HSA Cleaning, Inc.

373 NLRB No. 46 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. HSA Cleaning Inc. and Service Employees Interna- tional Union, Local 32BJ. Case 22–CA–298853 April 19, 2024 DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND WILCOX On September 28, 2023, Administrative Law Judge Jeffrey P. Gardner issued the attached decision, and on October 6, 2023, he issued an errata. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent filed a reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.1 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 conclusions3 1 Member Prouty took no part in the consideration of this case. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. 3 For the reasons stated by the judge, we affirm his conclusions that the Respondent violated Sec. 8(a)(3) and (1) of the Act by discharging employee Jose Teran and violated Sec. 8(a)(1) by discharging employ- ee Luis Varela. We thus find it unnecessary to pass on the judge’s finding that the Respondent also violated Sec. 8(a)(3) by discharging Varela, as the finding of this additional violation would not materially affect the remedy. We have amended the judge’s conclusions of law consistent with our findings. Although Member Kaplan agrees that the Respondent violated Sec. 8(a)(1) by discharging Varela, he would reverse the judge’s finding that Varela’s discharge also violated Sec. 8(a)(3). In his view, the General Counsel failed to satisfy the requisite initial showing under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). In arguing that it lawfully discharged Teran and Varela, the Re- spondent cites Palms Hotel & Casino, 344 NLRB 1363 (2005), where the Board found that the respondent had lawfully discharged a poorly performing employee as part of an overall staff reduction, notwith- standing that employee’s protected union activity. Palms Hotel & Casino, however, is distinguishable from this case. Here, the judge found, and we agree, that the Respondent’s argument that it discharged Teran and Varela as part of a downsizing is undermined by the Re- spondent’s hiring of new employees shortly after it discharged Teran and Varela. Furthermore, there is no credited evidence establishing that Teran or Varela had performance issues, and the Respondent’s claims about Varela’s poor performance are further undermined by the fact that it had offered him a promotion just 4 months before his discharge. and to adopt the recommended Order as modified and set forth in full below.4 AMENDED CONCLUSIONS OF LAW 1. Delete Conclusion of Law 3. 2. Insert the following as Conclusions of Law 3 and 4 and renumber the judge’s Conclusion of Law 4 as Con- clusion of Law 5: 3. On or about June 26, 2022, the Respondent violated Section 8(a)(3) and (1) by unlawfully terminating the employment of Jose Teran for his union activity. 4. On or about June 26, 2022, the Respondent violated Section 8(a)(1) by unlawfully terminating the employ- ment of Luis Varela for his protected concerted activity. ORDER The National Labor Relations Board orders that the Respondent, HSA Cleaning Inc., East Rutherford, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against employees for supporting SEIU Local 32BJ or any other labor organization. 4 We amend the judge’s remedy in one respect. In his recommend- ed Order, the judge correctly ordered the Respondent to compensate Teran and Varela for any other direct or foreseeable pecuniary harms incurred as a result of their unlawful discharges, including reasonable search-for-work and interim employment expenses, if any, regardless of whether these expenses exceed interim earnings. However, he failed to state how this compensation would be calculated. We clarify that com- pensation for these harms shall be calculated separately from taxable net backpay, with interest at the rate prescribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and in accordance with our deci- sions in Paragon Systems, Inc., 371 NLRB No. 104 (2022), and Thryv, Inc., 372 NLRB No. 22 (2022). In addition, we shall modify the judge’s recommended Order to require the Respondent to post notices in both English and Spanish. Both Teran and Varela testified through an interpreter at the unfair labor practice hearing, and the record demonstrates that the Respondent frequently communicates with em- ployees in Spanish and has utilized interpreters to translate workplace conversations with its employees from English to Spanish. In these circumstances, we find that notice postings in English and Spanish are warranted. See, e.g., Arbah Hotel Corp. d/b/a Meadowlands View Hotel, 371 NLRB No. 126, slip op. at 1 fn. 2 (2022); Empire Janitorial Sales & Services, LLC, 364 NLRB 1874, 1874 fn. 3 (2016). We shall substitute a new notice to conform to the Order as modified. Unlike his colleagues, Member Kaplan would require the Respond- ent to compensate Teran and Varela for other pecuniary harms only insofar as the losses were directly caused by the unlawful discharge, or indirectly caused by the unlawful discharge where the causal link be- tween the loss and the unfair labor practice is sufficiently clear, con- sistent with his partial dissent in Thryv, supra. Member Kaplan also acknowledges and applies Paragon Systems as Board precedent, alt- hough he expressed disagreement there with the Board’s approach and would have adhered to the position the Board adopted in Danbury Ambulance Service, Inc., 369 NLRB No. 68 (2020). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 (b) Discharging employees because they engage in protected concerted activities. (c) 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) Within 14 days from the date of this Order, offer Jose Teran and Luis Varela full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their sen- iority or any other rights or privileges previously en- joyed. (b) Make Jose Teran and Luis Varela whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharges, in the manner set forth in the remedy section of the judge’s decision as amended in this decision. (c) Compensate Jose Teran and Luis Varela for the adverse tax consequences, if any, of receiving lump-sum backpay awards, and file with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar year for each employee. (d) File with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Jose Teran’s and Luis Varela’s corresponding W-2 forms reflecting the backpay award. (e) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charges of Jose Teran and Luis Varela and, within 3 days thereafter, notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (f) Preserve, and within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at its East Rutherford, New Jersey facility copies of the attached notice marked “Appendix.”5 Cop- 5 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notice must be posted within 14 days after service by the Region. If the facility involved in ies of the notice, on forms provided by the Regional Di- rector for Region 22, after being signed by the Respond- ent’s authorized representative, shall be posted by the Respondent in English and Spanish and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily post- ed. In addition to physical posting of paper notices, no- tices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily com- municates with its employees by such means. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of busi- ness or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 26, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 22 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 19, 2024 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member ________________________________________ Gwynne A. Wilcox, Member these proceedings is closed or not staffed by a substantial complement of employees due to the Coronavirus Disease 2019 (COVID-19) pan- demic, the notice must be posted within 14 days after the facility reo- pens and a substantial complement of employees have returned to work. If, while closed or not staffed by a substantial complement of employees due to the pandemic, the Respondent is communicating with its employees by electronic means, the notice must also be posted by such electronic means within 14 days after service by the Region. If the notice to be physically posted was posted electronically more than 60 days before physical posting of the notice, the notice shall state at the bottom that “This notice is the same notice previously [sent or posted] electronically on [date].” 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” HSA CLEANING INC. 3 (SEAL) 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT discharge or otherwise discriminate against any of you for supporting SEIU Local 32BJ or any other labor organization. WE WILL NOT discharge or otherwise discriminate against any of you for engaging in protected concerted activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Jose Teran and Luis Varela full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Jose Teran and Luis Varela whole for any loss of earnings and other benefits resulting from their unlawful discharges, less any net interim earnings, plus interest, and WE WILL also make them whole for any other direct or foreseeable pecuniary harms suffered as a result of their unlawful discharges, including reasonable search-for-work and interim employment expenses, plus interest. WE WILL compensate Jose Teran and Luis Varela for the adverse tax consequences, if any, of receiving lump- sum backpay awards, and WE WILL file with the Re- gional Director for Region 22, within 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay awards to the appropriate calendar years for each employee. WE WILL file with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed by agreement or Board order or such additional time as the Regional Director may allow for good cause shown, a copy of Jose Teran’s and Luis Varela’s corre- sponding W-2 forms reflecting the backpay awards. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharges of Jose Teran and Luis Varela, and WE WILL, within 3 days thereafter, notify each of them in writing that this has been done and that the discharges will not be used against them in any way. HSACLEANINGINC. The Board’s decision can be found at https://www.nlrb.gov/case/ 22-CA-298853 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washing- ton, D.C. 20570, or by calling (202) 273-1940 Michael Silverstein, Esq. for the General Counsel. John R. Vreeland, Esq., for the Respondent. Brent Garren, Esq., for the Charging Party. DECISION STATEMENT OF THE CASE JEFFREY P. GARDNER, Administrative Law Judge. The charge in Case 22–CA–298853 was filed on July 7, 2022. The complaint alleges that on or about June 26, 2022, Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully termi- nating employees Jose Teran and Luis Varela in retaliation for their protected union and/or concerted activity. Respondent denies the terminations were unlawful. Beginning April 18, 2023, and ending April 27, 2023,1 I conducted a trial in Newark, New Jersey, during which all par- ties were afforded the opportunity to present their evidence. On June 15, 2023, the General Counsel, Respondent and the Charging Party (“the Union”) each filed timely briefs. Upon consideration of the entire record and the briefs filed, I 1 The April 27, 2023 session was conducted via Zoom Government pursuant to the Board’s decision in William Beaumont Hospital, 370 NLRB No. 9 (2020), and with all-party consent, during which all par- ties were afforded the opportunity to participate fully. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 make the following FINDINGS OF FACT I. JURISDICTION Based on the pleadings herein, and its representations at hearing, Respondent admitted, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. In addition, Respondent admits, and I find that the Union is a Labor Organization within the meaning of Section 2(5) of the Act.ii. alleged unfair labor prac- tices Background Respondent is in the business of providing cleaning services, including at the American Dream Mall (“the Mall”) located in East Rutherford, NJ, the only facility involved herein. Re- spondent was established in June 2020 for the purpose of un- dertaking the cleaning contract for the Mall, its only client. With the Mall having closed to the public due to Covid from March 2020 to October 2020, Respondent took over the con- tract from the prior contractor, GSS, in October 2020. The Mall is a large retail and entertainment complex com- prising approximately three million square feet, including retail shops, an indoor waterpark, a ski slope, an ice-skating rink and an amusement park. Respondent is responsible for cleaning the interior of the Mall, not including the retail tenant spaces or the parking lot. As of 2022, Respondent had approximately 150 employees, the vast majority of whom were cleaners. The cleaners worked in 3 shifts: 7 a.m. to 3:30 p.m., 3 p.m. to 11:30 p.m., and 11 p.m. to 7:30 a.m. In June 2022, the number of employees had reduced to approximately 125 employees, including 114 clean- ers and 8 shift supervisors. This was in part due to demands made by the Mall to reduce employee hours, and the decision by Respondent to eliminate the overnight shift. Jose Teran and Luis Varela are cleaners who until their ter- minations on June 26, 2022, were employed by Respondent and assigned to work at the Mall. Both Teran and Varela testified at the hearing regarding their employment with Respondent, and the events leading up to their discharge. Also testifying at the hearing for the General Counsel were cleaner Luz Esther Herrera, former Mall Supervisor Gloria Castellanos2 and Union Organizer Claudio Saldaña. Respondent offered the testimony of its Director of Opera- tions Drew Padell, CEO Hillel Dombroff, Assistant Director of Operations Shirley Cabrera, Supervisors Elita Brito and Juan Cortes-Rivera, and Mall Property Manager Eileen Alarcon. A. Teran’s Prior Concerted Activity Beginning in early 2022, the cleaners working Respondent’s first shift were talking among each other about their complaints over the way supervisors were treating them, and Respondent’s seeming inability or unwillingness to address their concerns. Jose Teran was one of those morning shift workers, and was 2 Castellanos was employed directly by the Mall and was never di- rectly employed by Respondent. However, in her role, she was tasked with supervising the work of Respondent’s employees. asked by his coworkers to be their spokesperson in raising their concerns to management, which he agreed to do. In March 2022, Teran spoke with Shirley Cabrera about set- ting up a meeting with Drew Padell to bring the workers’ com- plaints to him. Cabrera arranged a meeting for Padell to hear from the workers. The meeting was recorded, reflecting con- versations in English and Spanish. Since Padell only spoke English, Cabrera served as translator for him. At this meeting, Teran did serve as the main speaker on be- half of the assembled workers. He told Padell that the workers were uncomfortable with several things going on in the work- place, including harassment, perceived threats of termination from Cabrera, and favoritism of certain employees, all of which were contributing to the workers’ feeling stressed by the condi- tions of their workplace. Padell and Cabrera were both present to hear Teran speak on behalf of his coworkers. B. Charging Party’s Organizing Drive at the Mall Prior to the terminations of Varela and Teran, the Union had begun an organizing drive among the cleaners, visiting the Mall and approaching workers to talk about the possibility of joining the Union. Union Representatives Claudio Saldaña and Lisa McAllister both physically visited the Mall and personally spoke with Respondent’s workers on multiple occasions. Varela spoke w/McAllister on Jun 14, 2022, in the Mall’s food court, where McAllister shared with him ways bringing in the Union could benefit employees. Varela agreed that it would be good to have the Union, and gave McAllister his cell phone number. McAllister texted Varela that afternoon to thank him for meeting with her. At around that same time, mid-June 2022, Teran spoke with Saldaña at the Mall, who had approached him while he was working, and started telling Teran about the Union. Teran let Saldaña know that he was interested in the Union, but that he was working, and so Saldaña gave Teran his business card and left. That same day, Teran went downstairs to the engine room to return his cleaning supplies and encountered Mall Supervisor Castellanos along with Respondent Supervisor Brito. Teran approached Castellanos and handed her the business card, ask- ing if she knew anything about the Union. Castellanos said “oh my God. Are they here?” And Teran said yes. Castellanos then spoke a little about the Union to Teran. Teran said he thought the Union would be something very good for the work- ers. Brito was present and listening to this entire exchange. She asked Castellanos what the card was, and Castellanos told her it was the Union. Castellanos also said that if the Union offered benefits for the employees, it’s a good thing. A few days later, Castellanos also told her boss, Eileen Alarcon, that the Union was organizing at the Mall, and Alarcon told her that both Padell and Cabrera already knew that. After meeting Saldaña, and having the conversation with Castellanos in front of Brito about the Union, Teran proceeded to speak to 6 or 7 of his coworkers about the Union, including HSA CLEANING INC. 5 Varela.3 Thereafter, Teran reached out to Saldaña to let him know that there were other workers interested in the Union. C. Additional Protected Concerted Activity by Varela and Teran Respondent’s morning shift employees begin each day with a morning meeting at the start of their 7 a.m. shift. These meet- ings were conducted by Supervisor Elitha Brito in Respond- ent’s office, located in the Mall. The office consists of approx- imately 400 square feet of space containing some tables, desks, a refrigerator and a cleaning supply closet. There are white- boards on the wall. Brito uses these meetings to advise the workers of any special projects they will be working on, and posts that day’s individual assignments and break times on the whiteboards. On occasion, these meetings can include reviews of cleaning protocols and safety information. At 6:50 a.m. on the day of the June 22, 2022 morning meet- ing, Brito told employees that she wanted to start that day’s morning meeting a few minutes earlier than the scheduled 7 a.m. start time. The workers were particularly upset by this because just one day earlier, at the end of the June 21, 2022 shift, Cabrera had gathered employees to chastise them about leaving early, and demanded that they respect their scheduled shift times, going so far as to refuse to give them access to their sign-out sheets until 3:30 p.m. Against that backdrop, Varela spoke up to Brito and remind- ed her of Cabrera’s words and actions the day before, telling her that the meeting could therefore not start until 7 a.m. Varela also stated that if the workers were forced to start the shift meeting ten minutes early, then they should also leave ten minutes early at the end of the day. Brito agreed to wait until 7 a.m. to start the meeting, but was clearly annoyed, as evidenced by her reporting Varela’s conduct to Cabrera. Later that day, Cabrera met with Varela and reprimanded him for disrespecting Brito. While Varela tried to explain that he was just asking for consistency with Cabrera’s own state- ments of the prior afternoon about respecting shift times, never- theless Cabrera told Varela that because of his challenging Brito, Cabrera was going to end the perk of being able to buy coffee once their shifts started, which they had previously been permitted to do. D. Ongoing Organizing and HSA’s Response After this meeting with Cabrera, Varela immediately texted McAllister to ask what the workers needed to do to bring in the Union. McAllister texted back and included Saldaña, with instructions for Varela and Saldaña to connect going forward. Saldaña and Varela then scheduled a meeting that same evening at the Newport Center Mall in Jersey City. At that meeting, Saldaña explained to Varela that he would need to gather signa- tures from his coworkers for a petition. Varela agreed to start, and the two planned to meet the next day at the Mall. Varela did not even wait a day, calling three coworkers that same night to elicit their support for the Union, and help col- lecting signatures. The next day, June 23, 2022, Varela spoke 3 Teran and Varela had a personal relationship outside of work, and were able to speak freely with each other about the Union in that con- text. with around seven more coworkers, before their shift and dur- ing breaks. His efforts were going well until later that morning when one of his coworkers, Luz Esther Herrera, told him that Respondent was looking for an excuse to fire him, and that Padell and Cabrera wanted to know if the Union had come to the Mall by themselves or if an employee had asked them to come. After hearing this, Varela texted Saldaña to cancel their planned meeting that day. There was no testimony from any witness that they heard from Padell or Cabrera directly that they were looking for an excuse to fire Varela or that they were trying to find out who brought the Union to the Mall. However, there was indirect evidence that Teran and Varela were being singled out by Re- spondent in the form of Brito’s June 21 and 22 shift reports, naming them as individuals allegedly not paying attention, on their phones and in her estimation making other employees uncomfortable. No other employees were mentioned in her reports, and no other reports were offered by Respondent to demonstrate that this type of singling out of employees not paying attention had ever been done by her in the past. E. Teran and Varela Terminations On June 26, 2022, three days after Varela began gathering signatures for a Union petition, and three days after hearing the rumor that Respondent was looking for a reason to terminate employees responsible for bringing in the Union, Respondent fired both Varela and Teran. Each received an identical text message which read: Good afternoon. The reason for this message is to inform you that the company has undertaken evaluations and has decided to go in another direction and terminate your services. Thank you for the time and effort. (GC Exh. 6(b) and 7). Varela attempted to get a better explanation for his termina- tion by texting CEO Hillel Dombroff and Dombroff’s father, Steven Dombroff, who had served as an informal advisor to his son, but it was to no avail. Hillel told him there was nothing he could do, and although Steven promised to look into it, he nev- er actually responded to Varela again. Similarly, Teran at- tempted to get an explanation for his termination from Cabrera, but was told only that it was “one thing after another” without anything more specific. Indeed, Respondent never provided Varela or Teran with specific reasons for their terminations. At the hearing, Respondent denied that Varela’s and Teran’s concerted activities and support for the Union contributed to their termination. Instead, Respondent maintained that their terminations were simply part of a downsizing it needed to do in order to reduce work hours under its contract with the Mall. Faced with eliminating 40,000 work hours from what had been 260,000 work hours over the course of the year, Respondent eliminated its overnight shift, switched some employees from full-time to part-time, but claimed that it still needed to termi- nate the employment of at least 4 employees. Padell described the process of choosing which 4 employees to terminate as one in which Respondent evaluated “the overall package of each employee—overall performance, attitude, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 6 time, and attendance.” Although Padell mentioned attitude as a part of the criteria, when asked about this, Cabrera denied that was a major part of the evaluation. Neither Teran nor Varela had received any written discipline or write-ups during their entire tenure working for Respondent. They also were given no warning that they were at risk of ter- mination, nor had either been previously advised that they were among Respondents poorest performers. This was in contrast to Respondent’s practice of issuing written discipline to other employees for infractions ranging from attendance issues to insubordination. In addition, unlike the other two employees who were terminated, Teran and Varela both had relatively long tenure working for Respondent. In addition, Varela had previously received personal praise for his outstanding work from Padell and from both Dombroffs. Varela had also been offered a supervisory position by Padell as recently as February 2022, four months prior to his termina- tion. III. CREDIBILITY DETERMINATIONS My factual findings set forth above are based on my observa- tions of witnesses’ testimonial demeanor.4 I found employee Varela to be a very credible witness. He testified consistently on direct and cross examination. He had specific recollection of the events and answered the questions asked of him directly. He had no difficulty recalling facts, but never sounded re- hearsed. I found employee Teran to be credible as well. His demean- or was not as engaging as that of Varela, and his unhappiness over the way he felt treated by the employer was apparent at multiple points during his testimony. But, he was also very clear in recalling specific facts, and candid when he did not have an exact recollection, e.g. regarding specific dates. Former American Dream Housekeeping Supervisor Gloria Castellanos was likewise a very credible witness. With nothing to gain by her testimony, she clearly and straightforwardly described her interaction with Teran in the presence of Brito, her conversation with Brito, and the substance of her conversa- tion with Alarcon. Her testimony was consistent on direct and cross, and I found her demeanor to be candid at all times. I also found employee Luz Esther Herrera to be credible in her limited testimony. Though she did not have first-hand knowledge of the employer’s threats she conveyed to Varela, her description of what she heard was clear and concise, and she portrayed no hesitation in stating what she knew and did not know. And I found Union Organizer Claudio Saldaña’s limited tes- timony to be credible, in particular when he testified about his communications with Varela, and his observations of employ- ees at the Mall. By contrast, I did not find Respondent’s Director of Opera- tions Padell to be credible. While he was affable and demon- 4 Where credibility resolution is not based on observations of wit- nesses' testimonial demeanor, the choice between conflicting testimo- nies rests on the weight of the evidence, established or admitted facts, inherent probabilities, and reasonable inferences drawn from the record as a whole. Taylor Motors, Inc., 366 NLRB No. 69 slip op. 1 at fn. 3 (2018); Lignotock Corp., 298 NLRB 209, 209 fn. 1 (1990). strated a wide knowledge of the workings of the Mall and Re- spondent’s business, when testifying about the decision process for the terminations in question, he became cautious and defen- sive. He appeared at pains to reconcile the contradiction be- tween his effusive praise of Varela in the past and the ultimate determination that he should be let go. And he had no explana- tion for the lack of any written documentation of the claimed evaluation of 100-plus employees in multiple dimensions, in- cluding their “attitude.” Likewise, I did not find Respondent’s Assistant Director of Operations, Shirley Cabrera, to be credible. She too was defen- sive, and in particular when confronted with Padell’s testimony that employee “attitude” was a consideration in making the decision to terminate Teran and Varela, seemed hesitant in denying that it was really a factor. Hillel Dombroff was not a credible witness, and seemed al- most cagey in discussing his own role and that of his father’s in Respondent’s business and its founding. He was similarly de- fensive and evasive when confronted about the Mall’s views of Union organizing. I did not find Elitha Brito to be a credible witness. She ap- peared rehearsed to deny any notion that Respondent was aware of the Union activity at the Mall, and her claimed lack of recol- lection of Teran’s speaking with Castellanos about the Union did not ring true. Likewise, her description of her interactions with employees at the June 22 meeting were not credible. Supervisor Juan Cortes Rivera’s testimony was too short to demonstrate credibility or otherwise. He did not waver on his denial that he ever told an employee that Padell and Cabrera were looking for excuses to fire Teran and Varela. But, he also acknowledged that he did share rides to work with the employ- ee who attributed that statement to him, which lends some cre- dence to that employee’s story. Finally, I did not find Eileen Alarcon credible. She too seemed rehearsed to deny any and all suggestion that either Respondent or the Mall knew about the Union activity taking place to the point where she not only denied speaking with Castellanos about the Union’s presence, but denied that she would ever even have such a conversation, which is nonsensi- cal in light of Castellanos’s position at the time. ANALYSIS Respondent violated 8(a)(3) and 8(a)(1) of the Act on June 26, 2022, when it discharged Teran and Varelo, and Respondent has not met its Wrightline burden. In determining the lawfulness of adverse employment ac- tions where an employer’s motivation is at issue, the Board continues to rely on the test set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must first make an initial prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employ- er's decision. Wright Line, 251 NLRB 1083 (1980), 10 enfd. 662 F.2d 889 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). See Coastal Sunbelt Produce, Inc. & Mayra L. Sagastume, 362 NLRB No. 126, slip op. at 1 HSA CLEANING INC. 7 (2015). Establishing unlawful motivation requires proof that: “(1) the employee engaged in protected activity; (2) the employer was aware of the activity; and (3) the animus toward the activity was a substantial or motivating reason for the employer’s ac- tion.” Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007), enfd. 577 F.3d 467 (2d Cir. 2009). If the General Counsel makes that showing, the burden shifts to the employer to “demonstrate that the same action would have taken place even in the absence of the protected conduct.” Septix Waste, Inc., 346 NLRB 494, 496 (2006). An employer “cannot simply present a legitimate reason for its action, but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected activity.” W.F. Bolin Co., 311 NLRB 1118, 1119 (1993). The employer’s burden also cannot be satisfied by proffered reasons that are found to be pretextual, i.e., false reasons or reasons not in fact relied upon. Indeed, where the reason put forth by the employer for the adverse action either did not exist or was not actually relied on, the inference of unlawful motiva- tion not only remains intact, but is reinforced. Intertape Poly- mer Corp., 372 NLRB No. 133 (2023). Here, I find that both Teran and Varela had engaged in both Union activity and other protected concerted activity. In Ter- an’s case, he spoke on behalf of his fellow workers at the March 2022 meeting, spoke with other employees about work- ing conditions and the Union and later delivered a Union busi- ness card to Castellanos in the presence of Brito. I also find that Varela was engaged in protected concerted activity when he complained to Elita Brito regarding her start of morning meetings prior to employees’ shift start time, and then was the lead employee organizer in meeting with Saldaña, and organizing employees to sign a union petition. I further find that Varela was engaged in protected concerted activity when he complained to Shirley Cabrera regarding her intention to terminate employees’ coffee break. As such, I find that the General Counsel conclusively proved the first element of its prima facie case for both Teran and Varela. Moving to the second element, Respondent was obviously aware of Teran’s protected activity in March 2022 and Varela’s protected activity on June 22, as both took place in the presence of Respondent’s supervisors. In addition, I find that Respond- ent was aware of Teran’s and Varela’s Union activity by virtue of the fact that its supervisors were present for much of that activity, both Union and other protected concerted actions. Both Padell and Cabrera were witness to Teran and Varela speaking up on behalf of their coworkers, and Brito and Cabre- ra each were present for Varela raising collective complaints. I have also found that Brito was present when Teran handed Castellanos Saldaña’s union business card. Therefore, there can be no doubt that the General Counsel al- so proved the second element of its prima facie case. As to the third element of the General Counsel’s prima facie case, it is longstanding Board law that animus need not be proven by direct evidence; it can be inferred from the record as a whole. Fluor Daniel, Inc., 304 NLRB 970 (1991). I find the combination of timing and pretext demonstrate that Respond- ent’s actions were in retaliation for Teran’s and Varela’s pro- tected concerted activity protected by the Act. In addition, I find Respondent’s pretextual claim, discussed below, that their terminations were part of a necessary downsiz- ing and that Teran and Varela were 2 of the 4 lowest perform- ing cleaners to be further evidence of animus in this case. Tak- ing all these together, I find more than sufficient evidence to demonstrate Respondent’s animus. See BS&B Safety Systems, LLC, 370 NLRB No. 90 (2021), where the Board found that the General Counsel met its burden of proving Respondent’s ani- mus “rely[ing] only on the timing of the discharge and evidence of pretext as found by the judge.” Accordingly, having met all three elements, protected activi- ty, knowledge, and animus motivating the terminations of Ter- an and Varela, I find that General Counsel has met its prima facie burden that the discharges were unlawful. I further find that Respondent has not met its burden to demonstrate that the same action would have taken place not- withstanding the protected conduct. Indeed, I specifically find that these employees would not have been discharged were it not for their having engaged in protected concerted activity, and that Respondent’s claim that these two individuals were terminated as part of a restructuring is mere pretext. Just 1 week after these employees were allegedly let go due to downsizing on June 26, 2022, on July 1, 2022, Respondent hired a new cleaner, Evans Medrano.5 This fact directly con- tradicts the claim that Respondent was forced to let Varela and Teran go due to budget constraints. That timing, given the total- ity of the circumstances in this case, cannot be ignored. Respondent’s further claim that Varela and Teran were let go because they were ranked lowest among the 100-plus employ- ees in the assessments it allegedly conducted is belied by the fact that as recently as four months earlier, Varela was being considered for promotion to supervisor, and further belied by the fact that neither employee had any written records of disci- plines or warning for their work. Where an employer’s proffered reasons are pretextual - ei- ther false or not actually relied on - the employer fails by defi- nition to meet its burden of showing it would have taken the same action for those reasons absent the protected activity. See Boothwyn Fire Co. No. 1, 363 NLRB No. 191, slip op. at 7 (2016); Pro-Spec Painting, Inc., 339 NLRB 946, 949 (2003); and Hays Corp., 334 NLRB 48, 49 (2001). I find Respondent’s proffered reasons for Teran’s and Varela’s terminations to be disingenuous considering the totality of the circumstances here, and therefore, find this defense to be pretext for its unlawful termination in retaliation for their protected activity. Therefore, I find that Respondent has not met its burden un- der Wright Line, and that it cannot prove it would have taken the same action against these employees in the absence of their protected activity. I find that their Union and protected con- certed activity were a substantial and motivating reason for their terminations, and that Respondent failed to demonstrate 5 Respondent had also hired new cleaners in both April and May 2022, despite claiming to have been aware since March 2022 that they needed to downsize. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 that it would have taken the same action even in the absence of the protected conduct. Accordingly, I find that Respondent violated Section 8(a)(3) and (1) of the Act when it terminated Teran and Varela on June 26, 2022, and therefore, recommend that they be made whole for the unlawful actions taken by Respondent. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. On or about June 26, 2022, Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully terminating the em- ployment of Jose Teran and Luis Varela in retaliation for their union activity and other protected concerted activity. 4. The above violation is an unfair labor practice within the meaning of the Act. REMEDY As I have concluded that the Respondent engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Respondent, having discriminatorily disciplined Jose Teran and Luis Varela, must rescind its unlawful discipline, offer Teran and Varela reinstatement and make them whole for any loss of earnings and other benefits resulting from that discrimination. Backpay shall be computed in accordance with F. W. Wool- worth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). The Respondent shall also file a report with the Social Security Administration allocating backpay to the appropriate calendar quarters and shall also compensate the discriminatee for the adverse tax consequences, if any, of re- ceiving one or more lump-sum backpay awards covering peri- ods longer than 1 year. Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB 101 (2014). In addition to the backpay-allocation report, Respondent shall file with the Regional Director for Region 22 a copy of Teran and Varela ’s corresponding W-2 form(s) reflecting the backpay award. Cascades Containerboard Packaging, 370 NLRB No. 76 (2021). In addition, Respondent is ordered to reimburse Teran and Varela for all search-for-work-related expenses regardless of whether they received interim earnings in excess of these expenses overall or in any given quarter. King Soopers, Inc., 364 NLRB 1153 (2016). Additionally, in accordance with Thryv, Inc., 372 NLRB No. 22 (2022), Respondent shall also compensate Teran and Varela for any other direct or foreseeable pecuniary harms incurred as a result of the unlawful discharge. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended6 6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt- ORDER The Respondent, HSA Cleaning Inc., its officers, agents, and representatives, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any em- ployee because they support the Union and engage in concerted activities, or to discourage other employees from engaging in these activities; (b) In any like or related manner, interfering with, restrain- ing, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of the Board’s Order, offer Jose Teran and Luis Varela full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (b) Make Jose Teran and Luis Varela whole for any loss of earnings and other benefits, and for any other direct or foresee- able pecuniary harms suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision, plus reasonable search-for-work and interim em- ployment expenses regardless of whether those expenses ex- ceed her interim earnings. (c) Compensate Jose Teran and Luis Varela for the adverse tax consequences, if any, of receiving a lump-sum backpay award, and file with the Regional Director for Region 22, with- in 21 days of the date the amount of backpay is fixed, either by agreement or Board order, a report allocating the backpay award to the appropriate calendar year. (d) File with the Regional Director for Region 22 a copy of Jose Teran’s and Luis Varela’s corresponding W-2 form(s) reflecting the backpay award. (e) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Jose Teran and Luis Varela and, within 3 days thereafter, notify them in writing that this has been done and that the discharge will not be used against them in any way. (f) Preserve, and within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment rec- ords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (g) Within 14 days after service by the Region, post at its lo- cation in East Rutherford, NJ the attached notice marked “Ap- pendix.”7 Copies of the notice, on forms provided by the Re- ed by the Board and all objections to them shall be deemed waived for all purposes. 7 If the facility involved in these proceedings is open and staffed by a substantial complement of employees, the notices must be posted within 14 days after service by the Region. If the facility involved in these proceedings is closed due to the Coronavirus Disease 2019 (COVID-19) pandemic, the notices must be posted within 14 days after HSA CLEANING INC. 9 gional Director for Region 22 after being signed by the Re- spondents’ authorized representatives, shall be posted by the Respondents and maintained for 60 consecutive days in con- spicuous places including all places where notices to employees are customarily posted. In addition to the physical posting of paper notices, the notices shall be distributed electronically, such as by email, posting on an intranet or internet site, and/or other electronic means, if the Respondents customarily com- municate with its employees by such means. Reasonable steps shall be taken by the Respondents to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these pro- ceedings, the Respondents have gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since June 26, 2022. (h) Within 21 days after service by the Region, file with the Regional Director for Region 2 a sworn certification of a re- sponsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. Dated, Washington, D.C. September 28, 2023 APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this no- tice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your be- half Act together with other employees for your benefit and protection Choose not to engage in any of these protected activi- ties. the facility reopens and a substantial complement of employees have returned to work, and the notices may not be posted until a substantial complement of employees have returned to work. Any delay in the physical posting of paper notices also applies to the electronic distribu- tion of the notice if the Respondent customarily communicates with its employees by electronic means. If this Order is enforced by a judg- ment of a United States court of appeals, the words in the notice read- ing “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.” WE WILL NOT do anything to prevent you from exercising these rights. WE WILL NOT discharge or otherwise discriminate against any employee for engaging in activity protected by Section 7 of the Act. WE WILL NOT in any like or related manner, interfere with, restrain or coerce employees in the exercise of their rights un- der Section 7 of the Act. WE WILL, within 14 days from the date of this Order, offer Jose Teran and Luis Varela full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. WE WILL make Jose Teran and Luis Varela whole for any loss of earnings and other benefits, and for any other direct or foreseeable pecuniary harms suffered as a result of the discrim- ination against them, plus reasonable search-for-work and inter- im employment expenses regardless of whether those expenses exceed her interim earnings. WE WILL compensate Jose Teran and Luis Varela for the ad- verse tax consequences, if any, of receiving a lump-sum back- pay award, and file with the Regional Director for Region 22, within 21 days of the date the amount of backpay is fixed, ei- ther by agreement or Board order, a report allocating the back- pay award to the appropriate calendar years, along with a copy of Jose Teran’s and Luis Varela’s corresponding W-2 form(s) reflecting the backpay award. WE WILL within 14 days from the date of this Order, remove from our files any reference to the unlawful discharge of Jose Teran and Luis Varela, and wE WILL within 3 days thereafter, notify them in writing that this has been done. HSACLEANINGINC. The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/22-CA-298853 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by calling (202) 273-1940.