GVS Properties, LLC

National Labor Relations Board - Board Decisions

Aug 27, 2015

362 NLRB No. 194 (N.L.R.B. 2015)

362 NLRB No. 194
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.
GVS Properties, LLC and International Association
of Machinists and Aerospace Workers, AFL–
CIO, District Lodge 15, Local Lodge 447. Case
29–CA–077359
August 27, 2015
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On December 27, 2012, Administrative Law Judge
Kenneth W. Chu issued the attached decision.1 The Re-
spondent filed exceptions and a supporting brief.2 The
General Counsel and the Charging Party each filed an
answering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,3 and conclusions and
to adopt the recommended Order as modified and set
forth in full below.4

1 The judge issued an erratum on February 14, 2013, correcting the
notice of appearance.
2 In his answering brief, the General Counsel contends that the Re-
spondent’s exceptions contain arguments and citations of authority in
contravention of Rule 102.46(b)(1). We have accepted and considered
the Respondent’s exceptions here because the “number of pages of
argument in the exceptions, when added to the pages in the brief, do not
cause the brief to total more than 50 pages.” Hotel Del Coronado, 344
NLRB 360, 360 (2005).
3 The Respondent has implicitly excepted to some of the judge’s
credibility findings. 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. In addition, some of the
Respondent’s exceptions allege that the judge’s rulings, findings, and
conclusions demonstrate bias and prejudice. On careful examination of
the judge’s decision and the entire record, we are satisfied that the
Respondent’s contentions are without merit.
Because the Respondent’s motive is not at issue in this case, we do
not rely on the judge’s finding that the Respondent discharged employ-
ees “in a transparent effort to dilute the Union’s majority and evade its
successorship bargaining obligation.”
4 We shall modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
to provide for the posting of the notice in accord with J. Picini Floor-
ing, 356 NLRB No. 9 (2010), and to conform to our standard remedial
language. Further, we shall substitute a new notice to conform to the
violations found and in accordance with our decisions in Ishikawa
Gasket America, Inc., 337 NLRB 175 (2001), enfd. 354 F.3d 534 (6th
Cir. 2004), and Durham School Services, 360 NLRB No. 85 (2014).
In this case, we consider the proper application of the
successorship doctrine in cases where a new employer is
required, pursuant to a state or local worker retention
statute, to retain its predecessor’s employees for a specif-
ic period of time. Resolution of this issue involves de-
ciding whether the appropriate time to determine succes-
sorship status in these circumstances is when the new
employer assumes control over the business and hires the
predecessor’s employees pursuant to the retention stat-
ute, or after the mandatory retention period has ended.
The judge found that the appropriate time to determine
successorship status in this situation is when the new
employer assumes control over the predecessor’s busi-
ness and hires the predecessor’s employees. He therefore
found that the Respondent, which purchased several
properties in New York City and was required to retain
its predecessor’s employees for at least 90 days under the
city’s Displaced Building Service Workers Protection
Act (DBSWPA), was a Burns successor and that the Re-
spondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to recognize and bargain with the
union that represented the predecessor’s employees.5 For
the reasons explained below, we agree with the judge.
I. FACTS
The facts in this proceeding were largely stipulated
and are not materially in dispute. On or about February
17, 2012, the Respondent purchased several real estate
properties in New York City from Broadway Portfolio I
LLC (“Broadway”).6 Prior to the sale, Broadway had
subcontracted the daily service, maintenance, repair and
upkeep of the properties to Vantage Building Services
LLC (“Vantage”).
Since at least May 1, 2010, the Union has represented
the Vantage employees who performed services at the
properties purchased by the Respondent.7 The most re-

5 See NLRB v. Burns International Security Services, 406 U.S. 272,
280–281 (1972); Fall River Dyeing & Finishing Corp. v. NLRB, 482
U.S. 27, 43 (1987). Under the successorship doctrine, a new employer
that continues its predecessor’s business in substantially unchanged
form and hires employees of the predecessor as a majority of its work
force is a successor with an obligation to bargain with the union that
represented those employees when they were employed by the prede-
cessor. We do not rely on the judge’s characterization of the Board’s
successorship doctrine as holding that “when a business changes hands,
the successor employer must take over and honor the collective-
bargaining agreement negotiated by the predecessor.” See Burns, 406
U.S. at 287–295 (holding that a successor employer is not bound by its
predecessor’s collective-bargaining agreement, and is ordinarily free to
establish its own initial terms and conditions of employment).
6 All dates are in 2012 unless otherwise specified.
7 The unit consists of all full-time superintendents and porters (also
known as maintenance technicians and maintenance assistants, respec-
tively), excluding all other employees, clerical employees, managerial
employees, guards and supervisors as defined in the NLRA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
cent collective-bargaining agreement between the Union
and Vantage covering those employees was effective by
its terms from May 1, 2010, to April 30, 2013.
On February 17, 2012, the day of the purchase, the Re-
spondent distributed to the unit employees a letter an-
nouncing that it would self-manage the properties, and
the employees would no longer have jobs with Vantage.
The letter stated that if the employees wished to continue
working at the properties they should inform the Re-
spondent’s manager of operations. The letter also noti-
fied the employees that all of the terms and conditions of
employment under Vantage were “revoked and nullified
in their entirety”; the Respondent was setting new terms
and conditions of employment; and their employment
would be on a temporary and trial basis for 90 days, after
which time the Respondent would determine its perma-
nent staffing needs. Enclosed with the letter was a mem-
orandum describing the new terms and conditions of em-
ployment.8
On February 18, the Respondent hired seven of the
eight unit employees.9 The parties stipulated that the
Respondent hired the employees pursuant to the
DBSWPA.
In relevant part, the DBSWPA states:
b. (5) A successor employer shall retain for a ninety
(90) day transition employment period at the affected
building(s) those building service employee(s) of the
terminated building service contractor (and its subcon-
tractors), or other covered employer, employed at the
building(s) covered by the terminated building service
contract or owned or operated by the former covered
employer.
(6) If at any time the successor employer determines
that fewer building service employees are required to
perform building services at the affected building(s)
than had been performing such services under the for-
mer employer, the successor employer shall retain the
predecessor building service employees by seniority
within job classification; provided, that during such 90-
day transition period, the successor employer shall
maintain a preferential hiring list of those building ser-
vice employees not retained at the building(s) who shall
be given a right of first refusal to any jobs within their
classifications that become available during that period.

8 Those terms and conditions of employment significantly modified
the wages, hours, and benefits set forth in the unexpired collective-
bargaining agreement between Vantage and the Union. The changes
are not alleged to be unlawful.
9 The Respondent permanently laid off the eighth unit employee.
The layoff is not alleged to be unlawful.
(7) Except as provided in part (6) of this subsection,
during such 90-day period, the successor contractor
shall not discharge without cause an employee retained
pursuant to this section.
(8) At the end of the 90-day transition period, the suc-
cessor employer shall perform a written performance
evaluation for each employee retained pursuant to this
section. If the employee’s performance during such
90-day period is satisfactory, the successor contractor
shall offer the employee continued employment under
the terms and conditions established by the successor
employer or as required by law.
N.Y.C. Admin. Code § 22–505.
By letter dated March 7, the Union requested that the
Respondent recognize and bargain with it as the exclu-
sive collective-bargaining representative of the unit em-
ployees. By letter dated March 13, the Respondent re-
fused. It asserted that the request was premature because
it would not employ a substantial and representative
complement of employees until after expiration of the
90-day transition period mandated by the DBSWPA,
when it would determine whether the unit employees
would be offered permanent employment.
On May 16 and 17, coinciding with the end of the 90-
day transition period, the Respondent discharged three of
the unit employees and hired four new employees.10 As
of May 17, therefore, the Respondent’s work force con-
sisted of four employees who had previously worked for
Vantage and four employees who had not.
II. THE JUDGE’S DECISION
The judge found that the Respondent violated Section
8(a)(5) and (1) of the Act by failing and refusing to bar-
gain with the Union. The judge observed that under the
Supreme Court’s decisions in Burns and Fall River, a
new employer that continues its predecessor’s business
in substantially unchanged form and hires employees of
the predecessor as a majority of its work force is a suc-
cessor, with an obligation to bargain with the union that
represented those employees when they were employed
by the predecessor. The judge noted that on February 18,
the Respondent hired seven of its predecessor’s eight unit
employees to perform the same jobs under the same
working conditions. The judge further noted that on
March 7, the Union timely requested recognition and
demanded bargaining with the Respondent.
The judge rejected the Respondent’s defense that it
was not a Burns successor because it did not choose to
hire its predecessor’s employees, but rather was com-

10 The discharges are not alleged to be unlawful.
GVS PROPERTIES, LLC 3
pelled to do so by the DBSWPA.11 The judge found that
the Respondent made “a conscious decision to retain the
former workforce” when it decided to purchase and as-
sume management of the properties with knowledge of
the requirements of the DBSWPA. The judge rejected
the Respondent’s argument that the successorship deter-
mination could not be made until after expiration of the
90-day transition period, when it was required to offer
continued employment only to those employees whose
performance was satisfactory.
Ultimately, the judge found that the Respondent’s bar-
gaining obligation arose on March 7, when its work force
was composed entirely of the predecessor’s unit employ-
ees and the Union demanded to bargain.
III. DISCUSSION
We agree with the judge that the Respondent became a
Burns successor with an obligation to recognize and bar-
gain with the Union when it assumed control over the
predecessor’s business and hired the predecessor’s em-
ployees. We find no merit in the arguments of the Re-
spondent and our dissenting colleague that the successor-
ship determination could not be made until after the
DBSWPA-mandated retention period had ended. In sup-
port of this argument, the Respondent and our dissenting
colleague rely heavily on selected language in Fall River,
where the Court, referencing Burns, supra, observed that
“the successor is under no obligation to hire the employ-
ees of its predecessor, subject, of course, to the re-
striction that it not discriminate against union employees
in its hiring,” and went on to state:
[T]o a substantial extent the applicability of Burns rests
in the hands of the successor. 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 obligation of
§ 8(a)(5) is activated. This makes sense when one con-
siders that the employer intends to take advantage of
the trained work force of its predecessor.
482 U.S. at 40–41 (emphasis in original; footnote and
citations omitted).12

11 See Burns, 406 U.S. at 287 (“The source of [the new employer’s]
duty to bargain with the union is not the collective-bargaining contract
but the fact that it voluntarily took over a bargaining unit that was
largely intact and that had been certified within the past year.”).
12 The dissent also cites Paulsen ex rel. NLRB v. GVS Properties,
LLC, 904 F.Supp.2d 282, 292 (E.D.N.Y. 2012) (denying the Board’s
petition for 10(j) relief in this case, finding that the Respondent did not
make a voluntary decision to hire its predecessor’s employees because
it was “legally precluded” from terminating them “except on narrow
grounds.”). The dissent correctly recognizes, however, that the opinion
Like the judge in this case, we find that the Respond-
ent made the “conscious” decision required by Burns and
Fall River when it purchased the buildings and took over
the predecessor’s business with actual or constructive
knowledge of the requirements of the DBSWPA.13 We
note that the Court in Burns and Fall River did not have
before it the precise issue presented in this case: whether
a successor bargaining obligation can be imposed on a
new employer that hires its predecessor’s employees
pursuant to a worker retention statute. We see no indica-
tion in the Court’s decisions, however, that it intended to
deny collective-bargaining rights to employees in these
circumstances.
In Fall River, the Court recognized that the Act’s aim
of preserving industrial peace is best served by ensuring
continued representation as early as possible during a
transition between employers. The Court observed that
“a union is in a peculiarly vulnerable position” during the
initial stages of an employer transition, because “[i]t has
no formal and established bargaining relationship with
the new employer, is uncertain about the new employer’s
plans, and cannot be sure if or when the new employer
must bargain with it.” 482 U.S. at 39. The Court there-
fore held that “during this unsettling transition period,
the union needs the presumptions of majority status to
which it is entitled to safeguard its members’ rights and
to develop a relationship with the successor.” Id.
The Court further explained that “[t]he position of the
employees also supports the application of the presump-
tions [of majority support for an incumbent union] in the
successorship situation,” noting that:
If the employees find themselves in a new enterprise
that substantially resembles the old, but without their

of a Federal district court judge in a 10(j) proceeding is not binding on
the Board. Electro-Voice, Inc., 320 NLRB 1094, 1094 fn. 2 (1996).
13 The dissent argues that we have erroneously “conflate[d] the de-
cision to purchase a business with the decision to compose its work-
force.” In our view, where, as here, the decision to purchase a business
inevitably leads to a requirement that employees be retained for a cer-
tain period of time, those decisions are in effect one and the same. It is
settled that a respondent is responsible for the reasonably foreseeable
consequences of its actions. See, e.g., Tile, Marble, Terrazzo Finishers,
Local No. 31 (Standard Art, Marble and Tile Co.), 258 NLRB 1143,
1146 (1981); see generally Radio Officers’ Union v. NLRB, 347 U.S.
17, 44–45 (1954). Here, the Respondent purchased properties subject
to the DBSWPA and then voluntarily chose to manage those properties,
a responsibility that the prior building owner contracted out to the pre-
decessor employer, Vantage. It was certainly reasonably foreseeable
that purchasing a building subject to the DBSWPA and then assuming
responsibility for the management of the building would lead to a re-
quirement that the predecessor’s work force be retained. In these cir-
cumstances, we find that the Respondent’s decision to take over the
business of the predecessor and assume responsibility for the manage-
ment of the buildings was tantamount to a decision to retain the prede-
cessor’s employees, at least for the period required by the DBSWPA.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
chosen bargaining representative, they may well feel
that their choice of a union is subject to the vagaries of
an enterprise’s transformation. This feeling is not con-
ducive to industrial peace.
482 U.S. at 39–40.
In short, the thrust of the Court’s decision in Fall River
is that stability in labor relations and the free flow of
commerce during a transition between employers are best
achieved by protecting existing bargaining rights. The
position advanced by the Respondent and the dissent is
sharply at odds with that rationale. Under their view,
employees who are performing the same jobs under the
same conditions after an employer transition would have
their legitimate expectation of continued representation
thwarted solely because the employer is subject to a state
or local worker retention statute. We do not believe the
Court intended such a result, which would deprive em-
ployees of their bargaining rights “during this unsettling
transition period.” Id. at 39.
The dissent contends that this denial of bargaining
rights is necessary to avoid upsetting the careful balance
struck by the Court in Burns and Fall River between “the
interest of the successor in its freedom to structure its
business and the interest of the employees in continued
representation by the union.” Fall River, 482 U.S. at 41.
However, this argument confuses the impact of the
worker retention statute with the impact of the bargaining
obligation. It is the worker retention statute, not the im-
position of a bargaining obligation that restricts the em-
ployer’s right to make changes in the composition of the
work force. Imposing a bargaining obligation in these
circumstances merely implements the express mandates
of Sections 8(a)(5) and 9(a) of the Act, without interfer-
ing in any way with the “rightful prerogative of own-
ers independently to rearrange their businesses.” 482
U.S. at 40.
We also find no merit in the argument of the Respond-
ent and the dissent that the successorship determination
should be delayed until after the mandatory retention
period has run because of the possibility that the employ-
er’s chosen work force at that time will lack a majority
complement of the predecessor’s employees. The dissent
argues, in this respect, that “[t]he short delay--here, a
mere 90 days--would not unduly burden unions,” and
would avoid foisting the union on the employer’s even-
tual work force. The dissent’s approach, however, “fails
to take into account the significant interest of employees
in being represented as soon as possible,” an interest
which is “especially heightened” in a case like the pre-
sent one “where many of the successor’s employees, who
were formerly represented by a union, find themselves
after the employer transition in essentially the same en-
terprise, but without their bargaining representative.”
482 U.S. at 49.
Consistent with this rationale, the Board has long held
that the successorship determination is not affected by
the temporary or probationary status of the predecessor’s
employees in the successor’s work force, and it has
found it inappropriate to defer successorship determina-
tions until after the completion of employer-imposed
probationary periods. See, e.g., Windsor Convalescent
Center of North Long Beach, 351 NLRB 975, 978, 1000
(2007) (affirming judge’s finding that “[e]stablishment of
a 90-day employee probationary period does not create
doubt about the makeup of a work force sufficient to
defer a work-force-continuity determination until after
completion of the 90-day period”), enf. denied in part on
other grounds, 570 F.3d 354 (D.C. Cir. 2009); Sahara
Las Vegas Corp, 284 NLRB 337, 337 fn. 4, 343–344
(1987) (affirming judge’s finding that 90-day probation-
ary period had “no legally cognizable significance” on
the successor’s bargaining obligation), enfd. 886 F.2d
1320 (9th Cir. 1989); The Clarion Hotel-Marin, 279
NLRB 481, 490 (1986) (rejecting the employer’s claim
that successorship status could not be determined until
the expiration of a probationary period), enfd. 822 F.2d
890 (9th Cir. 1987); Denham Co., 218 NLRB 30, 31–32
(1975) (rejecting argument that new employer could not
accurately gauge the composition and extent of union
representation in its ultimate work force until expiration
of 30-day mandatory retention period; “even if these em-
ployees were truly considered . . . ‘probationary’ during
the first 30 days, they were, nonetheless, ‘employees’
under the Act, for whom, we hold, Respondent had an
obligation to bargain”).
Significantly, in both Clarion and Denham, the em-
ployer was compelled to retain the predecessor’s em-
ployees by the provisions of a contract of sale. In
Denham, for instance, “[o]ne of the express conditions of
takeover imposed by [the predecessor] was that Re-
spondent retain [the predecessor’s] employees for a min-
imum period of 30 days.” Denham, supra, at 31. In find-
ing that the respondent was a successor as of the date of
the takeover, the Board attached no significance to fact
that the respondent was compelled to retain the employ-
ees by the conditions imposed by the predecessor, rather
than making the retention decision independently. The
Board found continuity of the work force based solely on
the fact that a sufficient number of predecessor employ-
ees had been retained by the successor. Id. at 31–32. In
Clarion, the Board likewise found the respondent to be a
successor notwithstanding that the retention of the prede-
GVS PROPERTIES, LLC 5
cessor’s employees was compelled by contract. Clarion,
supra, at 489–490.14
We see no reason to depart from our precedent con-
cerning probationary periods and compelled retention
simply because the probationary period and the employ-
ee retention itself was required by a worker retention
statute, rather than by the employer alone or by contract.
The record establishes that the predecessor’s employees
all had a prospect of continued employment based on
performance. Although the Respondent did not retain a
sufficient number of its predecessor’s employees to con-
tinue the Union’s majority status, there is no reason to
assume that that will generally be so. It is at least as like-
ly that employers in this situation will choose to retain a
substantial number of the predecessor’s employees in
order to take advantage of their knowledge and expertise,
instead of hiring new and inexperienced employees.
Accordingly, as with employer-imposed probationary
periods, the temporary or probationary nature of em-
ployment during the mandatory retention period of
worker retention statutes does not create doubt about the
eventual makeup of the work force sufficient to outweigh
“the significant interest of employees in being represent-
ed as soon as possible,” Fall River, supra, at 49, or defeat
the bargaining obligation long established by our cases
under similar circumstances.
Our dissenting colleague claims that our decision will
result in “a sea change in our nation’s labor law” by
“obliterat[ing] . . . the Burns right [to unilaterally set ini-
tial terms and conditions of employment], solely because
a local retention ordinance is in place.” See Burns, 406
U.S. at 294–295 (“Although a successor employer is or-
dinarily free to set initial terms on which it will hire the
employees of a predecessor, there will be instances in
which it is perfectly clear that the new employer plans to
retain all of the employees in the unit and in which it will
be appropriate to have him initially consult with the em-
ployees’ bargaining representative before he fixes
terms.”). The dissent contends that “[i]t is perfectly clear

14 Our dissenting colleague attempts to distinguish these cases on
the basis that the employees’ probationary status was imposed unilater-
ally by the successor or as a result of a sales agreement negotiated by
the successor, whereas the Respondent in this case took no similar
voluntary action, but rather was compelled to retain its predecessor’s
employees for a period of 90 days under the DBSWPA. As indicated
above, however, we find that the Respondent made a conscious or
voluntary choice to retain its predecessor’s employees when it pur-
chased the buildings and took over the predecessor’s business with
actual or constructive knowledge of the requirements of the DBSWPA.
Clearly, the Respondent could have chosen either not to purchase the
buildings or not to assume responsibility for managing the buildings.
The Respondent could also have chosen to negotiate with the seller
regarding the effects of the obligation to hire the predecessor’s employ-
ees.
that employers governed by the DBSWPA and like stat-
utes will have to retain all of their predecessor’s employ-
ees,” and it therefore predicts that “even if a local statute
does not mandate retention of employees under the same
terms and conditions of employment they enjoyed with
the predecessor, a successor will have no opportunity to
exercise the Burns right to set new terms.”
The hypothetical posed by the dissent goes far beyond
the scope of the instant case. We do not, as the dissent
suggests, imply--much less hold--that all new employers
subject to worker retention statutes are “perfectly clear”
successors, and we are not “obliterat[ing]” the Burns
right of successor employers to set their employees’ ini-
tial terms. We note, moreover, that such a result would
be inconsistent with the standard established by the
Board in Spruce Up Corp., 209 NLRB 194 (1974), enfd.
529 F.2d 516 (4th Cir. 1975). In Spruce Up, the Board
held that a new employer that expressed a willingness to
hire its predecessor’s employees while at the same time
announcing that it would pay a significantly reduced
commission rate was not a “perfectly clear” successor
within the meaning of Burns. 209 NLRB at 195. The
Board reasoned that “[w]hen an employer who has not
yet commenced operations announces new terms prior to
or simultaneously with his invitation to the previous
work force to accept employment under those terms, we
do not think it can fairly be said that the new employer
‘plans to retain all of the employees in the unit,’ as that
phrase was intended by the Supreme Court,” because of
the possibility that many of the employees will reject
employment under the new terms. Id. The Board there-
fore held that the “perfectly clear” exception of Burns
and the consequent forfeiture of the right to set initial
terms “should be restricted to circumstances in which the
new employer has either actively or, by tacit inference,
misled employees into believing they would all be re-
tained without change in their wages, hours, or condi-
tions of employment, or at least to circumstances where
the new employer . . . has failed to clearly announce its
intent to establish a new set of conditions prior to invit-
ing former employees to accept employment.” Id. (foot-
note omitted). See also Canteen Co., 317 NLRB 1052,
1053–1054 (1995), enfd. 103 F.3d 1355 (7th Cir. 1997)
(clarifying that the initial bargaining obligation is trig-
gered when a successor expresses an intent to retain the
predecessor’s employees without making it clear that
employment will be conditioned on acceptance of new
terms). Consistent with Spruce Up, therefore, employers
subject to worker retention statutes can avoid “perfectly
clear” successor status by announcing new terms and
conditions of employment prior to or simultaneously
with the expression of intent to retain their predecessors’
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
employees. Indeed, this is precisely what happened here
when the Respondent simultaneously offered employ-
ment and announced new terms and conditions of em-
ployment.
Our dissenting colleague also expresses concern that
our decision “could prove the death knell for local work-
er retention statutes” because of the possibility that
courts could find the statutes preempted by the NLRA if
the Board were to find that successorship obligations
may arise before the expiration of the mandatory reten-
tion period. We do not share that concern.
Under the Supremacy Clause of the Constitution, state
law is preempted when Congress has acted to occupy the
field or when state law stands as an obstacle to the ac-
complishment and execution of the full purposes and
objectives of Congress. The Supreme Court has articu-
lated two distinct doctrines addressing the preemptive
effect of the Act. Under Garmon preemption, articulated
in San Diego Building Trades Council v. Garmon, 359
U.S. 236 (1959), “[w]hen it is clear or may fairly be as-
sumed that the activities which a State purports to regu-
late are protected by § 7 of the National Labor Relations
Act, or constitute an unfair labor practice under § 8, due
regard for the federal enactment requires that state juris-
diction must yield.” Id. at 244. That is, states may not
regulate conduct that is arguably protected or prohibited
by the Act. Id. at 246. Under Machinists preemption,
articulated in Machinists Lodge 76 v. Wisconsin Em-
ployment Relations Commission, 427 U.S. 132 (1976),
even conduct that is neither prohibited nor protected un-
der the Act is exempt from state regulation if Congress
intended that the conduct be unregulated and left to the
“free play of economic forces.” Id. at 140–141.
In Washington Serv. Contractors Coalition v. District
of Columbia, 54 F.3d 811 (D.C. Cir. 1995), cert. denied
516 U.S. 1145 (1996), the court considered and rejected
a claim that the District of Columbia Displaced Workers
Protection Act of 1994 (DWPA), a worker retention stat-
ute similar to the DPSWPA, was preempted by the
NLRA.15 The court found Garmon preemption inappli-
cable because the DPWA “raises no issue that the NLRB
would have jurisdiction to decide under Sec. 7” and the
DPWA does not encompass any matter “even arguably
regulated by Sec. 8.” 54 F.3d at 816. The court went on
to find that the DWPA would not be preempted under

15 In Washington Serv. Contractors, the service contractors argued
that the DWPA was preempted by the NLRA because (1) by requiring
that the predecessor’s employees be retained, the DWPA improperly
attempts to mandate that employers become “successor” employers
obliged to bargain with the union that represented their predecessor’s
employees, and this was an impermissible state incursion into the col-
lective-bargaining process regulated by federal law, and (2) the DPWA
improperly regulates contractors’ rights to hire whomever they wish.
Machinists even if the Board were to take the position
that successorship can be found before the expiration of
the mandatory retention period, as we find in this case.
The court found that there would be no conflict between
the retention statute and the Act because such a ruling
“would presumably represent the Board’s judgment that
enforcing its successorship requirements in the context of
DWPA hires would be congruent with the aims of the
NLRA.” Id. at 817. The court further stated:
Moreover, even if the NLRB’s application of its suc-
cessorship doctrine to DPWA hires could somehow
engender “conflict” between the local and federal Acts,
. . . [w]e cannot imagine any . . . freedom implicitly left
to employers by the NLRA that would be compromised
were the NLRB to require employers to recognize the
union of DPWA hires. Certainly the NLRA contains
no implicit right of an employer to refuse to hire em-
ployees on the basis of union membership, or to refuse
to recognize a union approved by the majority of its
employees. . . . Application of the successorship doc-
trine under the DPWA therefore would not require the
employer to do anything that it has a right under the
NLRA to refuse.
Id.
The court rejected the argument, also raised here, that
“the NLRA demonstrates Congress’s desire that hiring
decisions be left to the ‘free play of economic forces.’”
Id. The court stated that Machinists preempts only those
local laws that “disturb the labor dispute resolution sys-
tem established by the NLRA.” Id. Citing Metropolitan
Life Ins. Co. v. Massachusetts, 471 U.S. 724, 754 (1985),
the court observed that Machinists preemption does not
apply to “employee protective legislation having nothing
to do with rights to organize or bargain collectively.” Id.
at 818. Relying in part on the D.C. Circuit’s decision in
Washington Serv. Contractors, the U.S. District Court
for the Eastern District of New York similarly deter-
mined that the DBSWPA, the ordinance at issue in this
case, is not preempted by the NLRA. Alcantara v. Allied
Properties, 334 F.Supp.2d 336 (E.D. N.Y. 2004)
(DBSWPA not preempted by the NLRA, in part because
the DBSWPA does not “regulate economic self-help
activities.”). Id. at 344–345.
Our dissenting colleague agrees with the dissent in
Washington Serv. Contractors that local retention stat-
utes would be preempted by the NLRA were the Board
to decide, as we do today, that successorship obligations
may arise before the expiration of the statutory mandato-
ry retention period. Although we recognize that possibil-
GVS PROPERTIES, LLC 7
ity,16 we do not view it as sufficient reason for us to
carve out a special exception in our successorship juris-
prudence. Our finding that Burns successorship obliga-
tions may arise before the expiration of a mandatory re-
tention period is consistent with our case law under
which Burns successorship is determined based on the
nature of the successor’s business and the composition of
the successor’s work force. As discussed above, we con-
tinue to view as immaterial the business or legal reasons
that may underlie the successor’s retention of the prede-
cessor’s employees, and the possibility that those em-
ployees may not survive a probationary period.17
For these reasons, we agree with the judge that the Re-
spondent was a Burns successor and that it violated Sec-
tion 8(a)(5) and (1) of the Act by its refusal, on and after
March 7, to recognize and bargain with the Union.
ORDER
The National Labor Relations Board orders that the
Respondent, GVS Properties, LLC, New York, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with
the International Association of Machinists and Aero-
space Workers, AFL–CIO, District Lodge 15, Local
Lodge 447 (Union) as the exclusive collective-bargaining
representative of the employees in the bargaining unit.
(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 exclu-
sive collective-bargaining representative of the employ-
ees in the following appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All full-time superintendents and porters (also known
as maintenance technicians and maintenance assistants,
respectively) and excluding all other employees, cleri-
cal employees, managerial employees, guards and su-
pervisors as defined in the National Labor Relations

16 See Rhode Island Hospitality Assn. v. City of Providence, 667
F.3d 17 (1st Cir. 2011); see also California Grocer’s Assn. v. City of
Los Angeles, 52 Cal.4th 177, 207–208 (2011), cert. denied 132 S.Ct.
1144 (2012); Paulsen ex rel. NLRB v. GVS Properties, LLC, supra.
17 We deny the Respondent’s request that we apply our holding pro-
spectively only. Our decision does not amount to a change in the
Board’s successorship analysis. Even assuming arguendo that it does,
the Respondent has failed to establish that our usual practice of apply-
ing our holding to the parties in the case in which it is announced would
“work a manifest injustice.” See Pattern Makers (Michigan Model
Mfrs.), 310 NLRB 929, 931 (1993) (quotations omitted).
Act, employed at the following addresses located in
New York, New York: 601 West 139th Street (a/k/a
3421 Broadway); 614 West 157th Street; 600 West
161st Street (a/k/a 3851 Broadway); 559 West 164th
Street; 701 West 175th Street; 700 West 176th Street;
and 667 West 177th Street (a/k/a 4180 Broadway).
Within 14 days after service by the Region, post at all
the New York, New York facilities, to wit: 601 West
139th Street (a/k/a 3421 Broadway); 614 West 157th
Street; 600 West 161st Street (a/k/a 3851 Broadway);
559 West 164th Street; 701 West 175th Street; 700 West
176th Street; and 667 West 177th Street (a/k/a 4180
Broadway), copies of the attached notice marked “Ap-
pendix.”18 Copies of the notice, on forms provided by
the Regional Director for Region 29, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
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 business or
closed the facility involved in these proceedings, the Re-
spondent 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 March 7, 2012.
Within 21 days after service by the Region, file with
the Regional Director of Region 29 a sworn certification
of a responsible official on a form provided by the Re-
gion attesting to the steps that the Respondent has taken
to comply.
Dated, Washington, D.C. August 27, 2015
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD

18 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
MEMBER JOHNSON, dissenting.
The issue before the Board in this case is one of first
impression: whether an employer that is compelled to
hire its predecessor’s employees under a mandatory
worker retention statute is a Burns1 successor. My col-
leagues find that the Respondent is a Burns successor
and impose a bargaining obligation on it. In so doing,
they permit a municipal government to assume the
Board’s statutory responsibility to determine Federal
successorship law under the Act, an unprecedented case
of “reverse preemption.” In my view, the only proper
standard is to wait to apply the Board’s successorship
doctrine until after the statutorily mandated retention
period has run. At that point, the Board would evaluate
the voluntary decisions of the new employer, as the Su-
preme Court instructs. Doing so here, I find that the Re-
spondent is not a Burns successor. Accordingly, I re-
spectfully dissent.
I.
On or about February 17, 2012, the Respondent pur-
chased several real estate properties that were covered by
the New York City Displaced Building Service Workers
Protection Act (DBSWPA), which required the Re-
spondent, with limited exceptions, to retain its predeces-
sor’s employees for a period of 90 days. Based on opera-
tional needs, the Respondent initially hired seven of its
predecessor’s eight employees. At the end of the 90-day
retention period, it terminated three of those employees
and hired four outside employees, resulting in a work
force lacking a majority complement from the predeces-
sor employer.
In affirming the judge, my colleagues conclude that the
Respondent was a Burns successor because it maintained
a continuity of operations with its predecessor and had
initially hired a majority of its predecessor’s employees.
In part, they reason that the Respondent made a con-
scious decision to purchase a business that was covered
by the DBSWPA and, therefore, made a voluntary deci-
sion to retain its predecessor’s work force.
II.
In reaching this conclusion, my colleagues ignore the
balance of interests struck by the Supreme Court in
Burns and its progeny. In those cases, the Court recog-
nized that incumbent unions and the employees they rep-
resent are particularly vulnerable in successorship situa-
tions and that continuing the presumption of majority
support through to the new employer can promote indus-
trial peace. See Fall River Dyeing v. NLRB, 482 U.S. 27,
38–40 (1987). The Court wished to ensure, however,

1 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
that employee free choice is not unduly impaired. The
Court was also mindful of “the rightful prerogative of
owners independently to rearrange their business.” Fall
River Dyeing, 482 U.S. at 40 (internal quotations omit-
ted). After all, an “employer may be willing to take over
a moribund business only if [it] can make changes in
corporate structure, composition of the labor force, work
location, task assignment, and nature of supervision.”
Burns, 406 U.S. at 287–288; see also John Wiley & Sons,
Inc., v. Livingston, 376 U.S. 543, 549 (1964). For in-
stance, the Court emphasized that a new employer is un-
der no obligation to hire the employees of its predeces-
sor. Fall River Dyeing, 482 U.S. at 41; Howard Johnson
Co. v. Detroit Local Joint Executive Board, 417 U.S.
249, 264 (1974); Burns, 406 U.S. at 280 & fn. 5. Bal-
ancing these interests, the Supreme Court concluded:
to a substantial extent the applicability of Burns rests in
the hands of the successor. 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 obligation of §
8(a)(5) is activated. This makes sense when one con-
siders that the employer intends to take advantage of
the trained work force of its predecessor.
Fall River Dyeing, 482 U.S. at 40–41 (emphasis in original).
The coercive nature of regulation, however, necessari-
ly negates the voluntariness upon which the successor-
ship doctrine is based. Compliance with the DBSWPA is
not a voluntary choice—if an employer does not obey its
commands, it faces monetary penalties and other en-
forcement mechanisms. Examining a local ordinance
similar to the one at issue here, the First Circuit empha-
sized: “[T]he new employer has made no such ‘con-
scious decision,’ nor has the employer ‘intend[ed] to take
advantage’ of the workforce. Rather, it will have been
compelled to continue the employment of the former
business’s employees, subject to conditions, for three
months.” Rhode Island Hospitality ’Assn. v. City of
Providence, 667 F.3d 17, 19 (1st Cir. 2011) (alteration in
original); see also Paulsen v. GVS Properties, LLC, 904
F.Supp.2d 282, 290–292 (E.D.N.Y. 2012) (denying Sec-
tion 10(j) injunctive relief in this case in part because the
Respondent did not make a voluntary and conscious de-
cision to hire a majority of its predecessor’s employees).
By forcing the Respondent to recognize and bargain with
the Union based upon decisions it was coerced into mak-
ing by the DBSWPA, the majority allows a local gov-
ernment to place its thumb on the scale in favor of in-
cumbent unions, simply because they are incumbents,
and thereby to upset the balance struck by the Supreme
Court. No longer is “the rightful prerogative of owners
GVS PROPERTIES, LLC 9
independently to rearrange their business”--an interest
the Court was “careful to safeguard”2--of any conse-
quence.
Remarkably, the majority finds that an employer
makes a voluntary decision to hire its predecessor’s em-
ployees when it decides to purchase a business that is
subject to a local worker retention statute , arguing that
the former is “reasonably foreseeable” under these cir-
cumstances. Their conclusion erroneously conflates the
decision to purchase a business with the decision to
compose its work force. As the judge stated in his opin-
ion denying the 10(j) petition in this case
[T]he choice that Burns was focused on was not the
voluntary decision to purchase a business or a piece of
one, but the employer’s voluntary decision to substan-
tially assume its predecessor’s employment force. That
is the proper question because we are dealing with an
issue of labor relations, not the myriad of other consid-
erations that might drive an employer to enter into a
transaction. 3
Because of this error, the majority fails to recognize
that an employer can make a voluntary choice as to the
former decision, without making a voluntary choice as to
the latter. Cf. United Steelworkers of Am. v. St. Gabri-
el’s Hosp., 871 F.Supp. 335, 341 (D. Minn. 1994) (re-
jecting the argument that an employer voluntarily as-
sumes the collective-bargaining agreement of its prede-
cessor by purchasing a business subject to a state statute
forcing it to do so).
For support, my colleagues cite the Board’s long-held
position that successorship determinations are not affect-
ed by the temporary or probationary status of the prede-
cessor’s employees in the successor’s work force. See
Windsor Convalescent Center of North Long Beach, 351
NLRB 975, 978, 1000 (2007), enf. denied in part on oth-
er grounds, 570 F.3d 354 (D.C. Cir. 2009); Sahara Las
Vegas Corp, 284 NLRB 337, 337 fn. 4, 343–344 (1987),
enfd. 886 F.2d 1320 (9th Cir. 1989); The Clarion Hotel-
Marin, 279 NLRB 481, 490 (1986), enfd. 822 F.2d 890
(9th Cir. 1987); Denham Co., 218 NLRB 30, 31–32
(1975). However, in each of the cases cited by the ma-
jority, the employees’ status was either imposed unilater-
ally by the new employer or as a result of the sales
agreement that was negotiated and entered into by the

2 Fall River Dyeing, 482 U.S. at 40.
3 Paulsen, 904 F.Supp.2d at 292. While the opinion of a Federal
district court judge in a Sec. 10(j) proceeding is not binding on the
Board’s subsequent determination of the merits of an unfair labor prac-
tice complaint, I note my complete agreement with Judge Cogan’s
analysis of the successor and preemption law issues presented in this
case.
new employer. Here, however, the Respondent took no
similar voluntary action. The DBSWPA imposes a legal
obligation on the Respondent requiring it to retain its
predecessor’s employees for a period of 90 days, an obli-
gation over which the Respondent had no say.
The majority’s decision will have far reaching conse-
quences. Ironically, it could prove the death knell for
local worker retention statues. By allowing a local stat-
ute to control a matter of Federal labor law, the majority
paves the way for these statutes to run headlong into the
Supremacy Clause of the Constitution. Several courts
have rejected challenges to these statutes on Federal
preemption grounds, but they have entirely predicated
their decisions on the assumption that the Board would
not take the position it does here. See Rhode Island
Hospitality, 667 F.3d at 29; California Grocers Assn. v.
City of Los Angeles, 52 Cal. 4th 177, 205 (2011). Thus,
the Board’s decision today could needlessly undo the
legitimate policy decisions of local governments.4
But even if this particular decision survives in the
courts in the short run, the majority’s willingness to al-
low these types of local statutes to influence the question
of successorship will sharply curtail the rights of succes-
sor employers in the long run. Typically, a successor
employer is free to set the initial terms and conditions on
which it will offer employment to the workers of a pre-
decessor. Burns, 406 U.S. at 294. In some extraordinary
situations, however, it is perfectly clear that the new em-
ployer will retain all of the predecessor’s employees, at
which point the successor must consult with the incum-
bent union prior to fixing the initial terms and conditions.
Id. at 294–295; see also Fall River Dyeing, 482 U.S. at
47 fn. 14; Spruce Up, 209 NLRB 194, 195 (1975), enfd.
per curiam 529 F.2d 516 (4th Cir. 1975). It is perfectly
clear that employers governed by the DBSWPA and like
statutes will have to retain all of their predecessor’s em-
ployees. Cf. Canteen Co., 317 NLRB 1052, 1054 (1995)
(employer deemed perfectly clear successor because it
did not announce new wages until after it indicated it
would hire most employees); Springfield Transit Man-

4 I recognize that a panel majority of the D.C. Circuit observed that,
even assuming the Board were to take the decision it does today, there
would be no conflict between a local retention statute and the Act. See
Washington Serv. Contractors v. Dist. of Columbia, 54 F.3d 811, 817
(D.C. Cir. 1995). In the context of that opinion, the observation was
dictum. Further, for the reasons expressed in the dissenting opinion of
Judge Sentelle in that case, id. at 818–820, I believe the majority was
mistaken in its interpretation of Federal preemption law and Supreme
Court precedent addressing successor employer obligations. Clearly, if
a local government can control the decisions of the employer for pur-
poses of successorship, decisions that are supposed to be voluntary
under federal law of successorship as interpreted by the Supreme Court,
then the notion of federal “supremacy” is turned on its head. The local
tail will be wagging the Federal Supremacy Clause dog.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
agement, 281 NLRB 72, 77–778 (1986). Therefore, even
if a local statute does not mandate retention of employees
under the same terms and conditions of employment they
enjoyed with the predecessor, a successor will have no
opportunity to exercise the Burns right to set new terms
unless it does so prior to contracting to purchase the suc-
cessor’s business. Under the majority’s rationale, then,
the supposedly “extraordinary” Spruce Up exception will
all but eliminate the general Burns right wherever a re-
tention mandate applies, greatly limiting the ability of
employers to restructure a predecessor’s operations in a
manner designed to make them profitable and to ensure
the job security of those whom it chooses to employ.5
Thus, the majority’s obliteration of the Burns right,
solely because a local retention ordinance is in place,
upsets a fundamental balance set by the Act and sets in
motion “reverse pre-emption.” Today’s decision repre-
sents a sea change in our nation’s labor law that neither
Congress intended, nor the Supreme Court’s precedent
permits.
III.
Unlike my colleagues, I believe the Board should re-
tain the balance struck by the Supreme Court in Burns
and its progeny by analyzing the question of successor-
ship after the mandatory worker retention period has run.
Only once the retention period has elapsed is an employ-
er finally able to make a free and conscious decision
about the composition of its work force. The short de-
lay—here, a mere 90 days—would not unduly burden
unions. After all, the Board has long recognized that a
decision regarding successorship need not be made on
day one. Instead, the Board waits to pass judgment until
a “substantial and representative complement” of work-
ers is achieved. See Fall River Dyeing, 482 U.S. at 47.
It is not uncommon for several months to pass before the
employer reaches this level of employment. See, e.g.,

5 Although the judge opines that the Respondent here is not a per-
fectly clear successor, the General Counsel does not allege that it is, as
my colleagues acknowledge. Therefore, the judge’s discussion on this
point is nothing more than dicta.
My colleagues nonetheless share the judge’s view, reasoning that
employers subject to retention ordinances can avoid perfectly clear
successor status by announcing new terms and conditions of employ-
ment prior to, or simultaneously with, the expression of intent to retain
the predecessor’s employees. At the same time, the majority emphasiz-
es that “where, as here, the decision to purchase a business inevitably
leads to a requirement that employees be retained for a certain period of
time,” the Respondent’s decision to purchase and decision to compose
its work force “are in effect one and the same.” The only way for an
employer to avoid being deemed a perfectly clear successor under this
rationale would be for it to announce new terms of employment no later
than the moment it agrees to acquire its predecessor’s business. But it
can hardly be claimed that a successor employer can make an informed
decision about such matters at that point in time.
Myers Custom Products, 278 NLRB 636 (1986) (sub-
stantial and representative complement determined 60
days after the transfer of control).6 This approach also
safeguards the right of the new employer’s chosen work
force. If a majority of the employer’s consciously chosen
work force does not come from the predecessor,7 they
will not have a union foisted on them. Moreover, we
would avoid the pitfalls of the majority’s decision. The
extraordinary perfectly clear successor exception would
remain just that—an extraordinary exception. We would
also protect the legitimate policy choices and goals of
localities, which are to give covered employees a meas-
ure of transitional job security and a chance to prove
themselves to the new employer. My approach harmo-
nizes the Burns right with these underlying goals of the
local statute, rather than subordinating one set of policies
to the other.
Applying this analysis to the instant case, I find that
the Respondent is not a Burns successor. After the man-
datory retention period ran, the Respondent decided to
replace a number of its predecessor’s employees with
outside workers. At that point, a majority of its employ-
ees had never worked for its predecessor and had never
voted for representation by the Union. Imposing a bar-
gaining obligation on the Respondent and its employees
under these circumstances is a serious infringement on
their rights and prerogatives.
Conclusion
My colleagues’ decision today impermissibly gives
state and local jurisdiction control of the determination of
successor obligations under Federal law. By giving con-
clusive effect to state and local mandatory job retention
laws, they actually threaten the abnegation of such laws
under Federal preemption doctrine. They also deny to
most, if not all, employers subject to those laws the rights
which the Supreme Court has carefully articulated and
protected in order to avoid discouraging the interest of
employers in purchasing and saving failing businesses,

6 My colleagues contend that I advocate “a special exception” to the
successorship doctrine. That is not the case. I merely apply the doc-
trine as established by precedent—that the Board will apply the succes-
sorship doctrine once the employer makes a voluntary and conscious
decision as to the nature of its operations and the composition of its
workforce. The unique characteristics of worker retention ordinances,
such as the DBSWPA, necessarily postpone the point at which the
employer is able to make such decisions.
7 See Fall River Dyeing, 482 U.S. at 50, approving as reasonable the
Board’s application of the substantial and representative complement”
rule to determine whether a successor’s bargaining obligation attaches
because at that point in the succession “[t]he employer generally will
know with tolerable certainty when all its job classifications have been
filled or substantially filled, when it has hired a majority of the employ-
ees it intends to hire, and when it has begun normal production.” (em-
phasis added)
GVS PROPERTIES, LLC 11
thereby preventing job losses and the resultant adverse
impact on our national economy. In my view, consistent
with both the Board’s statutory decisional mandate and
the Supreme Court’s well-defined balance of interests in
successor situations, we are required to determine the
Respondent’s bargaining obligation at the point at which
it was legally permitted to exercise its free choice as a
successor employer. At that point, the Respondent opted
not to employ a majority of its predecessor’s employees.
Accordingly, I would find that the Respondent is not a
Burns successor and did not violate Section 8(a)(5) and
(1) when it refused to bargain with the Union. I would
dismiss the complaint.
Dated, Washington, D.C. August 27, 2015
______________________________________
Harry I. Johnson, III, Member
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 fail and refuse to recognize and bargain
with District Lodge 15, Local Lodge 447 of the Interna-
tional Association of Machinists and Aerospace Work-
ers, AFL–CIO as the exclusive collective-bargaining
representative of our employees in the bargaining unit.
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, on request, bargain with the Union as the
exclusive collective-bargaining representative of our
employees in the following appropriate unit concerning
terms and conditions of employment and, if an under-
standing is reached, embody the understanding in a
signed agreement:
All full-time superintendents and porters (also known
as maintenance technicians and maintenance assistants,
respectively) and excluding all other employees, cleri-
cal employees, managerial employees, guards and su-
pervisors as defined in the National Labor Relations
Act, employed at the following addresses located in
New York, New York: 601 West 139th Street (a/k/a
3421 Broadway); 614 West 157th Street; 600 West
161st Street (a/k/a 3851 Broadway); 559 West 164th
Street; 701 West 175th Street; 700 West 176th Street;
and 667 West 177th Street (a/k/a 4180 Broadway).
GVS PROPERTIES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/29-CA-077359 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.
Colleen P. Breslin, Esq. and Genaira L. Tyce, Esq., for the
Acting General Counsel.
Jonathan D. Farrell, Esq., of Mineola, New York, for the Re-
spondent-Employer.
James M. Conigliaro, Jr., Esq., of Brooklyn, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
KENNETH W. CHU, Administrative Law Judge. This case was
tried before me on August 14, 2012,1 in Brooklyn, New York,
pursuant to a complaint and notice of hearing issued by the
Regional Director for Region 29 of the National Labor Rela-
tions Board (NLRB) on May 31. The complaint, based upon a
charge filed on March 23 by the International Association of
Machinists & Aerospace Workers, AFL–CIO, District Lodge
15, Local Lodge 447 (the Charging Party or Union), alleges
that GVS Properties, LLC (the Respondent or Employer), has
engaged in certain violations of Section 8(a)(5) and (1) of the
National Labor Relations Act (NLRA or the Act) by failing and

1 All dates are in 2012 unless otherwise indicated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
refusing to bargain collectively with the Union. The Respond-
ent filed a timely answer to the complaint denying that it had
committed any violations of the Act.2
Issue
The complaint alleges that the Respondent violated Section
8(a)(5) and (1) of the Act when it failed and refused to bargain
collectively with the Union. The issue is whether an employer
who is statutorily mandated to hire its predecessor’s employees
for at least 90 days under the New York City’s Displaced
Building Service Workers Protection Act (DBSWPA) is obli-
gated to bargain with the recognized and exclusive bargaining
representative of its predecessor’s employees.
Posttrial briefs were timely filed by Respondent, Charging
Party, and Acting General Counsel and have been carefully
considered. On the entire record, including my observation of
the demeanor of the witness, and after considering the briefs
filed by the parties, I make the following
Findings of Fact
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent, a New York corporation, engaged in the
ownership of real estate properties in Manhattan, New York,
where it annually derived gross annual revenue in excess of
$500,000 and receives at its New York facilities goods and
supplies valued in excess of $5000 directly from enterprises
located outside of New York State. The Respondent admits and
I find that it is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.

2 In a separate action, the Regional Director of Region 29 of the
NLRB petitioned the United States District Court Eastern District of
New York for a preliminary injunction under the Act Sec.10(j) against
GVS Properties. Paulsen v. GVS Props. LLC, E.D.N.Y. 12-cv-4845
(November 13, 2012). By Memorandum Decision and Order issued by
District Judge Cogan, the injunctive relief petition under §10(j) was
denied and the case dimissed. Subsequently, the Respondent moved to
dismiss this complaint consistent with Judge Cogan’s decision which
found that GVS was not a Burns successor and therefore not obligated
to bargain collectively with the Union. The Acting General Counsel
submitted an opposition to the dismissal motion on November 19. I find
that the 10(j) action was taken independent of the complaint filed with
the Board and the issue before the Board is very different from the
injunctive relief sought in the federal court. The proceeding in the
district court “. . . is merely ancillary and the decision in such proceed-
ing is not res judicata upon the final hearing in a complaint case before
the Board, because in an application for interlocutory and temporary
relief under Sec. 10(j) or 10(l), the court does not undertake to pass
upon the merits of the principle controversy.” DuBosie Chemicals Inc.,
144 NLRB 56, 59 (1963). As a consequence, I find it has no bearing to
the outcome of this trial. I am bound only to apply established Board
precedent which the Supreme Court has not reversed, notwithstanding
contrary decisions by the lower courts. Waco, Inc., 273 NLRB 746,
749 fn. 14 (1984). I deny the Respondent’s motion to dismiss and
render this decision on the merits for the reasons set forth herein. De-
troit Newspaper Agency, 330 NLRB 524, 525 (2000).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent owns real estate properties throughout New
York City. At all material times, the New York facilities at
issue in this case consisted of 601 West 139th Street, 6104
West 157th Street, 600 West 161st Street, 559 West 164th
Street, 701 West 175th Street, 700 West 176th Street, and 667
West 177th Street (hereinafter, the “New York facilities”).
The New York facilities were previously managed by Van-
tage Building Services, LLC and had a collective-bargaining
agreement with the Union (Jt. Exh. 2).3 The previous owner,
Broadway Portfolio I Owner, LLC, sold the New York facilities
to Respondent GVS on or about February 17. Under Respond-
ent, the New York facilities have been managed by Alma Real-
ty Corp (Tr. 18). Since March 7, Respondent has refused to
recognize the Union as the collective-bargaining representative.
B. Stipulated Facts
The complaint alleges that Respondent has failed to recog-
nize and bargain with the Union as the exclusive bargaining
representative since on or about March 7 (GC Exh. 1). As not-
ed, the parties submitted a set of stipulated facts made part of
the record (Jt. Exh. 1).
At all material times until on or about February 17, 2012, the
facilities were managed by Vantage Building Services, LLC
(hereinafter “Vantage”). During the times that Vantage man-
aged the facilities, Vantage employed employees in a bargain-
ing unit described as follows (Jt. Exh. 1, Stipulation par. 7):
All full-time superintendents and porters (also known as
maintenance, technicians and maintenance assistants, respec-
tively) and excluding all other employees, clerical employees,
managerial employees, guards and supervisors as defined by
the Act, employed at the Respondent’s New York facilities.
During all times that Vantage managed these facilities, em-
ployees in the bargaining unit described above were responsible
for the daily service, maintenance, repair, and upkeep of the
New York facilities (Jt. Exh. 1, Stipulation par. 10). At all
material times since at least May 1, 2010, until on or about
February 17, 2012, the Union was the collective-bargaining
representative of employees in the bargaining unit as described
above for the purposes of collective bargaining with respect to
pay, wages, hours of employment and other terms and condi-
tions of employment, and was recognized as such representa-
tive by Vantage. Such recognition was embodied in a collec-
tive bargaining agreement effective from May 1, 2010, to April
30, 2013 (Jt. Exh. 1, Stipulation par. 11).
On or about February 17, Respondent purchased said facili-
ties from Broadway Portfolio I Owner, LLC and on February

3 For ease of reference, testimonial evidence cited here will be re-
ferred to as “Tr.”(Transcript) followed by the page number(s). At trial,
the parties jointly presented a stipulation of facts and referred to as
“Joint Exhibit 1” (Jt. Exh. 1) and entered into the record upon due
review. In addition, Respondent submitted a binder of documents that
was made part of the record as Respondent Exhibit 1 (R. Exh.). Refer-
ences to the documents in R. Exh. 1 are indicated by page numbers.
General Counsel’s exhibits are identified as “GC Exh.”
GVS PROPERTIES, LLC 13
18, Vantage relinquished and Respondent assumed manage-
ment of said facilities through Alma Realty Corp, a real estate
management firm. When Respondent assumed Vantage’s man-
agement operations, there were eight employees who worked in
the unit. Respondent hired seven of the eight unit employees
when it assumed Vantage’s operations (Jt. Exh. 1, Stipulations
pars. 12, 13). The names of the seven unit employees hired by
Respondent are: Elvis Baez, Juan Castillo, Jose Cepeda, Harol
Jimenez-Maderas, Carlos Manuel Laureano, Juan Rivera, and
Roberto Sacaza Diaz.
At all material times since February 18 through on or about
May 17, the employees hired by Respondent were responsible
for the daily maintenance, repair, and upkeep of the New York
facilities. At the time Respondent assumed Vantage’s man-
agement operations on or about February 18, Respondent did
not hire any additional employees within the unit (Jt. Exh. 1,
Stipulations pars. 15 18). At all times since February 18, Re-
spondent has owned the facilities described above and has ex-
ercised day-to-day supervision and control over all matters and
decisions related to the terms and conditions of employment of
the unit. From on or about February 18 through May 17, a
majority of Respondent’s workforce consisted of the employees
employed by Vantage as noted above (Jt. Exh. 1, Stipulations
pars. 19, 21).
Respondent informed the seven unit employees named
above, by separate letters all dated February 17 that they would
no longer be employed by Vantage and that if they wished to
continue working at the properties; they would be required to
inform Nicholas Conway by February 27. At the time, Conway
was employed by the Alma Realty Corp. and was the Opera-
tions Manager for Respondent’s New York facilities (Tr. 18).
The February 17 letters also informed the seven individuals that
all terms and conditions related to their wages, hours, work
rules, and working conditions under Vantage were revoked and
nullified in their entirety. Respondent had unilaterally set forth
new terms and conditions of potential employment for the sev-
en individuals (R. Exh. 1 at 32–39). In pertinent part, the letter
read:
On or about February 18, 2012, GVS Properties, LLC will as-
sume management of the properties located at (the New York
facilities)…Accordingly, effective February 18, 2012, you
will no longer be employed by your current employer—
Vantage Building Services, LLC—to work at these property
(ies).
Should you wish to continue working at the property(ies), you
must contact Nicholas Conway . . . If you do not contact Mr.
Conway by February 27, 2012, GVS Properties will conclude
you do not wish to be considered for work or employed by
GVS Properties and we (GVS Properties) will act according-
ly.
Please realize all terms and conditions related to your wages,
hours, work rules and working conditions with Vantage are
revoked and nullified in their entirety. GVS Properties is
therefore unilaterally and without review setting your initial
terms and conditions of your (possible) employment with
GVS Properties. To the extent any of your prior wages,
hours, work rules and working conditions conflict with the
wages, hours, work rules and working conditions established
by GVS Properties, the wages, hours, work rules and working
conditions by GVS Properties shall govern.4
Employees of Vantage who have applied to GVS Properties
for employment and provided GVS Properties all relevant pa-
perwork will be hired on a temporary and trial basis in ac-
cordance with their prior seniority, within a specific job classi-
fication—as those terms are generally defined in labor rela-
tions—with Vantage. Any former employees of Vantage not
hired by GVS Properties will remain on a preferential hiring
list for such temporary positions for a period of ninety (90)
days, commencing on or about February 18, 2012.
Respondent hired the employees noted above pursuant to the
New York City Displaced Building Service Workers Protection
Act (“DBSWPA”) (Jt. Exh. 1, Stipulations par. 17).
In relevant part, DBSWPA states:
(b)(5) A successor employer shall retain for a ninety (90) day
transition employment period at the affected building(s) those
building service employee(s) of the terminated building ser-
vice contractor (and its subcontractors), or other covered em-
ployer, employed at the building(s) covered by the terminated
building service contract or owned or operated by their former
covered employer.
(b)(6) If at any time the successor employer determines that
fewer building service employees are required to perform
building services at the affected building(s) than had been per-
forming such services under the former employer, the succes-
sor employer shall retain the predecessor building service em-
ployees by seniority within job classification; provided, that
during the 90-day transition period, the successor employer
shall maintain a preferential hiring list of those building ser-
vice employees not retained at the building(s) who shall be
given a right of first refusal to any jobs within their classifica-
tions that become available during that period.
(b)(7) Except as provided in part (6) of this subsection, dur-
ing such 90-day period, the successor contractor shall not dis-
charge without cause an employee retained pursuant to this
section.
(b)(8) At the end of the 90-day transition period, the succes-
sor employer shall perform a written performance evaluation
for each employee retained pursuant to this section. If the
employee’s performance during this 90-day period is satisfac-
tory, the successor contractor shall offer the employee contin-
ued employment under the terms and conditions established
by the successor employer or as required by law. NY Code
§22–505 (Jt Exh 2).
Essentially, DBSWPA requires successor employers to retain
building services employees (nonsupervisory workers) of the

4 The new wages and employee benefits substantially deviated from
the collective bargaining agreement. For example, Respondent reduced
wages for the superintendents from $15 per hour to $10 and for the
Porters from $12 to $8 per hour. In addition vacation time, paid sick
leave, and paid holidays were reduced and welfare benefits were elimi-
nated (R. Exh. 1 at 50, 51).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
predecessor for a period of 90 days subject to termination for
cause or a decision to operate with fewer employees. It also
obligates the purchaser to perform a written performance eval-
uation for each retained employee after the 90 days is complet-
ed, and to offer continued employment to any employee who
receives a satisfactory evaluation. DBSWPA does not require
the new employer to retain the predecessor’s wages, terms and
conditions of employment. DBSWPA contains an opt-out pro-
vision exempting employers who are willing to become subject
to a collective-bargaining agreement that contains provisions
regarding the discharge or layoff of employees. The intent of
DBSWPA is to provide job security to building employees in
New York City by requiring successor building owners to offer
employment to its predecessor’s employees.
Conway testified he was responsible for overseeing the staff,
dealing with tenant issues, and with the hiring and discharging
of employees. He was ultimately responsible for either retain-
ing or terminating the unit employees (Tr. 18, 19). Conway
stated that he offered employment to seven of the eight em-
ployees who were terminated. He stated that the offer of em-
ployment was made because he was required to hire the prede-
cessor’s unit employees under DBSWPA (R. Exh. 32–45); (Tr.
25). He noted that one of the eight unit employees was not
hired.5 Conway stated that the eighth employee was not hired
because he felt that the properties could be maintained with
fewer employees. He testified that DBSWPA allows the suc-
cessor employer to hire fewer employees based upon opera-
tional needs to perform building services (Tr. 29–33).
Conway said that the seven employees hired from the prede-
cessor were considered permanent employees, subject to a 90
day evaluation period (R. Exh. 1 69–104). He specifically testi-
fied that “They were not probationary employees” (Tr. 35).
By letter dated March 7, the Union requested that Respond-
ent recognize and bargain with it as the exclusive collective
bargaining representative of the unit (R. Exh. 1 66). The Gen-
eral Counsel for the Union, James M. Conigliaro, states in his
letter to Conway:
I am writing to you regarding Vantage Building Services,
LLC and your recent assumption of their management re-
sponsibilities. Specifically, the Union has been informed that
you have sent correspondence to its members regarding
changes to their terms and conditions of employment as set
out in their collective bargaining agreement.
As proscribed under federal labor laws and as a result of the
existing collective bargaining agreement with Vantage, the
Union demanded bargaining with your company (GVS Prop-
erties/Alma) regarding the terms and conditions of employ-
ment of its members.
By letter dated March 13, Respondent informed the Union
that it did not recognize the Union as the collective bargaining
representative of employees in the defined unit. Since March 7,
Respondent has refused to recognize and bargain with the Un-
ion as the collective-bargaining representative of the unit (Jt.

5 There are no pending charges and none have been alleged in this
complaint that the nonhiring of the eighth Vantage employee by Re-
spondent was a violation of the NLRA.
Exh. 1, Stipulations pars. 22, 23).
Subsequently, Respondent terminated three of the seven unit
employees at the end of their 90 day evaluation period.6 Re-
spondent terminated Carlos Manuel Laureano and Elvis Baez
on May 16 and Juan Rivera on May 17 (R. Exh. 105–111); (Tr.
at 36–38). Respondent subsequently replaced the three termi-
nated employees by hiring four new employees on May 17 (Jt.
Exh. 1, Stipulations pars. 26, 27). Conway explained that he
hired one additional employee because he felt that one building
was understaffed (Tr. at 41–44).
Respondent has not engaged in collective bargaining with
the Union after hiring the four new employees. Conway testi-
fied that none of the four new employees expressed any interest
to him about joining the Union and that he was not aware if the
Union had asked the new employees to complete dues authori-
zation cards (Tr. at 48, 49).
Discussion and Analysis
A. 8(a)(5) and (1) Allegations
The Acting General Counsel, at Paragraphs 15 and 16 in the
complaint, alleges that the Respondent violated Section 8(a)(5)
and (1) of the Act by refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the defined unit. The Acting General Counsel states that Co-
nigliaro requested on March 7 that Respondent bargain with the
Union regarding the terms and conditions of employment of its
members (the unit) (R. Exh. 1 at 66). The Respondent refused
to recognize and bargain with the Union by letter dated March
13. It is not in dispute that the Union represented the unit em-
ployees of the predecessor. The Acting General Counsel has
maintained that since March 7, the Respondent has failed and
refused to recognized and bargain with the Union.
B. Respondent’s Arguments
The Respondent does not deny that it refused to bargain as
alleged. The Respondent argues that was required to hire the
predecessor’s unit employees under DBSWPA. The Respond-
ent contends that under DBSWPA, it was “. . . legally prohibit-
ed from establishing its initial compliment (sic) of employees
which would (or would not) establish whether the Respondent
was a Burns successor. . .” (See, Respondent’s answer to the
complaint at GC Exh. 1). Respondent informed the Union in a
letter dated March 13, that it did not recognize the Union as the
collective-bargaining representative of the unit employees. In
the letter, counsel for Respondent states:
Please be further advised in accordance with the New York
City Displaced Building Service Workers Protection Act
(“DBSWPA”) (§22–505 of the Administrative Code of the
City of New York), GVS is currently evaluating the perfor-
mance of the former employees of Vantage Building Service
LLC (or its related entities). Upon the conclusion of ninety
(90) day evaluation period, as mandated and set forth in
DBSWPA, GVS will determine its staffing needs as well as
decide who will be offered positions of employment. Accord-
ingly, at this juncture it is unclear whether District 15, Local

6 There is no allegation in this complaint that the discharge of the
three employees on May 16 and 17 was a violation of the NLRA.
GVS PROPERTIES, LLC 15
447 International Association of Machinists and Aerospace
Workers, AFL–CIO (“Local 15”) is a Burns Successor…Said
ninety (90) day evaluation period will conclude on or about
May 17, 2012. Upon the conclusion of the ninety (90) eval-
uation period, and the offer of a more permanent position,
GVS will determine if it has a bargaining obligation with Lo-
cal 15 (R. Exh. 1 at 67, 68).
The Respondent does not dispute the fact that it had hired a
majority of the predecessor’s unit employees. The Respondent
argues it was not a Burns successor. The Respondent contends
that it was not a Burns successor when it hired a majority of the
predecessor’s unit employees “. . . because the hire of the said
employees was required and mandated by DBSWPA and the
Respondent would not have hired a substantial and compliment
(sic) of employees until after March 13, 2012, i.e., some time
after the conclusion of the ninety (90) day DBSWPA period”
(Jt. Exh. 1, Stipulation par. 24). The Respondent maintains that
a Burns successorship results from the voluntary decision of a
new employer to hire a majority of the predecessor’s workforce
and not from a mandate to hire the predecessor’s majority
workforce as required under DBSWPA.
As stipulated, upon the conclusion of the 90 day DBSWPA
period, the Respondent terminated three employees on May 16,
17. Respondent then hired four new employees (Jt. Exh. 1,
Stipulations 26, 27). As a result, the Respondent argues that
there was no majority of the predecessor’s unit employees after
the 90 day period to require bargaining with the Union.
C. Respondent violated Section 8(a)(5) and (1) of the Act by
failing and refusing to bargain with the Union
In NLRB v. Burns International Security Services, 406 U.S.
272 (1972), a successor employer must bargain with the em-
ployee representative when it becomes clear that the successor
has hired its full complement of employees and that the union
represents a majority of those employees. The Board has held
that when a business changes hands, the successor employer
must take over and honor the collective-bargaining agreement
negotiated by the predecessor. In Fall River Dyeing & Finish-
ing Corp. v. NLRB, 482 U.S. 27, 43 (1987), the Supreme Court
clarified the Burns doctrine and held that an employer that pur-
chases the assets of another is required to recognize and bargain
with a union representing the predecessor’s employees when
(1) there is a substantial continuity of operations after the take-
over and (2) if a majority of the new employer’s workforce in
an appropriate unit, consists of the predecessor’s employees at
a time when the successor has reached a substantial and repre-
sentive complement. Under Burns, determining whether a new
company is a successor “is primarily factual in nature and is
based upon the totality of the circumstances of a given situa-
tion.” Fall River Dyeing, 482 U.S. at 43. Thus, a finding of
successorship imposes an obligation on the Respondent to bar-
gain with the union of its predecessor. Absent discrimination,
even a successor is ordinarily free to set the initial terms on
which it will hire the employees of a predecessor and “…is not
bound by the substantive provisions of the predecessor’s collec-
tive bargaining agreement.” Burns Int’l Sec. Servs., Inc., at
272, 294.
The rule of successorship imposes an obligation on the Re-
spondent to bargain with the union of its predecessor. Fall Riv-
er Dyeing, 482 U.S. at 36. “If the new employer makes a con-
scious decision to maintain generally the same business and to
hire a majority of its employees from the predecessor, then the
bargaining obligation of 8(a)(5) is activated. This makes sense
when one considers that the employer intends to take advantage
of the training work force of its predecessor.” Id. at 41–42.
I find that the Respondent violated Section 8(a)(5) and (1) of
the Act when it failed to recognize and bargain when the Union
demanded bargaining on March 7. As stipulated, and I find,
that there were both continuity in the workforce and continuity
of the business enterprise when Respondent purchased the New
York facilities. The unit employees were performing the same
jobs, tasks and duties in the same buildings prior to and after
the purchase of the New York facilities.
With this background, it is abundantly clear that New York’s
DBSWPA was never intended or designed for a successor em-
ployer to circumvent or to avoid its obligation to bargain col-
lectively with a recognized union. The DBSWPA was enacted
due to the effects of “. . . September 11 and the deepening re-
cession [which] have been devastating for low income New
Yorkers.” The findings also noted that “The volatility of the
real estate industry coupled with new trends in the service
economy are undermining stable employment relationships and
creating a drain on an already overburdened social service sys-
tem. At a time of great uncertainty, it is the policy of the City
to promote stability in employment for building service work-
ers, which will reduce the need for social services resulting
from unemployment, and promote stability in the service indus-
try.” (See, DBSWPA Historical Note in R. Exh. 1.)
As such, DBSWPA was intended to protect building service
employee job security and stability by requiring successor
building owners to offer employment to its predecessor’s em-
ployees for a 90 day probationary period and allows the em-
ployer to evaluate the employees after 90 day as to whether to
retain or dismiss the employee. At the end of the 90 day transi-
tion period, the successor employer is required to perform a
written performance evaluation for each employee and if satis-
factory, the successor shall offer the employee continued em-
ployment under the terms and conditions established by the
successor employer or as required by law. (See, DBSWPA
Sections (5), (7), and (8) at R. Exh. 1.) Obviously, the funda-
mental underpinnings of both Burns (and its progeny) and
DBSWPA were to maintain some degree of employment stabil-
ity where there is a continuity in both the workforce and the
business enterprise. As stated by the Court in Fall River Dye-
ing, where, as here, there is a substantial continuity between the
predecessor’s operations and a majority of its former employ-
ees, it is in the interest of the Act’s policy to promote stability
in collective bargaining relationships and preserving industrial
peace by imposing bargaining obligations.
D. Respondent is a Burns Successor
I find that the Respondent is a Burns successor. It is not in
dispute and the parties stipulated that there is “substantial con-
tinuity” between the enterprises to the extent that the business
of both employers is essentially the same and the employees of
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
the new company are doing the same jobs in the same working
conditions. While this doctrine involves a multitude of factors,
typically, the new employer must “hire a majority of its em-
ployees from the predecessor.” Howard Johnson Co. v. Detroit
Local Joint Exec. Bd., 417 U.S. 249, 263 (1974). Here, on or
about February 17, the Respondent hired seven of the eight
predecessor’s employees making up the unit. In addition, the
parties stipulated and I find that the employees of the new com-
pany are doing the same jobs under the same working condi-
tions. It is also not in dispute that the Union timely requested
recognition and demanded bargaining with Respondent (Jt.
Exh. 1, Stipulation par. 23); Armco, Eastern Steel Div., Ashland
Works, 279 NLRB 1184 (1986).
Respondent argues that DBSWPA required it to hire the pre-
decessor’s unit employees and that it would not necessarily
have hired a majority of the predecessor’s employees, but for
the local municipal law (Tr. at 20–23). Basically, the Respond-
ent argues that it did not make a voluntary and conscious deci-
sion to take advantage of its predecessor’s trained workforce
and therefore it was not a Burns successor. Respondent also
apparently argues that any determination of a successorship
obligation must be based on circumstances as they existed after
the DBSWPA 90-day-probationary period. Respondent main-
tains that only three of predecessor’s employees that were part
of the unit remained after the 90-day period and with the hiring
of four new employees, there were no longer a majority repre-
sentative complement of employees from the predecessor for
collective bargaining purposes.
The Acting General Counsel argues that Respondent made a
conscious decision when it purchased the facilities with an
understanding of the requirements of the local ordinance and
when it retained some employees and terminated others.
In agreement with the Acting General Counsel, I reject Re-
spondent’s contentions. The Respondent did make a conscious
decision to retain the former workforce. That conscious deci-
sion was made when the Respondent decided to purchase the
facilities as an on-going enterprise with a trained workforce. It
knew or should have known that the purchase was conditioned
on the application of the DBSWPA. The Respondent also made
a conscious decision when it hired seven of the eight former
employees. Thus, the bargaining obligation under Burns at-
tached on March 7 when the Union made its bargaining de-
mand and at a time when Respondent employed 7 of the 8 em-
ployees represented by the Union. That was a full complement
because even after the DBSWPA 90 day period ended, Re-
spondent had the same number of employees. The Respondent
initially laid-off one employee and discharged three at the end
of the 90 day period in a transparent effort to dilute the Union’s
majority and evade its successorship bargaining obligation.
But, immediately thereafter, it hired 4 new employees to bring
the complement back up to where it was before the end of the
DBSWPA period.
Board law clearly recognizes that, in similar circumstances,
obligations under local law do not permit an employer to es-
cape its successorship obligation.
For example, the Board in Springfield Transit Management,
281 NLRB 72 (1986), the Board affirmed the Administrative
Law Judge’s decision on the obligation of a new employer to
recognize and bargain with the bargaining representative of the
predecessor’s employees mandated by a federal agreement with
the new employer. In Springfield Transit Management, the
federal Urban Mass Transportation Act (UMTA” provided
federal grants to local municipal mass transit systems condi-
tioned on protecting the rights of employees. As part of provid-
ing a grant, the Springfield Transit Management (STM) agreed
and was required to hire all incumbent workers when it took
over the management of the public bus service from the Pioneer
Valley Transit Authority. The Administrative Law Judge
found, and the Board affirmed that since STM was bound to
hire all of the office clerical personnel pursuant to an UMTA
agreement, “. . . the Respondent was bound to also recognize
their collective bargaining representative and to negotiate terms
and conditions of employment with the representative.”7
Springfield Transit Management, 281 NLRB at 78.8
The intent of DBSWPA is to ensure some normalcy of job
security during a time of economic instability in the New York
real estate industry. NLRA Section 8 (a)(1) and (5) was de-
signed to ensure the free engagement of collective bargaining
without interference, restraint, or coercion. Contrary to the
Respondent’s arguments, these two principles are not inappo-
site.9 The illogical conclusion of Respondent’s arguments
would mean that the New York DBSWPA would preempt the
NLRA by denying the rights of employees to collective bar-
gaining who previously were represented but for the local ordi-
nance. DBSWPA was never intended to circumvent the collec-
tive-bargaining rights of employees. It simply flies against
logic to allow new employers to discharge employees with
years of seniority after the 90 day probationary period and this
would not serve or preserve stability in the building service
industry as intended by DBSWPA.
The fact that a local ordinance has a compulsory retention
policy does not alter the application of the successorship doc-
trine. The successorship doctrine serves the policies of the Act
by preserving stability in the collective bargaining relationships
and preserving industrial peace. The successorship doctrine is
satisfied when two elements are met, to wit: (1) there is a sub-

7 While the employer may have made an independent decision to
hire the predecessor’s employees, the Administrative Law Judge cor-
rectly found that regardless, “. . . the obligation to offer jobs to (SSRC)
employees was also a legal requirement set forth in undertakings by
which STM was bound.” Springfield Transit Management, 281 NLRB
at 78.
8 Respondent relied heavily on M&M Parkside Towers, LLC, 2007
WL 313429 (January 30, 2007), that a majority of the predecessor’s
employees could only be calculated after the 90 day probationary peri-
od had concluded when the former employees were made permanent by
the new employer. However, M&M Parkside Towers was not adopted
by the Board and has no administrative precedence herein. But to the
extent that Respondent’s arguments must be addressed, I find, and
Conway testified, that the employees hired were permanent employees
and not probationary.
9 The Respondent has not argued, and it is not before me, that
DBSWPA should be preempted by the NLRB Act. The preemption
doctrine should not be lightly inferred even though the local ordinance
requirements may suggest impingement on national labor relations’
pre-emptive laws and regulations. See, Fort Halifax Packing Co. v.
Coyne, 482 U.S. at 21 (1987).
GVS PROPERTIES, LLC 17
stantial continuity of operations after the takeover and (2) if a
majority of the new employer’s workforce in an appropriate
unit, consists of the predecessor’s employees at a time when the
successor has reached a substantial and representive comple-
ment. Fall River Dyeing, 482 U.S. 27, 43. Here, Respondent
hired seven of the eight predecessor’s employees. Conway
testified that they were not probationary employees when hired
on February 17. But even if they were probationary employees,
the Board has previously determined that probationary employ-
ees enjoy the same under the Act’s Section 7 rights as perma-
nent employees. See, Denham I, 206 NLRB at 660 (1973).
It is clear that a self-serving probationary period imposed by
the new employer on the majority of the predecessor’s employ-
ees would not defeat an obligation to bargain.
In S & F Market Healthcare, LLC d/b/a as Windsor Conva-
lescent Center of North Beach, 351, NLRB 975 (2000), enf.
denied in part on other grounds, 570 F.3d 354 (D.C. Cir. 2009),
the employer purchased a skilled nursing home facility and
retained approximately 75 percent of the predecessor’s work-
force as temporary employees. Each temporary employee was
employed for a 90-day period in which time their performance
was evaluated and offered permanent employment to those with
satisfactory performance reviews. When the union demanded
bargaining, the employer refused. The Board found that the
obligation to bargain attached when S & F hired the temporary
employees because “a work force continuity determination is
not deferred until after the completion of a probationary peri-
od.”
In Sahara Las Vegas Corp., 284 NLRB 337 (1987), a casino
was sold to the Sahara Las Vegas Corporation. Three days
prior to the taking over of operations, Sahara informed the un-
ion president that the union would not be recognized until the
casino was fully staffed, and that the employees were subjected
to a 90-day probationary period. Sahara Las Vegas retained a
majority of the predecessor’s employees and refused to bargain
with the union until after the 90 day period. The Board found
Sahara Las Vegas was a Burns successor and obligated to bar-
gain at the beginning of the 90 day period. The Board stated
“the unilaterally imposed probationary period has no legally
cognizable significance on the legal obligation of a successor
employer to recognize and bargain with an exclusive employee
representative.” I strongly believe that to hold otherwise would
embolden new employers after a takeover of operations to im-
pose arbitrary probationary periods on the predecessor’s em-
ployees to defeat the recognition and bargaining rights of un-
ions. This would allow for the same conclusion in this instance
where a compulsory local ordinance with an arbitrary 90-day
probationary period would circumvent public policy and un-
dermine the right of workers to designate a representative for
collective bargaining under Section 1 of the Act.10 Similarly, in

10 One may argue in the S & F Market Healthcare and Sahara Las
Vegas cases that the new employers chose to hire the probationary
employees and were not mandated to do so. But in this instance, a
close reading of DBSWPA also allows for a degree of discretion to hire
the predecessor’s employees. GVS could have agreed and assumed the
predecessor’s collective-bargaining agreement [Section d] and decided
to discharge and lay-off employees consistent with that agreement;
GVS could have laid-off the predecessor’s employees based upon oper-
The Clarion Hotel-Marin, 279 NLRB 481 (1986), the Board
found that there was no basis to delay resolution of the majority
question when the Respondent argued that its bargaining obli-
gation should be delayed until the conclusion of a 90-day pro-
bation period.
I find that the new employer’s bargaining obligation attached
when the majority of Respondent’s substantial and representa-
tive employee complement was composed of the predecessor’s
employees and when the Union had demanded to bargain on
March 7. I find that under Burns and Fall River, supra, Re-
spondent’s bargaining obligation attached on March 7 when the
majority of the Respondent’s substantial and representative
employees complement was composed of the predecessor’s unit
employees and when the Union made a clear and unequivocal
demand to bargain.
I find that Respondent properly took action to set initial
terms and conditions of employment which were different from
those under the predecessor employer before incurring an obli-
gation to recognize and bargain with the Union prior to March
7. As such, the GVS properly initiated unilateral terms and
conditions of employment without committing an unfair labor
practice. NLRB v. Katz, 369 U.S. 736 (1962).
But I also find that GVS was obligated to recognize and bar-
gain with the Union after the demand to bargain was made by
the Union on March 7 and violated Section 8(a)(1) and (5) of
the Act when Respondent failed to recognize and refuse to
bargain with the designated Union. As of March 7, GVS main-
tained (1) substantial continuity of its predecessor’s operations;
(2) had hired a substantial and representative complement of
the predecessor’s employees; and (3) the Union had made a
demand to bargain. Even in circumstances, as here, where an
employer has properly set initial terms, employers still have an
ongoing obligation to bargain with a union over any subsequent
changes to terms and conditions of employment. 301 Holdings,
LLC, 340 NLRB 366 (2003).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce or an
industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. District 15, Local Lodge 447 of the International Associa-
tion of Machinists and Aerospaceworkers, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. At all times material herein, Local 447 has been and is the
exclusive representative of the building and maintenance em-
ployees employed by GVS Properties, LLC, for the purposes of
collective bargaining within the meaning of Section 9(a) of the
Act.
4. By refusing to recognize and bargain with the Union fol-
lowing the March 7, 2012, demand to bargain, Respondent has
engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.

ational needs [Sec. (b) (6)]; or GVS could have terminated employees
for cause during the 90-day probationary period [Sec. (b) (7)].
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD18
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act. The recommended Order will re-
quire Respondent to cease and desist from bypassing the Union
as the representative of all its full-time superintendents and
porters (also known as maintenance technicians and mainte-
nance assistants respectively) and excluding all other employ-
ees, clerical employees, managerial employees, guards, and
supervisors as defined by the National Labor Relations Act
employed at the following addresses in New York, New York:
601 West 139th Street; 6104 West 157th Street; 600 West 161st
Street; 559 West 164th Street; 701 West 175th Street; 700 West
176th Street; and 667 West 177th Street AND will require it to
bargain collectively and in good faith with the Union as the
exclusive representative of its employees.11
ORDER
The Respondent, GVS Properties, LLC, Long Island, New
York, its officers, agents, successor, and assigns, shall
1. Cease and Desist from
(a) Refusing on and after March 7, 2012, to bargain collec-
tively with District Lodge 15, Local Lodge 447 of the Interna-
tional Association of Machinists and Aerospace Workers,
AFL–CIO, as the exclusive collective-bargaining representa-
tives of its full-time superintendents and porters (also known as
maintenance technicians and maintenance assistants respective-
ly) and excluding all other employees, clerical employees,
managerial employees, guards, and supervisors as defined by
the National Labor Relations Act.
(b) In any like or related manner interfering with, restraining,
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 effec-
tuate the purposes and policies of the Act.
(a) Recognize and, on request, bargain collectively with Dis-
trict Lodge 15, Local Lodge 447, International Association of
Machinists and Aerospace Workers, AFL–CIO as the exclusive
representative of its full-time superintendents and porters (also
known as maintenance technicians and maintenance assistants
respectively) and excluding all other employees, clerical em-
ployees, managerial employees, guards, and supervisors as
defined by the National Labor Relations Act.
(b) Within Fourteen (14) days, post at all the New York,
New York facilities, to wit: 601 West 139th Street; 6104 West
157th Street; 600 West 161st Street; 559 West 164th Street;

11 The Charging party, as a remedy, requested that GVS rescind any
changes to the employees’ terms and conditions of employment imple-
mented since March 7 and make whole any affected employees. How-
ever, the allegation that there may have been improper changes in the
wages, terms, and conditions of employment after March 7 was not
alleged in the complaint and no evidence substantiating this allegation
was presented or litigated at the trial. Therefore, I find that it would be
inappropriate to order this remedy. In any event, any such changes, if
they were indeed implemented, may form the basis of additional charg-
es that may be litigated in a subsequent proceeding.
701 West 175th Street; 700 West 176th Street; and 667 West
177th Street, a copy of the attached notice marked “Appen-
dix.”12 Copies of the notice, on forms provided by the Regional
Director for Region 29, after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facilities involved in
these proceedings, or sold the business or the facilities involved
herein, 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
March 7, 2012.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
Dated, Washington, D.C., December 27, 2012.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey this
Notice.
WE WILL NOT refuse to bargain with District Lodge 15, Local
Lodge 447 of the International Association of Machinists and
Aerospace Workers, AFL–CIO as the exclusive representative
of the employees in the bargaining unit of all its full-time su-
perintendents and porters (also known as maintenance techni-
cians and maintenance assistants respectively) and excluding all
other employees, clerical employees, managerial employees,
guards, and supervisors as defined by the National Labor Rela-
tions Act and employed at the following addresses in New
York, New York: 601 West 139th Street; 6104 West 157th
Street; 600 West 161st Street; 559 West 164th Street; 701 West
175th Street; 700 West 176th Street; and 667 West 177th
Street.
WE WILL NOT refuse to bargain with Local Lodge 447, by
unilaterally changing, without notice and an opportunity to
bargain, terms and conditions of employment that existed as of
March 7, 2012.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the rights guaranteed to them
by Section 7 of the National Labor Relations Act.
WE WILL bargain collectively in good faith with Local Lodge

12 If this Order is enforced by a judgment of the United States Court
of Appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board.”
GVS PROPERTIES, LLC 19
447, International Association of Machinists and Aerospace
Workers, AFL–CIO, as the exclusive representative of the em-
ployees in the appropriate bargaining unit noted above and put
in writing and sign any agreement reached on terms and condi-
tions of employment.
GVS PROPERTIES, LLC