of business in Needham, Massachusetts, has been engaged in the business of providing cleaning and maintenance services to business establishments. In the course and conduct of its business Respondent annually provides cleaning and maintenance services valued in excess of $50,000 to businesses directly engaged in interstate commerce. Respondent is now and at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. The Issue Through the end of 1973, the RCA plant in Burlington, Massachusetts, was covered by a cleaning maintenance contract with Sanitas Services of Massachusetts, Inc. (Sanitas), which was a party to a collective-bargaining agreement between Maintenance Contractors of New England, Inc. (the Association) and the Union covering all janitorial employees in Massachusetts of the Association's members. Toward the end of December 1973, Respondent, not a member of the Association and not a party to any collective-bargaining agreement, obtained the contract for cleaning the RCA facility commencing January 2, 1974. Respondent, which has a total of about 175 employees, began performance under its RCA contract with approxi- mately 30 regular employees, of whom around 20 had been working for Sanitas at the RCA installation. On January 4, 1974, the Union demanded that Respondent recognize and bargain with the Union for the janitorial employees at RCA. Respondent rejected the demand. The ultimate question to be decided is whether Respon- dent was legally obligated to recognize the Union as the bargaining representative of its employees regularly work- ing at the RCA facility. All the parties take as their point of departure the question whether Respondent is a "succes- sor" to Sanitas. If Respondent is held to be a successor, it must then be determined whether certain "foremen" and full-time floor waxers should be included within the bargaining unit. B. The Facts Apparently for a considerable length of time Sanitas had the contract for janitorial and cleaning services at the RCA 2 Transcript corrected by an Order issued simultaneously herewith BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. 31 facility in Burlington , Massachusetts. Sanitas employs a total of some 300 persons .3 As of the end of December 1973, Sanitas had working at the RCA installation 7 full- time employees (apparently daytime workers), 30 part-time employees (working around 3 or 4 hours a night, Monday through Friday), 5 persons designated as "foremen," and 1 overall "supervisor," namely, Robert Barnett. As a member of the Association, Sanitas was signatory to a collective-bargaining agreement with the Union covering "employees engaged in the Contract Building Cleaning Industry, wherever employed in [Massachusetts] perform- ing janitorial services." Collectively the members of the Association have around 3,000 employees. The collective- bargaining agreement included standard 30-day union security and dues checkoff provisions. Sanitas records show that as of December 28, 1973, 31 of its employees at the RCA Burlington facility were actually members of the Union. Testimony established that three additional part-, time employees had been hired within the preceding 30 days and thus had not as yet been designated as union members on the Company's records .4 Respondent has about 150 to 175 employees and performs contract janitorial services at some 60 locations. Toward the end of December, RCA and Respondent executed a contract calling for Respondent, inter alia, to provide a full-time overall supervisor, plus the following personnel Monday through Friday: 3 porters for 8 hours, 1 matron for 8 hours, 1 day foreman for 8 hours, 26 night cleaners for 3 hours, and 4 night foremen for 3 hours. Thomas P. O'Riordan, Respondent's president, treasurer, and apparently sole owner, testified, credibly and without contradiction, that this portion of the agreement was orally modified so as to require only that Respondent provide the total specified number of hours per week, with discretion in Respondent to distribute the hours and work as it deems advisable. RCA pays for the services on a per-hour basis. Francis H. Newman, Jr., union business agent, testified that he first learned on December 21, 1973, that Respon- dent was going to replace Sanitas as the cleaning contractor at the RCA installation. He thereupon visited the plant and had all the employees sign new union authorization cards "for the purpose of collective bargain- ing" and "so that we would know that everybody had signed the union card, in case we had to come to the Board." Newman informed the employees that Respon- dent was "a non-union company" and that the employees "would have a problem of getting a job with" Respondent. He instructed them to call Respondent's office and apply for jobs. As a result of such calls, some 20 Sanitas employees were hired by Respondent to continue on the jobs they had been performing. Respondent hired other employees who applied for jobs in response to newspaper advertisements that ran for 2 weeks. All employees were "cleared" by RCA. 3 There is no direct evidence as to this figure in the present record However, in Nova Service Company, 213 NLRB No. 14, Administrative Law Judge Ordman found that Sanitas has "over 300 employees" as of November 1973 There is no reason to question that figure. 4 As previously noted, five persons were listed as "foremen " Although the status of so-called "foremen" was litigated, that issue is pretermitted by the conclusion reached herein . Accordingly the relevant evidence is not discussed Donald Coming, Respondent's general manager, did all the employee interviewing and hiring. Each of the former Sanitas employees who applied for work with Respondent said that he was calling at the Union's suggestion. Corning told each of them that Respondent was nonunion and the job would be so operated. According to Corning, such applicants replied that they did not care whether the job was union or not. Both Corning and O'Riordan conceded at the hearing that they knew that Sanitas was a union employer. Corning also testified: "I wouldn't have hired [former Sanitas employees] if I felt that they were union, that I was going to go through this hassle. I could get plenty of people. I was doing this as a favor. They're all college boys; they needed a job." He also testified: "We told them when they called we were a non-union company. We didn't hide anything." When Respondent took over on January 2, Barnett, Sanitas' supervisor, was replaced by Edward Sheaff. Above Sheaff was Corning as general manager, which position had had no counterpart in the Sanitas operation.5 Respondent's operating methods appear to have been substantially the same as those of Sanitas, with one significant exception. Whereas Sanitas had had approxi- mately 30 to 32 regular part-time employees working nights at the RCA facility, Respondent reduced the number of regular part-time night workers to an average of about 25. Their services are supplemented, on an irregular basis, by those of so-called "waxers" or "spares." The waxers or spares are employees who work out of Respondent's central office in Needham. Respondent employs some 12 to 14 waxers, who, generally in teams of 3, travel in company trucks to various locations serviced by Respon- dent. The primary function of these full-time employees is to wax floors, but they also are dispatched to fill in for absentees on an ad hoc basis as needed at various locations. Some so-called waxers or "spares" are regularly assigned to specified locations but, unlike the regular part- time workers, they serve at more than one location. The waxers or spares, as a class, receive higher wage rates than do the regular employees and are guaranteed 50 hours' work per week if they want it .6 Waxers are dispatched to locations on an availability basis, with the result that the waxers who work at the RCA Burlington establishment differ from time to time. The evidence in the record is insufficient for any accurate estimate of the relative amounts of time worked by the regulars and the waxers at the RCA facility. Further, even precisely presented records for the period covered would not be entirely helpful, since for the first few weeks waxers were used extensively for the purpose of making time studies of the entire operation. In testifying, O'Riordan indicated that in the main the waxers' work would probably be largely concentrated toward the end of the week. As previously stated, on or about January 4, 1974, 5 Respondent also had three persons classified as "foremen," as contrasted to Sanitas' five. See fn 4 6 Although O'Riordan said the difference in wage rates reflects the difference between full-time and part-time workers, this does not appear to be entirely so It appears that Respondent has some part -time "spares." And its five or six daytime "regular" employees at the RCA facility work fulltime, i.e., 8 hours a day, Monday through Friday 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent received the Union's formal demand for recognition. Respondent rejected the demand, apparently without stating any reason for the rejection. The evidence also establishes that Respondent's wage rates differ from those of Sanitas. While the waxers receive more than the rates provided in the Association contract, Respondent's "regular" employees receive less than the union rates. The complaint originally alleged an unlawful unilateral reduction of wages and benefits, but that allegation was deleted by amendment at the outset of the hearing At the hearing Respondent introduced into evidence an antiunion declaration signed by 29 persons, apparently all regular employees of Respondent at the RCA Burlington plant. It was received by Respondent (and a copy by the Board) around the middle of March 1974. However, Respondent does not now rely on that petition or any other evidence of employee opposition to the Union as support for Respondent's refusal to bargain. Discussion and Conclusion All the parties have presented as the first question to be decided whether Respondent is a "successor" to Sanitas as the employer of the cleaning personnel at RCA Burlington facility.7 A negative answer to that question will end the matter, since the complaint does not allege any basis other than successorship for a bargaining obligation. In many situations resolution of the successorship issue might well depend in substantial part on the appropriateness of the "successor" bargaining unit claimed.8 However, as set forth below, under the particular facts here presented, the successorship issue can be decided without resolution of the bargaining unit issues litigated at the heanng.9 Although the Board has in numerous cases set forth broad, general criteria for determining "successorship," the decision in each case must be made on the basis of the "totality" of the particular facts, with no single element or group of factors in itself decisive. Howard Johnson Co. v. Detroit Local Joint Executive Board, etc., supra; Radiant Fashions, Inc.," 202 NLRB 938 (1973). Even with such particularized consideration, Board decisions are not always easily reconcilable. See JAM [Atlantic Technical Services Corp.] v. N.L.R.B., 498 F.2d 680, fn. 3 (C.A.D.C., 1974). It would serve no useful purpose to analyze in detail a great many Board decisions because one, Lincoln Private Police, Inc., 189 NLRB 717 (1971), is virtually on all fours r In many situations this somewhat glib formulation of the issue would be unproductive or inadequate Cf Howard Johnson Co v. Detroit Local Joint Executive Board, Hotel & Restaurant Employees, ei al, 417 U S. 249, in 9(1974) 1 Cf N LR B v Burns International Security Services, 406 U S 272, 280 (1972), Border Steel Rolling Mills, 204 NLRB 814 (1973). 9 These concerned the inclusion in or exclusion from the unit of the waxers and the so-called "foremen " 10 We do not here reach the question whether it is essential for "successorship" that employees of the old employer constitute a majority (rather than only a substantial part) of the bargaining unit claimed under the new employer Cf. Spruce Up Corporation, 209 NLRB 194 (1971) ii As previously noted, the status of two or three "foremen" employed by Respondent was litigated at the hearing. Without deciding that issue, it can be said that, even if they were "supervisors" rather than "employees" within the statutory definitions, they clearly were not management-level or with the present case. There, as here, the new employer obtained a contract covering one of many installations serviced by the prior employer and the location in question constituted a relatively small (though not entirely insub- stantial) part of the new employer's total operations. In both cases the alleged "successor" was a smaller company than the "predecessor." In both cases a majority of the members of the claimed single-location bargaining unit had previously been employed by the former employer 'O but there was no continuity of major supervision.li As was the fact in Lincoln, it appears here that there was no transfer of equipment, uniforms, or other assets from the old to the new contractor. In each case there was evidence that when the new employer took over, it knew that the prior employer's workers were unionized, although the new employer may not have known the details of the governing collective-bargaining agreement. The only apparent differ- ence of possible significance between the two cases is that in Lincoln the union had been certified as the representa- tive of the prior employer's employees whereas there is no evidence here that the Union had ever been certified as the representative of Sanitas' employees. But the presence or absence of certification would not be determinative of successorship as such. Makela Welding, Inc. v. N.L.R.B., 387 F.2d 40 (C.A. 6, 1967); Columbus Janitor Service, 191 NLRB 902, 903 (1971). If anything, the absence of certification would render the Lincoln nonsuccessorship ruling a fortiori proper in the present case, where the Sanitas employees were worked under a union-security clause and, so far as appears, never affirmatively expressed their union preference. 'See Zim's Foodliner, Inc. v. N. L. R. B., 495 F.2d 1131 (C.A. 7, 1974) (dissenting opinion); Atlantic Technical Services Corp., 202 NLRB 169 (1973), enfd. 498 F.2d 680 (C.A.D.C., 1974). Thus, on the authority of Lincoln Private Police, Inc., it is here found that Respondent is not a successor of Sanitas. The complaint does not allege any independent unfair labor practices which might warrant the issuance of a bargaining order in the absence of a successor's bargaining obligation. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).12 Accordingly, there is' no need to decide whether the Union represented a majority in an appropri- ate unit. The foregoing conclusion accords with the decision of Administrative Law Judge Ordman in Nova Service Company, 213 NLRB No. 14 (1974), involving another company which, like the present Respondent, was awarded a contract for services previously performed by Sanitas. high-echelon personnel . No high-level supervisor for Sanitas was retained by Respondent 12 O'Riordan testified that he would not have hired any former Sanitas employees if he "felt that they were union ." Had he refused to hire for that reason, Respondent would have violated Section 8(aX3) N LR. B V Burns International Security Services, 406 U.S 272 , 280, fn 5 (1972), Columbus Janitor Service, supra, 191 NLRB at 903 (1971); Greengate Mall, Inc, 209 NLRB 37 (1974) But there is no allegation or evidence of such discriminatory conduct Since the complaint does not allege any such violation , no opinion is here expressed as to whether Respondent committed unfair labor practices by O'Riordan's testimony, given in the presence of employees , or by in effect conditioning the employment of former Sanitas employees on their accepting the "fact" that Respondent was "a non-union company" and was "not interested" in unions BOSTON-NEEDHAM INDUSTRIAL CLEANING CO. The General Counsel and the Union seek to distinguish Nova on the ground that there the alleged "successor" had acquired the contract covering only part of one installation formerly serviced by Sanitas whereas in the present case Respondent obtained the contract for the entire RCA facility at Burlington. First, it should be observed that there is no similar factual difference between the facts in the present case and those in Lincoln Private Police, upon which Administrative Law Judge Ordman based his decision in Nova. Neither the General Counsel nor the Union attempts to distinguish Lincoln. Second, while it is true that Respondent here obtained a contract for servicing the entire RCA Burlington installation, the General Counsel and Union would in effect sever the floor waxing, a substantial part of the work , from the rest of the operation. By excluding the waxers from the appropriate bargaining unit, the General Counsel and the Union would limit Respondent's "successorship" obligation to only part of the contract,13 thus bringing the present case into even closer congruence with Nova. 14 While the presently 13 The General Counsel and the Union apparently concede that Respondent is under no bargaining obligation if the waxers are included in the bargaining unit, with the result that former Sanitas employees do not constitute a majority of the unit members. But see the contrariety of views in Spruce Up Corporation, supra. 14 There is now pending before the Board a motion to reopen the record 33 unreviewed decision in Nova [Board's decision issued August 28, 19741 is not controlling as precedent in the instant case, it is persuasive. The nonsuccessorship finding there, as here, is compelled by the Board's controlling decision in Lincoln Private Police. The nonsuccessorship conclusion finds reinforcement in the Supreme Court's restrictive interpretation of the successorship concept in Howard Johnson Co. v. Detroit Local Joint Executive Board supra, issued after Administra- tive Law Judge Ordman's decision in Nova CONCLUSION OF LAW Respondent has not violated Section 8(aX5) and (1) of the Act, as alleged in the complaint. [Recommended Order for dismissal omitted from publi- cation.] in Nova for the receipt of evidence that , contrary to Administrative Law Judge Ordinates finding, Nova actually obtained the cleaning contract for the entire bank facility there involved. With no attempt to predict the Board's action on the pending motion in Nova, it is here again observed that Lincoln involved the transfer of a contract for servicing an entire installation.