Houston Buildings Service, Inc.

808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Houston Building Service, Inc. and Unlicensed Divi- sion of District Number 1, MEBA/NMU, AFL-CIO. Case 23-CA-10872 September 29, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On December 16, 1988, Administrative Law Judge William N . Cates issued the attached deci- sion . The Respondent filed exceptions and a sup- porting brief, and the Charging Party filed cross- exceptions' and a brief in opposition to the Re- spondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions and to adopt the recommended Order. i In its cross-exceptions, the Charging Party requests, inter aha, that the Board amend the judge's recommended reinstatement and make- whole remedy to include employees Tommy Lee Clark and Ophelia R Milicia, who it asserts were discharged on January 4, 1988, and "all other employees whom [the Respondent] laid off or terminated without provid- ing the Union an opportunity to bargain thereon , with full back wages, fringe benefits and seniority " We find the cross-exceptions without merit In this regard , we note that the complaint alleged unlawful layoffs occur- ring about December 11, 1987, and that the General Counsel did not amend the complaint to allege as unlawful any subsequent layoffs Fur- thermore, the matter of subsequent layoffs was not fully litigated 2 The Respondent has excepted to some of the judge's credibility find- ings The Board 's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd . 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We agree with the judge that the employees of Housekeepers Mainte- nance Service and Supply, Inc., whom the Respondent hired as of De- cember 1 , 1987, were the Respondent 's employees for the purpose of de- termining successorship notwithstanding the Respondent 's contention that they were temporary employees . As the judge found , these employees did not know that their employment with the Respondent was tempo- rary In this regard, we note the Respondent 's predecessors' practice of hiring the prior contractor's employees as permanent employees, and the fact that no one in the Respondent 's management told the unit employees that they were temporary Although, as the Respondent contends, Con- tract Manager Eugene Darby testified that on November 30, 1987, he had a meeting with supervisors and leadpersons in which he told them "that they [the former Housekeepers employees] were going to be re- placed with a new crew," the judge instead credited the testimony of leadperson Joanne Johnson as to that conversation Johnson testified that Darby told her and other Housekeepers employees that a new company would be coming in and would be bringing in "some" of its own employ- ees Johnson also testified that Darby did not tell Housekeepers employ- ees that they were temporary or that they were subcontractors or that they would eventually be laid off. In this regard , there is no credited evi- dence in the record that any of the supervisors or any member of the Respondent's management told the unit employees that they were tempo- rary, or that any member of management was instructed to so inform unit employees before December I. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Houston Building Service, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. J. O. Dodson, Esq., for the General Counsel. Thomas W. Moore, Esq. (Moore & Moore), of Houston, Texas, for the Company. Sidney H Kalban, Esq. (Phillips, Cappiello, Kalban, Holman & Katz, P. C.), of New York, New York, and H. Ralph Smith, International Rep., of Galveston, Texas, for the Union. DECISION STATEMENT OF THE CASE WILLIAM N. CATES, Administrative Law Judge. This case was tried before me in Austin, Texas, on September 8 and 9, 1988, pursuant to a complaint and notice of hearing (complaint) issued by the Regional Director for Region 16' of the National Labor Relations Board (the Board) on June 27, 1988. The complaint is based on a charge filed on December 30, 1987,2 by the Unlicensed Division of District Number 1, MEBA/NMU, AFL- C103 (Union). The complaint alleges Houston Building Service, Inc. (HBS or Company) has engaged in certain violations of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). The issues generally summarized are (1) whether HBS is a successor under the Act to Housekeepers Mainte- nance Service and Supply, Inc. (Housekeepers), thereby having an obligation under the Act to recognize and bar- gain with the Union which had been the collective-bar- gaining representative of the employees of Housekeepers; (2) whether the employees of Housekeepers that were hired by HBS were hired as temporary employees; and (3) whether those same employees referred to in issue 2 above were independent contractors instead of employ- ees of HBS. All parties were afforded full opportunity to examine and cross-examine witnesses, to argue orally, and to submit briefs. Briefs which have been carefully consid- ered were submitted by counsel for the General Counsel, the Union, and HBS. Based on the entire record, including my observation of the demeanor of the witnesses, I conclude below, after examining the relevant evidence and applicable legal principles, that HBS is the successor of Housekeepers and is therefore obligated to recognize and bargain with the Union and further that the employees of Housekeep- ers that were hired by HBS were not hired as temporary I What was originally Region 23 of the Board is currently a subdivi- sion of Region 16 2 All dates herein are 1987 unless otherwise indicated 8 The name of the Union appears as amended (without opposition) at the trial herein. 296 NLRB No. 101 HOUSTON BUILDING SERVICE employees nor were they independent contractors rather than employees of HBS. FINDINGS OF FACT 1. JURISDICTION HBS is a Texas corporation with an office and princi- pal place of business in Houston, Texas, where it is en- gaged in the business of providing janitorial services. At all times material herein , HBS has provided janitorial services for the General Services Adminstration (GSA) which manages the Veteran's Administrative Data Proc- essing Center, U.S. Treasury Disbursing Center, and the Veteran's/Internal Revenue Service Warehouse in Austin, Texas (the Austin Federal Buildings ). During 12- month period preceding the issuance of the complaint herein, a representative period , HBS, in the course and conduct of its business operations , provided services valued in excess of $50,000 for GSA, a division of the United States Government which is directly involved in interstate commerce . The complaint alleges, the parties admit, and I find that HBS is, and at all times material herein has been, an employer engaged in a business af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the parties admit, and I find that the Union is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Generally speaking, the background and essential facts are not disputed. I have, to the extent that it is practical, set forth the following undisputed or credited facts in chronological order. At places, I have identified the wit- ness or witnesses who provided certain specific facts that are set forth. Although the facts set forth are not all in- clusive, all evidence and arguments of counsels about the evidence has been weighed and considered. To the extent that any testimony or other evidence not men- tioned in this decision may appear to contradict my find- ings of facts, I have not disregarded such evidence but rather have rejected it as not relevant, surplusage, lack- ing in probative weight, or incredible. HBS and its various predecessors have for years pro- vided janitorial services for GSA which manages the Austin Federal Buildings. In 1980, the Union organized the custodial service em- ployees employed at the Austin Federal Buildings.4 The contractor/employer at that time (1980) was Nash Jani- torial Services, Inc. (Nash). Approximately 30 employees were in the unit in 1980 . Nash recognized the Union as the collective-bargaining representative of its employees after an independent certified public accountant firm, Le- 4 The appropriate unit includes all custodial service employees em- ployed at the Austin Federal Buildings excluding all other employees and supervisors as defined in the Act 809 Masters & Daniels of Moses Lake, Washington, certified that 23 of its employees had signed union authorization cards. The Union and Nash executed a collective-bar- gaining agreement in 1980 . Thereafter, until the advent of HBS, the Union has had a collective-bargaining agree- ment with each of the contractors that obtained the jani- torial services contract from GSA for the Austin Federal Building. From 1980 forward, the work force has remained at approximately 30. The employees have performed essen- tially the same work from 1980 until the present , namely, generally cleaning the buildings, stripping and waxing floors, vacuuming carpets, washing woodwork, cleaning, and making the computer rooms dust free and maintain- ing the grounds by cutting the grass and trimming the shrubbery. Some levels of cleaning are performed daily while other levels are performed weekly, quarterly, or annually on a staggered basis.5 From 1980 forward, approximately five different con- tractors have been awarded the GSA janitorial services contract for the Austin Federal Buildings . Each of the contractors that preceded HBS hired the supervisory staff and employees of their predecessor. Housekeepers had the GSA contract to provide janito- rial services for the Austin Federal Buildings immediate- ly prior to HBS being awarded the contract. On October 1, 1985, Housekeepers signed a "Memorandum of Ac- ceptance" with the Union in which it accepted the terms and conditions of an agreement then in effect between the Union and a prior contractor , namely, Rite Way Services of San Antonio, Inc. Thereafter, the Union and Housekeepers entered into a new collective-bargaining agreement covering the custodial service employees at the Austin Federal Buildings effective from August 1, 1986, until October 31, 1989. At some point in 1987, GSA solicited bids for the cus- todial work at the Austin Federal Buildings . Union Rep- resentative H. Ralph Smith (Union Representative Smith or Smith) first learned about midyear that the cleaning contract had been put up for bids . Smith testified he re- ceived a telephone call on November 19 from a Mijor Thomas (Contract Coordinator Thomas or Thomas) who identified himself to Smith as a "friendly voice" working for HBS.6 Thomas told Smith he felt reasonably sure HBS would be awarded the GSA custodial services con- tract for the Austin Federal Buildings. HBS Contract Coordinator Thomas told Smith, "he would like very much to review the collective-bargaining agreement .. . applicable to that contract and the employees working thereon." Thomas asked Smith how many employees were working under the contract at that time. Smith told Thomas there were approximately 30 unit employees. Thomas asked Smith if he had an employee seniority list, and Smith told him he did. On November 19, Smith ex- 5 I find insignificant and shall not further address the fact that GSA may have, for approximately 90 days in the fall of 1987 , stopped requir- ing certain cleaning to be performed Such did not change the overall nature of the duties of the employees and does not impact on the issues herein 9 The parties stipulated that HBS Contract Coordinator Thomas, at all times material herein, was a supervisor and agent of HBS within the meaning of the Act 810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD press mailed to Thomas (1) a copy of the collective-bar- gaining agreement the Union had with Housekeepers which was effective until October 31, 1989, (2) a Memo- randum of Agreement amending the collective -bargain- ing agreement, and (3) a copy of the employees seniority list. HBS President Jason Yoo (President Yoo or Yoo) tes- tified he met with Housekeepers Contract Manager Eugene Darby (Contract Manager Darby or Darby)' on November 16, to discuss retaining him as contract man- ager after HBS took over the GSA custodial services contract for the Austin Federal Buildings on December 1. Yoo and Darby discussed how HBS would conduct business from December 1 forward. Yoo testified he told Darby that HBS wanted to bring in its own work crews. Yoo testified Darby told him it could take up to a month to obtain security clearances for any new employees.8 Yoo testified he was not convinced it would take that long because representatives of GSA had told him it would only take approximately 1 week for new employ- ees to obtain security clearances. Employee Clifton Bailey (Union Steward Bailey or Bailey), who has worked for contractors at the Austin Federal Buildings since 1979 and has served as a union steward since approximately mid-1986, testified that on November 23, his immediate supervisor, Brian Edwards (Supervisor Edwards or Edwards),9 gave the employees on his shift employment applications which called for the applicant's personal, work, military, and educational his- tories. Edwards also gave the employees under his super- vision blank union authorization cards which were to be filled out. Edwards told the employees to fill out both sets of papers and return them by the next day, or they would be out of a job. When Union Steward Bailey asked Edwards what employer's name to put on the ap- plication, Edwards told him HBS.10 HBS President Yoo testified certain new employees were hired by HBS on November 25, to work at the Austin Federal Buildings. Those hired on that date were hired subject to their obtaining security clearances from the Government. Some of those, to whom commitments were made on that date, never actually received a securi- ty clearance from the Government and were never em- ployed by HBS.11 On November 30, Contract Manager Darby told 7- year leadperson Joanne Johnson (leadperson Johnson or 7 Darby had been contract manager for Housekeepers and as of the trial herein continued to occupy that position for HBS 8It is undisputed that all janitorial employees at the Austin Federal Buildings must have security clearances before they can enter the build- ings Employees that work in some areas such as computer rooms, must have higher security clearances than those working in other areas. 9 The parties stipulated that Edwards is, and at all times material herein has been , a supervisor and agent of HBS within the meaning of the Act. It is undisputed that Edwards held the same position with Housekeepers that he currently holds with HBS. 10 Contract Manager Darby stated he gave Supervisor Edwards job applications and union cards for the employees under his supervision, however, he was not certain as to the exact date but said it could have been as early as October. ii 0 C Exh 9(a) reflects 18 individuals were tentatively hired on No- vember 25, subject to security clearances being obtained Johnson)1 2 and other Housekeepers employees that were "hanging around the office" that a new company, HBS, would be coming in and would be bringing "some" of its own employees. Darby did not tell Housekeepers' em- ployees they would be temporary employees or that they would be considered subcontractors or that they would eventually be laid off. HBS President Yoo testified he instructed Contract Manager Darby on November 30 to put Housekeepers employees to work for HBS on December 1, on a tem- porary basis until HBS could obtain security clearances for its own employees. Yoo testified he had Darby utilize Housekeepers' employees on that date because "he pan- icked" in that if someone did not perform the job, HBS would be in "helpful" on the first day of its custodial services contract with GSA.18 The employees that had worked for Housekeepers re- ported, as had been their past practice , for work on De- cember 1 with the new contractor HBS and worked a full shift on that date. No one from HBS instructed them not to work on that date. The work force consisted of 33 persons on December 1, all of whom had been associated with Housekeepers.14 Of the 33, 30 had been unit em- ployees and 3 had been supervisors, namely, Contract Manager Darby and Supervisors Edwards and John Johnson. On December 1, the employees performed the same work they had previously performed for House- keepers with the same supervisors they had at House- keepers. Leadperson Johnson testified Contract Manager Darby gave her "Employment Application, Personnel History" forms along with union cards on either December 2 or 3 and told her to fill one out for herself and have her crew do likewise and return them to him on that date.15 HBS President Yoo testified he learned from talking with Contract Manager Darby "in the neighborhood of' December 2 or 3, that Darby had not indicated anything to Housekeepers' employees on or before December 1, that they were "temporary" workers to be utilized only until HBS could get its own crews cleared through secu- rity. Yoo testified Darby wanted something in writing on the employees' status so he thereafter drafted a letter which he signed on December 8 and subsequently mailed to Darby.16 12 I am persuaded the evidence does not establish that Johnson or her counterpart Larry Galloway were supervisors within the meaning of the Act Even if I concluded they were supervisors within the meaning of the Act, it would not alter the outcome herein 10 As will be discussed more fully elsewhere in this decision , Contract Manager Darby did not tell the employees on December 1 they would be working as temporary employees or on a temporary basis i4 Darby testified Housekeepers went out on November 30, and HBS came in on December I He acknowledged he did not tell the employees that had previously been employed by Housekeepers not to work on De- cember 1 because in the past whenever one contractor left the crews had always been hired by the new contractor inasmuch as that had been standard operating procedure. is Although he could not be certain as to the date on which he did so, Contract Manager Darby testified he provided Housekeepers employees with employment application forms as well as union cards and that he questioned the supervisors about them until he received the completed papers that he needed back from Housekeepers employees is Yoo's letter, which is set forth elsewhere in this decision , makes no mention of the fact that the employees that had previously worked for Housekeepers were or would be considered to be temporary workers HOUSTON BUILDING SERVICE On December 3, HBS commenced to utilized one indi- vidual as a supervisor who had not previously worked for Housekeepers. On December 4, the new supervisor's wife and one other employee who had not previously worked for Housekeepers commenced working for HBS. On December 7, one additional new employee started working for HBS.17 On December 7, the work hours for the unit employ- ees were changed from 4 :30-8:30 p.m. to 5-9 p.m. Also on December 7, Contract Coordinator Thomas tele- phoned Union Representatives Smith and inquired whether HBS would be liable for the severance allow- ances called for in the wage determinations issued by the U.S. Government which determinations were included in the collective-bargaining agreement between Housekeep- ers and the Union . Smith explained to Thomas the sever- ance allowances were legal fringe benefits and HBS would be liable for them . Smith then told Thomas he had heard rumors the unit employees would be replaced and asked if such rumors were true . Contract Coordina- tor Thomas told Union Representatives Smith the unit employees were not employed by HBS. Smith told Thomas the unit employees were performing the work. Thomas admitted they were but stated they had never been hired by HBS. Smith asked Thomas if he did not think the Federal Government would look at that in a different light . Thomas told Smith that was not up to him that it was up to HBS' lawyers. Thomas then told Smith there were certain documents the Union had not sent to HBS. Smith so acknowledged and told Thomas it had been because of his absences from the city and he assured Thomas he would immediately send the addition- al documents to HBS . In a letter dated December 7, mailed December 8, and received by HBS on December 9, the Union (1) demanded recognition, (2) enclosed a copy of the collective-bargaining agreement between Housekeepers and the Union , (3) provided HBS a Memorandum of Acceptance for the collective-bargain- ing agreement, and (4) provided copies of 29 union mem- bership applications/dues-deduction cards from unit em- ployees. 18 On December 9, when as usual , the unit employees re- ported for work they were instructed to execute IRS W- 9 forms. 19 Leadperson Johnson testified Contract Man- ager Darby told her that if she and the members of her crew did not execute the W-9 forms, they would not be paid. Johnson testified Darby did not mention that the employees would be considered to be independent con- tractors and she stated their duties did not change after they signed the IRS W-9 forms. Union Steward Bailey testified Contract Manager Darby told the group of ap- 17 As of December 7, HBS employed 32 rank-and-file employees (30 of which had worked for Housekeepers) and 5 supervisors (3 of which had worked for Housekeepers) is HBS stipulated it received the Union's demand letter on December 9 HBS President Yoo testified he received the other items in the letter except there were no copies of the unit employees ' union membership application/dues-deduction cards with the letter. I credit Union Repre- sentative Smith 's testimony that he mailed the cards in question. The letter that was received clearly makes reference to the cards and such cards were received in evidence at the trial herein. 19 An IRS W-9 is a "Payer's Request for Texpayer Identification Number and Certification" form. 811 proximately 15 employees that he was with on Decem- ber 9 that if they did not sign the IRS W -9 forms, they would not be permitted to enter the buildings . E° Also on December 9, the employees were shown a copy of HBS President Yoo's letter to Contract Manager Darby. Yoo's letter, which was dated December 8, reads as follows: Please inform all individuals presently performing work on the contract of our intention to make those individuals who perform the duties pursuant to the cleaning requirements of this contract subcontrac- tors and not employees of Houston Building Serv- ice, Inc. As subcontractors of HBS, all persons who perform the cleaning requirements will receive compensation in the form of a contract amount based on the prevailing Department of Labor Wage Determination and the total labor hours contribut- ed. All subcontractors will be required to submit to the company a completed form W-9 Payer's Request for Taxpayer Number and Certification. On December 9, the employees were only allowed to work 1 hour instead of their normal 4 -hour shift. As of December 9, HBS employed 37 persons , 32 rank-and-file employees and 5 supervisors. Of the 32 unit employees, 30 employees and 3 of the 5 supervisors had previously worked for Housekeepers . HBS hired four new employ- ees, both on December 10 and 11. None of these hired on those 2 days had previously worked for Housekeep- ers. At the end of the work shift on December 11, HBS terminated 11 employees that had previously worked for Housekeepers.21 As of December 19, HBS employed 16 unit employees and 2 supervisors that had previously worked for House- keepers22 and 11 rank -and-file employees and 2 supervi- sors that had not.23 It is undisputed that HBS never bargained with the Union about (1) the reduction of hours of work for the employees on December 9, (2) the termination of prior Housekeepers' employees on and after December 11, (3) its failure at any time to make contributions to the pen- sion fund, annual benefit fund, and health and welfare funds, or (4) its efforts to change its employees' status to that of independent contractors. 20 Bailey testified that Federal security personnel also told them they could not get their identification badges to enter the buildings unless they signed the IRS W-9 forms as requested by HBS 21 The I I terminated were Joyce Marie Altum, Clifton Bailey, Kenme Grady, DuTriem Kim , Maria Menchacha, Jessie Irene Meyer, Rita C Morales, Benny Henry Pamplin , Willie Belle Piper, Frances Cortez Ra- mirez, and Onme Lee Walker 22 The 16 unit employees were Tommy Clark, Clemente Cortez, Charles DeShay, Howard Franklin, Louis Figueroa, Larry Galloway, Milton Henderson , Joeann [Joanne] Johnson, Candelano Martinez, Ophe- ha Melicia, Helen North, Mary Ann Peseta, Anthony Rodriguez, Gloria Rodriguez, Lonnie Walker, and Booker Washington The two supervi- sors were Contract Manager Darby and Supervisor Edwards 23 The I I rank-and-file employees were Yi S. Braswell , Yook Brown, Chul H . Cho, Sam H . Cho, Kwang C Chang, Su Y Cruz , Young Lee, Sun C. Martin, Vela Maximo, Ok S Owens, and Ok H . Wingo. The two supervisors were Jo A Park and Yong S Park. 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD B. Positions Taken by the Parties I shall briefly summarize the positions taken by the parties. All positions taken and arguments advanced in support thereof have been considered; however, this summary is not intended to be all inclusive. HBS asserts that after it was awarded the janitorial services contract for the Austin Federal Buildings, it de- cided to keep its predecessor's contract manager and su- pervisors but to replace all unit employees with its own work crews. HBS contends it made that decision in Sep- tember or October. HBS asserts that because it was unable to obtain timely security clearances for its own workers, it was faced with either utilizing its predeces- sor's employees who had security clearances, or default- ing on its contract the very first day it assumed its con- tractual duties. Faced with this choice, HBS asserts it only utilized its predecessor 's employees as temporary workers or as independent contractors until the end of December when more of its intended work crews re- ceived security clearances, thus, stabilizing its intended work force. HBS contends that by the time its intended work force stabilized at the end of December, the Union did not represent a majority of its employees and as such it had no obligation to bargain with the Union. In this regard, HBS strongly urges it is not a successor employ- er but nevertheless asserts one of the rules developed by the Board and approved by the Supreme Court in the successorship context-the substantial and representative complement rule-is dispositive of the case sub judice. Simply stated, HBS contends it did not have a "substan- tial and representative complement" of its intended work force until on or about December 31, and urges it is at that date only that a proper determination can be made as to whether a majority of its employees were former employees of its predecessor. Since HBS contends a ma- jority of its work force on that date was not made up of employees of its predecessor, it asserts no bargaining ob- ligation was ever legally triggered into being. Counsel for the General Counsel and union counsel contend that when HBS commenced operation on De- cember 1, it had a full complement of employees all of whom had previously worked for the predecessor em- ployer Housekeepers. They assert the employees worked as janitors at the same Austin Federal Buildings as they had when employed by the predecessor under the same conditions without any change in the nature of their services and under the same supervision they had at the predecessor. Counsel for the General Counsel and union counsel assert there was substantial continuity between the enterprises such that HBS is the legal successor of Housekeepers. They further contend that as of the date (December 9) the Union made a demand to bargain of HBS, it still represented a majority of HBS' nonsupervi- sory employees and continued to represent a majority of those employees as late as December 19 which was after HBS had laid off certain employees that had previoulsy worked for Housekeepers. Thus, they assert that at all relevant times herein, the Union, as bargaining represent- ative of the predecessor's employees retained by HBS, enjoyed a clear majority status among the nonsuperviso- ry employees. Counsel for the General Counsel and union counsel contend the employees of the predecessor hired by HBS had every expectation of continued employment with HBS and as such were not temporary employees . In this regard, they point to the fact the employees were not told when they were hired that their employment would be temporary. Furthermore, counsel for the General Counsel and union counsel assert that over the course of periodic changes in the identity of the cleaning contrac- tors, it had been standard procedure for the incoming contractor to hire its predecessor's work force. Addition- ally, they contend HBS never had a definite (or for that matter indefinite) date on which the predecessor's em- ployees would be terminated . Thus, they urge the prede- cessor's employees cannot be found to be temporary em- ployees of HBS. Counsel for the General Counsel and union counsel also urge that the employees of the predecessor were not independent contractors with HBS even though HBS at- tempted to convert them to that status . They argue HBS retained all aspects of managerial control over the em- ployees it had exercised prior to attempting to convert them to independent contractor status and that the level of entrepreneurial risk for the employees remained either negligible or nonexistent at all times. Accordingly, Coun- sel for the General Counsel and union counsel urge that HBS be ordered to (1) recognize and bargain with the Union, (2) reinstate and make whole the discharged em- ployees, and (3) make the necessary contributions on the employees' behalf to the pension fund , annual benefit fund, and the health and welfare funds. C. Discussion, Analysis, and Conclusions The Supreme Court in NLRB v. Burns International Security Services, 406 U.S. 272 (1972), approved the Board's and Court's approach with respect to determin- ing whether a new company is indeed the successor of its predecessor. The approved approach is primarily fac- tual in nature and is based upon a consideration of the totality of the circumstances of a given situation . In Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987), the Supreme Court observed that this approach requires the Board to focus on whether the new compa- ny has acquired substantial assets of its predecessor and continued without interruption or substantial change the predecessor's business operations. In short, the Supreme Court noted the focus is on whether there is "substantial continuity" between the enterprises. In determining whether there is "substantial continuity" between the en- terprises, the Board's approach has been to consider the following factors: (1) whether there has been a continu- ation of the same business operations, (2) whether the new employer utilizes the same plant facility as the pre- vious employer, (3) whether the new employer utilizes the same or substantially the same work force, (4) whether the same jobs exist under the same working conditions, (5) whether the new employer utilizes the same or substantially the same supervisors , (6) whether the new employer utilizes the same machinery, equip- ment, and/or methods of production, (7) whether the new employer manufactures the same product, offers the HOUSTON BUILDING SERVICE same services, and/or has the same customers and (8) whether there has been a hiatus between the previous and new employer's operations. None of these factors is dispositive. NLRB v. Band-Age, Inc., 534 F.2d 1 (1st Cir. 1976), cert. denied 429 U.S. 921 (1976). These factors are to be examined from the employees ' perspective. In NLRB v. Security-Columbian Banknote Co., 541 F.2d 135 (3d Cir. 1976), the court observed "this 'employee view- point' derives from the concept that the only reason to limit a successor employer's ability to reorganize his labor relations is to offer the employees some protection from sudden change in the employment relationship." The court also noted the factors related to successor status must be carefully examined to ascertain "whether the changes in the nature of the employment relation- ships are sufficiently substantial to vitiate the employees' original choice of bargaining representative ." Where there is substantial continuity and the new employer is found to be a successor, the presumption of majority status by the union under the predecessor , such as estab- lished by a collective-bargaining agreement, is not affect- ed by a change in employers . The bargaining require- ments of a successor do not, however, bind it to the predecessor's collective-bargaining agreement with the union. The Supreme Court noted in Fall River Dyeing, supra, that the applicability of the Burns, supra, successor employer doctrine rested, to a substantial extent, in the hands of the successor. The Supreme Court stated "if the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor , then the bargaining ob- ligation of Section 8(a)(5) is activated." Applying these well-settled criteria and principles to the totality of the circumstances herein, I conclude HBS is a successor employer . I am persuaded the employees herein viewed the operations of HBS from December 1 forward as nothing more than a continuation of their previous employment . As Contract Manager Darby stated, it had been standard operating procedure for each new employer to utilize its predecessor 's employees to perform the same duties and functions the employees had previously performed. On December 1 when HBS became the GSA selected contractor for the Austin Fed- eral Buildings, its operations and functions were the same as its predecessor. On that date, and at all relevant times therafter, HBS was responsible, as had been its immedi- ate and other predecessor's, for generally cleaning the buildings, stripping and waxing floors, vacuuming car- pets, washing wood work, cleaning and making comput- er rooms dust free and maintaining the surrounding grounds by cutting the grass and trimming the shrub- bery. The three buildings HBS was responsible for clean- ing were the same buildings that had been cleaned by its predecessor. On December 1, HBS utilized the exact same work force performing the same jobs under the same working conditions and with the same supervisors that had been utilized by its predecessor . HBS' 33-person work force on that date consisted of 30 unit employees and 3 supervisors all of whom had worked for its prede- cessor. There was no hiatus involved herein in that the prede- cessor completed its contractual cleaning duties on No- 813 vember 30, and HBS commenced to perform the same functions on December 1, and has continued to perform those functions since that time. The record shows that the majority of HBS' employ- ees at the date it commenced operation and continuing at least through December 19, were former employees of the predecessor. On December 3, the 34-person work force consisted of 30 unit employees and 3 supervisors who had worked for the predecessor and 1 new supervi- sor who had not. The new supervisor's wife along with the one additional unit employee that had not worked for the predecessor were added to the work force on December 4. An additional unit employee that had not worked for the predecessor was added to the work force on December 7. As of December 9, HBS' work force numbered 37 with 32 unit employees and 5 supervisors. Thirty of the thirty-two unit employees and three of the five supervisors had previously worked for the predeces- sor. As of December 19 (HBS laid off certain employees on December 11), the work force numbered 31-27 unit employees and 4 supervisors , 16 of the unit employees and 2 of the 4 supervisors had worked for the predeces- sor. The significant time for determining what percentage of the new employer's employees were former employ- ees of a predecessor is when a demand for bargaining has been made and a "substantial and representative comple- ment" of the new employer's work force is on the job. Fall River Dyeing, supra. Applying this rule to the case sub judice, it is clear HBS was obligated to bargain with the Union on and after December 9, which was the date the Union made its demand for recognition and negotia- tions. On that date, HBS employed a full work force with all job classifications filled . As reflected above, it is clear a majority of HBS' employees were former em- ployees of the predecessor not only on December 9 but from the time HBS began operations at the Austin Fed- eral Buildings until at least December 19. I reject HBS' contention that the employees it hired who had been employees of the predecessor ' were nei- ther temporary employees or independent contractors. First, the predecessor's employees were given applica- tions for employment with HBS and instructed to fill them out and return them ultimately to HBS Contract Manager Darby. Consistent with past practice and stand- ard operating procedures, the predecessor's employees were allowed to work as usual on December 1 (when HBS took over the contract) and thereafter. The prede- cessor's employees were not told at the time they made application for employment with, nor when they com- menced working for, HBS that their employment would be for a given period or that it would otherwise be of a temporary nature. An employee that works a regular schedule and performs duties that are a regular part of an employer's operations is, absent other factors, not a temporary employee under Board criteria. Generally speaking, an employee is deemed temporary and ex- cluded from a unit if the employee has no expectation of continued employment with an employer and/or if there is a contemplated date for termination of the employee. See, e.g., Wayside Realty Group, 281 NLRB 357 fn. 2 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1986), and J. P. Sand & Gravel Co., 222 NLRB 83, 84 fn. 2 (1976). In the case sub judice , the predecessor's em- ployees worked regular shifts performing the regular work of HBS with no known definite or contemplated date for their termination . Hence, they were not tempo- rary employees . The fact HBS' management may have talked among themselves that the employees were tem- porary is of no consequence because such was not timely communicated to the employees. I likewise find HBS' contention that the employees herein were independent contractors to be without merit. Although President Yoo attempted to explain , via letter read to the employees on December 9, that their status with HBS was that of independent contractors , the evi- dence demonstrates their duties and functions were not thereafter changed at all. The employees were still re- quired to follow the instructions of HBS' supervisors and they were not told to supply any of their own equipment to accomplish their assigned tasks . In fact, Contract Manager Darby testified he knew of no independent de- cision that any employee made after they were told they were independent contractors. Leadperson Johnson testi- fied that at all relevant times herein, the employees had to perform their task the way HBS wanted them to in order to continue working for HBS. There were never any contracts between the employees and HBS with re- spect to their being independent contractors . In rejecting HBS' contentions, I conclude the employees had no "right of control" of either the means or the ends of their jobs and as such cannot be found to be independent contractors. See, e.g., Merry Oldsmobile, 287 NLRB 847, 848 (1987). The fact the employees were required to sign an IRS W-9 "Payer's Request for Taxpayer Identifica- tion Number and Certification " form is of no conse- quence because the employees were told they would not be paid nor could they enter the buildings to perform their duties unless they signed such forms. In summary and on the basis of the record evidence and for the reasons outlined above, I conclude HBS is a successor to its predecessor, Housekeepers, with which the Union had a collective -bargaining agreement effec- tive at the time HBS took over the GSA custodial serv- ices contract for the Austin Federal Buildings. As a suc- cessor, HBS had an obligation to bargain with the Union on and after the Union made its demand on December 9. In light of the above and inasmuch as HBS does not dis- pute that it did not bargain with the Union about (1) the reduction in hours of the unit employees on or about De- cember 9, (2) the termination on December 11 of ap- proximately 11 unit employees that had been employed by its predecessor, and (3) ceasing making payments to the employees' pension fund , annual benefit fund, and health and welfare funds, I find it violated Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. Houston Building Service, Inc. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Unlicensed Division of District Number 1, MEBA/NMU, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. Houston Building Service, Inc. is the successor of Housekeepers Maintenance Service and Supply, Inc. 4. All custodial service employees employed by HBS for the GSA at the Austin Federal Buildings in Austin, Texas, excluding all other employees and supervisors as defined in the Act constitutes a unit appropriate for col- lective bargaining within the meaning of Section 9(b) of the Act. 5. Unlicensed Division of District Number 1, MEBA/NMU, AFL-CIO has been, and is, the exclusive representative of all the employees in the aforesaid ap- propriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on or about December 9, 1987, and at all times thereafter to recognize and bargain collectively with the above-named labor organization as the exclusive representative of all its employees in the appropriate unit, HBS has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. By unilaterally reducing the hours of work of its employees in the aforesaid unit on or about December 9 and by unilaterally terminating 11 employees in the aforesaid unit on or about December 11 and by ceasing to make payments to the employees' pension fund, annual benefit fund, and health and welfare funds, HBS has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that HBS has engaged in certain unfair labor practices, I shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. I shall order HBS to recognize and, on request, to bar- gain with the Union as the exclusive representative of all its employees in the appropriate unit, which unit is de- scribed elsewhere in this decision . I shall order HBS to rescind on the Union's request the unilateral changes in unit employees' wages, hours, and terms and conditions of employment implemented on and after December 9, and to make all affected unit employees whole for losses they incurred by virtue of its unilateral changes to their wages, fringe benefits, and other terms and conditions of employment in accordance with Ogle Protection Service, 183 NLRB 682 (1970), with interest as prescribed in New Horizons for the Retarded, 283 NLRB 1172 (1987).24 Spe- cifically, I order that HBS make whole all affected unit employees for any losses they incurred by virtue of the reduction in their hours of work on December 9. HBS shall remit all payments it owes to the employee pension fund, annual benefit fund , and health and welfare funds; and reimburse its employees in the manner set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980), 24 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out to the 1986 amendment to 26 U.S.C. § 6621 1 note that no interest accrued before January I. 1987 HOUSTON BUILDING SERVICE enfd. 661 F.2d 940 (9th Cir. 1981), for expenses, if any, resulting from its failure to make these payments. Any amounts that HBS must pay into the benefit funds shall be determined in the manner set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). Having found that HBS unilaterally terminated Joyce Marie Altum, Clifton Bailey, Kennie Grady, Dutriem Kim, Maria Menchacha, Jessie Irene Meyer, Rita C. Morales, Benny Henry Pamplin, Willie Belle Piper, Frances Cortez Ramirez, and Onnie Lee Walker, I shall order HBS to offer them immediate and full reinstatement to their former positions or, if those positions no longer exists, to substantially equivalent positions without preju- dice to their seniority or other rights and privileges pre- viously enjoyed, dismissing if necessary persons hired on or after December 9, make them whole for any loss of earnings and benefits in accordance with F. W Wool- worth Co., 90 NLRB 289 (1950), and New Horizons, supra. I shall also order HBS to remove from its records all references to their terminations and notify them in writing this has been done, and that evidence of that un- lawful action will not be used as a basis for any future personnel action against them . Finally, it is ordered that HBS post a notice to its employees attached hereto as in Appendix for 60 days in order that employees may be apprised of their rights under the Act and HBS' obliga- tion to remedy its unfair labor practices. On these findings of fact, conclusions of law , and the entire record, I issue the follwing recommended25 ORDER The Company, Houston Building Service, Inc., Austin, Texas, its officers , agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with Unlicensed Division of District Number 1, MEBA/NMU, AFL-CIO as the exclusive bargaining representative of the employees in the bargaining unit described elsewhere in this decision by: (i) unilaterally changing wages, hours, and other terms and conditions of employment for bargaining unit em- ployees; (ii) unilaterally terminating bargaining unit employees without timely notice to, and/or bargaining in good faith with, the Union about such terminations. (iii) unilaterally refusing to make payments to the em- ployee pension fund, annual benefit fund , and health and welfare funds. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- 25 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 pur- poses 815 ment and, if an understanding is reached , embody the un- derstanding in a signed agreement: All custodial service employees employed by Hous- ton Building Service, Inc. for the General Services Administration Data Processing Center, U.S. Treas- ury Disbursing Center, and the Veteran's/Internal Revenue Service Warehouse in Austin, Texas, ex- cluding all other employees and supervisors as de- fined in the Act. (b) Make whole all affected unit employees for any losses they may have suffered by virtue of the reduction in their hours of work on December 9, 1987. (c) Offer Joyce Marie Altum, Clifton Bailey, Kennie Grady, DuTriem Kim, Maria Menchacha, Jessie Irene Meyer, Rita C. Morales, Benny Henry Pamplin, Willie Belle Piper, Frances Cortez, Ramirez, and Onnie Lee Walker immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, dis- charging if necessary any persons hired into the bargain- ing unit on and after December 9, 1987, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of this decision. (d) Remove from its files any reference to the termina- tion of the employees referred to in paragraph (c) above, and notify them in writing this has been done and that these actions will not be used against them in any way. (e) Preserve and, upon request, make available to the Board or its agents for examination and copying all pay- roll records, social security payment records, timecards, personnel cards and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Austin, Texas, facilities copies of the at- tached notice marked "Appendix."25 Copies of the notice, on forms provided by the Regional Director for Region 16,27 after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director in writing within 20 days from the date of this Order what steps Respondent has taken to comply. 26 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al 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 " 27 As is noted elsewhere in this decision , Region 23 of the Board no longer exists as a Region , but rather as a Resident Office of Region 16 816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 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 the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT refuse to recognize and, on request, bar- gain in good faith with Unlicensed Division of District Number 1, MEBA/NMU, AFL-CIO as the exclusive bargaining representative of the employees in the bar- gaining unit described below. WE WILL NOT change wages, hours, and other terms and conditions of employment for bargaining unit em- ployees; by failing and refusing to make payments to the employee pension fund, annual benefit fund, and health and welfare funds; by reducing the hours of work of unit employees; and by unilaterally terminating unit employ- ees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bar- gaining unit: All custodial service employees employed by Hous- ton Building Service, Inc. for the General Services Administration Data Processing Center, U.S. Treas- ury Disbursing Center, and the Veteran's/Internal Revenue Service Warehouse in Austin, Texas, ex- cluding all other employees and supervisors as de- fined in the Act. WE WILL make whole all unit employees for any loss of benefits suffered as a result of their hours of work being reduced on December 9, 1987. WE WILL offer immediate and full reinstatement to Joyce Marie Altum, Clifton Bailey, Kennie Grady, Du- Triem Kim, Maria Menchacha, Jessie Irene Meyer, Rita C. Morales, Benny Henry Pamplin , Willie Belle Piper, Frances Cortez Ramirez, and Onnie Lee Walker to their former jobs or, if those jobs no longer exist , to substan- tially equivalent positions without prejudice to their se- niority or other rights and privileges previously enjoyed, discharging if necessary any persons hired into the bar- gaining unit on and after December 9, 1987, and WE WILL make them whole for any loss of earnings and other benefits resulting from our discrimination. WE WILL notify each of the above-listed employees in writing that we have removed from our files any refer- ences to their termination on December 11, and such ac- tions will not be used against them in any way. WE WILL make whole our employees in the unit de- scribed above by making payments into the employees pension fund, annual benefit fund, and health and welfare funds that we have failed to make since on or after De- cember 9, 1987, and by reimbursing those employees for any loss of benefits they may have suffered because of our failure to make such payments. HOUSTON BUILDING SERVICE, INC.