Pressroom Cleaners, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 2014

361 N.L.R.B. 643 (N.L.R.B. 2014)

PRESSROOM CLEANERS 643
Pressroom Cleaners and Service Employees Interna-
tional Union, Local 32BJ. Case 34–CA–071823
September 30, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA,
HIROZAWA, JOHNSON, AND SCHIFFER
On March 29, 2013, Administrative Law Judge Steven
Fish issued the attached decision. The Respondent filed
exceptions and a supporting brief, and the General Coun-
sel and the Union each filed an answering brief. The
Union filed cross-exceptions, the Respondent filed an
answering brief, and the Union filed a reply brief.
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,1 and conclusions2
and to adopt the recommended Order as modified be-
low.3
The allegations in this case arise from the Respond-
ent’s successful bid for a janitorial service contract pre-
viously held by Capitol Cleaning. We agree with the
judge, for the reasons stated in his decision, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discriminatorily refusing to hire six Capitol Cleaning
employees because of their union affiliation,4 that the
Respondent is the statutory successor to Capitol Clean-
ing, and that the Respondent violated Section 8(a)(5) and
(1) by unilaterally imposing new terms and conditions of
employment on the employees it hired. We differ with
the judge, however, on an important issue regarding ap-
plication of the remedy. Applying Planned Building
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
We agree with the judge that Vice President Steve Lilledahl’s state-
ments on November 8, 2011, violated Sec. 8(a)(1). In doing so, we
note that the credited testimony establishes that Lilledahl said the Re-
spondent was “nonunion, does not work with unions, does not deal with
unions,” and “does not want a union at all.” The judge discredited
testimony that Lilledahl’s remarks were limited to a statement that the
Respondent was “nonunion.”
2 There are no exceptions to the judge’s dismissal of an impression-
of-surveillance allegation or to the judge’s finding that the Respondent,
by Supervisor Francisco Teran, violated Sec. 8(a)(1) by threatening and
coercively interrogating employees.
3 We shall modify the judge’s recommended Order to conform to the
Board’s standard remedial language. We shall substitute a new notice
to conform to the modified Order, the Board’s standard remedial lan-
guage, and the Board’s decision in Durham School Services, 360
NLRB 694 (2014).
4 In adopting the refusal-to-hire violations, we find it unnecessary to
rely on Supervisor Teran’s statements as evidence of animus.
Services, 347 NLRB 670 (2006), the judge directed that
the Respondent have the opportunity in compliance to
limit its liability by showing that, even absent its unfair
labor practices, it would not have agreed to the monetary
provisions of the Union’s contract with Capitol Cleaning.
The Charging Party excepts, arguing that this portion of
Planned Building Services was wrongly decided and
should be overruled. After careful consideration, we
agree with the Charging Party.
I. THE RESPONDENT’S UNFAIR LABOR PRACTICES
As explained by the judge, the Respondent conducted
essentially the same business as Capitol Cleaning at the
same location, and former Capitol Cleaning employees
would have constituted the majority of the Respondent’s
unit employees absent the Respondent’s discriminatory
refusals to hire. Accordingly, the Respondent, as a statu-
tory successor, was obligated to recognize and bargain
with the Union. See Love’s Barbeque Restaurant No. 62,
245 NLRB 78, 82 (1979), enfd. in relevant part sub nom.
Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981); ac-
cord: NLRB v. Burns Security Services, 406 U.S. 272,
280–281 (1972). It is well settled that a statutory succes-
sor is not bound by the substantive terms of the predeces-
sor’s collective-bargaining agreement and is ordinarily
free to set initial terms and conditions of employment.
Burns, 472 U.S. at 284. But that right is forfeited where,
as here, the successor unlawfully refuses to hire the pre-
decessor’s employees. See Advanced Stretchforming
International, 323 NLRB 529, 530–531 (1997), enfd. in
relevant part 233 F.3d 1176 (9th Cir. 2000), cert. denied
534 U.S. 948 (2001); Love’s Barbeque, 245 NLRB at 82.
In such cases, the successor must, as a matter of law,
maintain the status quo by continuing the predecessor’s
terms and conditions of employment (as distinct from
assuming an existing collective-bargaining agreement)
until the parties have bargained to agreement or im-
passe.5 The Respondent’s unilateral changes to terms
5 The rationale for holding that the successor in such circumstances
has forfeited his right to set initial terms was explained in Love’s
Barbeque. There, the Board observed that the Supreme Court has
recognized that there are situations in which it is “perfectly clear” that
the new employer will retain the predecessor’s employees and in
“which it will be appropriate to have him initially consult with the
employees’ bargaining representative before he fixes terms.” 245
NLRB at 82 (quoting NLRB v. Burns Int’l Security Services, 406 U.S.
272, 294–295 (1972)). A new employer’s unlawful refusal to hire the
predecessor’s employees, however, creates uncertainty as to what
would have happened absent its unlawful conduct. In that circum-
stance, the uncertainty must be resolved against the new employer,
which “cannot be permitted to benefit from its unlawful conduct.” Id.
One of our dissenting colleagues, Member Miscimarra, states his
disagreement with the rule of Love’s Barbeque, while our other dissent-
ing colleague, Member Johnson, declines to address the rule because it
is not at issue here. We will not address it, either, other than to observe
361 NLRB No. 57

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 644
and conditions of employment therefore violated Section
8(a)(5) and (1).
To remedy the violations, the judge recommended that
the Respondent recognize and bargain with the Union,
extend offers of employment to the affected employees
and make them whole, and restore the status quo—
including rescission of the unilaterally imposed terms
and conditions of employment—until the parties bargain
to agreement or impasse. We agree that this is the ap-
propriate remedy; it has been applied ever since the
Board first held, in Love’s Barbeque, that an employer
that attempts to avoid successorship though discriminato-
ry hiring practices forfeits its right to set initial terms and
conditions of employment. 245 NLRB at 82. We disa-
gree with the judge’s remedy only insofar as it allows the
Respondent the opportunity to show in compliance that,
if it had lawfully bargained with the Union, “at some
identifiable time” it would have reached impasse or
agreement on terms less favorable than those in the Un-
ion’s contract with Capitol Cleaning. The judge is cor-
rect that Planned Building Services permits such a show-
ing. We find, however, that Planned Building Services is
based on a misunderstanding of the Board’s traditional
remedy in successorship-avoidance cases, inconsistent
with other Board precedent, and flawed as a matter of
policy.6
II. BOARD LAW BEFORE PLANNED BUILDING SERVICES
Section 10(c) of the Act gives the Board broad discre-
tionary power to devise remedies that effectuate the
Act’s policies, subject only to limited judicial review.
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 898–899 (1984);
Fibreboard Paper Products v. NLRB, 379 U.S. 203, 216
(1964). In exercising its authority under Section 10(c),
the Board is guided by the principle that remedial orders
should “restor[e] the situation, as nearly as possible, to
that which would have obtained but for” the unfair labor
practice. Phelps Dodge Corp. v. NLRB, 313 U.S. 177,
194 (1941). Thus, since the Act’s inception, a make-
whole remedy for employees injured by unlawful con-
duct has been “part of the vindication of the public policy
which the Board enforces.” Id. at 197.7
that in the 35 years since Love’s Barbeque was decided, it has not been
questioned by any Board or judicial decision.
6 We reject the Respondent’s argument that this issue is not ripe for
Board review. The judge’s recommended remedy expressly provides
that the Respondent shall have the opportunity to limit its liability in
compliance in accordance with Planned Building Services. According-
ly, the validity of that decision is properly before the Board now, even
though this case is not yet in compliance.
7 See also NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346–347
(1953) (a Board backpay order “should stand unless it can be shown
that the order is a patent attempt to achieve ends other than those which
Where, as here, a successor employer has discrimina-
torily refused to hire incumbent employees and thereby
unlawfully established initial terms and conditions of
employment without bargaining, determining how to
restore the situation that would have existed but for the
unlawful conduct is not easy. It is well settled that the
monetary portion of the remedy must be measured by the
predecessor’s terms and conditions of employment
(which may or may not be set out in a labor contract) for
at least some period of time, because those terms repre-
sented the status quo before the unlawful changes. See
State Distributing, 282 NLRB 1048, 1049 (1987). And,
until Planned Building Services, it was clear that the
remedy should continue at the predecessor’s rate until the
parties reached agreement or impasse. See State Distrib-
uting, supra; Love’s Barbeque, supra.8
In State Distributing, the Board considered and reject-
ed the suggestion of the Kallman court that, because “in
all probability” the parties would have reached impasse,
backpay at the predecessor’s rate should continue only
for “a reasonable time of bargaining.” Id. at 1049 (quot-
ing Kallmann v. NLRB, 640 F.2d 1094). The Board rea-
soned that if the parties had bargained lawfully, they
might have reached a compromise—rather than im-
passe—on terms that differed from either the predeces-
sor’s rate or the unilaterally imposed rate. Making that
determination after the fact, however, would be “virtually
impossible” and would “involve[ ] imposing contractual
terms based on this Agency’s conjecture without an ade-
quate factual basis.” Id. Recognizing that the employ-
er’s misconduct had left the Board with a set of “less-
than-perfect remedial choices,” the Board followed the
well-established principle that the burden of uncertainty
should be placed on the wrongdoer—here, the successor
employer.9 Id. Accordingly, the Board held that the
predecessor’s terms and conditions should continue until
the parties bargained to agreement or impasse. Id. The
can fairly be said to effectuate the policies of the Act.”) (quoting Vir-
ginia Electric & Power Co. v. NLRB, 319 U.S. 533, 540 (1943)).
8 To be sure, the successor is never bound to the predecessor’s labor
contract, in whole or in part, although such a contract may provide the
measure for a monetary remedy.
9 Bigelow v. RKO Radio Pictures, 327 U.S. 251, 265 (1946) (“The
most elementary conceptions of justice and public policy require that
the wrongdoer shall bear the risk of the uncertainty which his own
wrong has created.”); NLRB v. Remington Rand, Inc., 94 F.2d 862, 872
(3d Cir. 1938) (it appropriately “rest[s] upon the tortfeasor to disentan-
gle the consequences for which it was chargeable from those from
which it was immune”), cert. denied 304 U.S. 576 (1938); United Air-
craft Corp., 204 NLRB 1068, 1068 (1973) (“the backpay claimant
should receive the benefit of any doubt rather than the Respondent, the
wrongdoer responsible for the existence of any uncertainty and against
whom any uncertainty must be resolved”).

PRESSROOM CLEANERS 645
majority of the appellate courts that reviewed this ap-
proach approved it.10
This approach is consistent with the Board’s standard
remedial scheme in 8(a)(5) unilateral change cases: re-
scission of the change, restoration of the status quo terms
and conditions, and bargaining to agreement or impasse.
See, e.g., Mi Pueblo Foods, 360 NLRB 1097, 1100
(2014). In such cases, the employer must maintain the
status quo until it reaches agreement or a good-faith im-
passe in bargaining; the employer is not permitted to
show in compliance that it would have agreed to differ-
ent terms, or reached impasse earlier, if it had bargained
lawfully in the first place.11 Our approach to successor-
ship cases treats successor employers who have unlaw-
fully refused to bargain in the same manner.
Nevertheless, the Board retreated from this approach
in Planned Building Services. There, the Board held that
it would permit the successor employer, in a compliance
proceeding, to present evidence that it would not have
agreed to the monetary provisions of the predecessor’s
collective-bargaining agreement, and to further establish
one of the following: (1) the date on which the parties
would have bargained to agreement and the terms they
would have reached, or (2) the date on which it would
have bargained to good-faith impasse and implemented
its own monetary proposals. Planned Building Services,
347 NLRB at 675–676. The Board’s rationale rested on
two principles. First, the Board cited three courts of ap-
peals’ decisions that found the traditional remedy puni-
tive to the extent it required the employer to adhere to the
predecessor’s terms and conditions of employment for
longer than “a reasonable bargaining period.” See Capi-
tal Cleaning Contractors, Inc. v. NLRB, supra; Armco,
Inc. v. NLRB, supra; and Kallmann, supra at 1103. Se-
cond, the Board reasoned that determining what the par-
ties “would have agreed to” is not impossible because it
was accomplished in Armco, 298 NLRB 416 (1990),
where the Board, applying the law of the case on remand
from the court, found that a successor employer proved it
10 See, e.g., Pace Industries v. NLRB, 118 F.3d 585 (8th Cir. 1997),
cert. denied 523 U.S. 1020 (1998); NLRB v. Staten Island Hotel, 101
F.3d 858 (2d Cir. 1996); Horizon Hotel Corp. v. NLRB, 49 F.3d 795
(1st Cir. 1995); U.S. Marine Corp. v. NLRB, 944 F.2d 1305 (7th Cir.
1991) (en banc), cert. denied 503 U.S. 936 (1992); Systems Manage-
ment, Inc. v. NLRB, 901 F.2d 297 (3d Cir. 1990). But see Capital
Cleaning Contractors, Inc. v. NLRB, 147 F.3d 999, 1011 (D.C. Cir.
1998); Armco, Inc. v. NLRB, 832 F.2d 357 (6th Cir. 1988); and Kall-
mann, supra, 640 F.2d at 1103 (discussed below).
11 For example, an employer that has violated Sec. 8(a)(5) by unilat-
erally subcontracting unit work is required to restore the status quo; we
do not permit it to try to prove that, had it bargained lawfully, it would
have reached a lawful impasse and subcontracted the work. See, e.g.,
Fibreboard, supra, 379 U.S. at 216.
would not have agreed to the monetary terms of the pre-
decessor’s contract.
We acknowledge that Planned Building Services was a
well-meaning attempt to balance two competing princi-
ples: placing the burden of the uncertainty on the
wrongdoer and avoiding a potentially punitive remedy.
For the following reasons, however, we find the result
and rationale in Planned Building Services fundamental-
ly flawed.
III. THE BOARD’S TRADITIONAL APPROACH IS WELL
WITHIN ITS REMEDIAL AUTHORITY
To begin, we emphasize that continuing backpay at the
predecessor’s rate until agreement or impasse is not puni-
tive. As articulated by the Second Circuit, “the require-
ment that the Company pay former employees at the pri-
or rates was plainly intended to be remedial, for it is
temporally limited: the Board’s order requires payment
at the prior rates only until the Company negotiates in
good faith with the Union, either to agreement or to im-
passe.” NLRB v. Staten Island Hotel, supra, 101 F.3d at
862.12 Of course, where a successor has evaded its obli-
12 The dissent seizes on a single sentence in the Second Circuit’s
Staten Island decision that supposedly expresses a preference for a
remedy that avoids imposing the predecessor’s contract rates on the
successor. The sentence, beginning “If it were possible,” appears in the
following paragraph:
[I]f the Company had not violated the Act, it would indeed have been
free to offer former employees wages at whatever levels it chose, see,
e.g., NLRB v. Burns Intern. Security Services, 406 U.S. 272, 287–288,
92 S. Ct. 1571, 1582–1583, 32 L.Ed.2d 61 (1972); but those appli-
cants, in turn, would have been free to accept or decline those offers,
or to negotiate for different wages. If it were possible to determine the
terms of employment contracts to which former employees might have
agreed, we might prefer an award of backpay at those hypothetical
contracts’ rates. Cf. Kallmann v. NLRB, 640 F.2d 1094, 1103 (9th
Cir.1981). But the fact is that the Company made its hiring decisions
on a basis that unlawfully discriminated against former employees on
the basis of their union membership, and it is hardly clear what terms
would have been reached had the Company not so discriminated.
“The most elementary conceptions of justice and public policy require
that the wrongdoer shall bear the risk of the uncertainty which his own
wrong has created.” Bigelow v. RKO Radio Pictures, 327 U.S. 251,
265, 66 S.Ct. 574, 580, 90 L.Ed. 652 (1946). The choice between im-
posing a predecessor’s contract terms and fashioning reasonable hypo-
thetical contract terms that the successor might have obtained had no
unfair labor practices occurred presents
a set of less-than-perfect remedial choices. The [make-whole]
remedy . . . has the drawback of retroactively imposing on the
[wrongdoing successor its predecessor’s] terms and conditions
of employment . . ., but it has the advantage of giving some rec-
ompense to the victims . . . and preventing the [successor] from
enjoying a financial position that is quite possibly more advan-
tageous than the one it would occupy had it behaved lawfully.
State Distributing Co. v. Teamsters, Chauffeurs, Warehousemen and
Helpers Union Local 313, 282 NLRB 1048, 1049, 1987 WL 90211
(1987). Because it was the Company’s discriminatory acts that creat-
ed the uncertainty as to what terms and conditions of employment

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 646
gations under the Act, lawful bargaining—and, ultimate-
ly, agreement or impasse—likely will not begin until the
Board issues its Order and the employer complies. Thus,
the length of time between the initial refusal-to-bargain
and good-faith agreement or impasse may well be longer
than it would have been had the parties bargained lawful-
ly from the start. We see no reason, however, that the
employees should bear the burden of this delay, which
resulted from the employer’s unlawful conduct. The
wrongdoer, rather than the victim of wrongdoing, should
bear the consequences of its unlawful conduct. NLRB
v. Remington-Rand, Inc., 94 F.2d 862 (2d Cir. 1938).13
The dissent contends that the Board’s traditional ap-
proach contravenes the principle underlying Section 8(d)
and H. K. Porter Co. v. NLRB, 397 U.S. 99, 107–108
(1970), that the Board cannot impose substantive con-
tractual terms on the parties. We reject the argument as
fundamentally mistaken. In H. K. Porter, the Court de-
clined to require the employer to agree to a dues-
would have been agreed, we conclude that it was within the discretion
of the Board to place on the Company the burden of that uncertainty.
The Board’s decision to give the discrimination victims the benefit of
the doubt is remedial rather than punitive.
101 F.3d at 862. (Ellipses original; emphasis added.) Read in context,
the meaning of the sentence is clear: If it were possible to determine
the “hypothetical” rates, then those rates would be the preferable meas-
ure, but it is not, in fact, possible to make that determination.
The dissent then argues that the approach of Planned Building Ser-
vices is different from the one the Staten Island court rejected, because
Planned Building Services contemplated the successor showing what
the outcome of timely bargaining would have been, as opposed to the
Board “fashioning reasonable hypothetical terms.” Id. But the fashion-
ing of hypothetical terms by the Board is precisely what would result if
the Board were to accept a respondent successor’s proffer under
Planned Building Services.
13 The dissent nevertheless asserts that the Board’s traditional ap-
proach is punitive. It points out that the employer bore a lengthy back-
pay obligation at the predecessor’s wage rates in Planned Building
Services, and that the successor employers in Kallman, Dent, and
Overnite each paid predecessor wage rates for more than 2 years, due in
part to the time it took the Board to process those cases. Kallmann v.
NLRB, above; NLRB v. Dent, 534 F.2d 844 (9th Cir. 1976); Overnite
Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir. 1967), cert. denied
389 U.S. 838 (1967). But requiring the successor employer rather than
the employees to bear the cost of that delay does not make the Board’s
remedy punitive. In NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258
(1969), a case involving the unlawful refusal to reinstate strikers, the
Board issued a backpay award that covered a period of more than 4
years, in part because of the Board’s delay in processing the compli-
ance specification. Id. at 260–261. In an effort to balance competing
interests, the court of appeals modified the Board’s Order to provide an
earlier backpay cutoff date. The Supreme Court reversed, holding that
“the Board is not required to place the consequences of its own delay
. . . upon wronged employees to the benefit of wrongdoing employers.”
Id. at 264–265; accord: NLRB v. Ironworkers Local 480, 466 U.S. 720,
724–725 (1984); NLRB v. Katz, 369 U.S. 736, 748 fn. 16 (1962) (reject-
ing as meritless employer’s request to place certain conditions on
Board’s order “because of the lapse of time between the occurrence of
the unfair labor practices and the Board’s final decision and order”).
checkoff provision, an issue over which the Board found
that the employer had refused to bargain in good faith.
Id. at 102. Citing Section 8(d), the Court held that the
Board had the authority to order the parties to negotiate,
but not to impose a substantive contract term. Id. In the
present case, by contrast, the successor is never bound to
the predecessor’s contract; rather, the successor is obli-
gated to maintain the status quo—the predecessor’s
terms and conditions of employment—subject to bar-
gaining. The parties are free to bargain to agreement,
without Board intervention, for any changes to the pre-
decessor’s terms and conditions of employment. Should
they instead reach a lawful impasse, the successor will
then be free to implement its proposal unilaterally—as in
any other case in which the Board orders the status quo
restored until good-faith bargaining occurs. Backpay at
the predecessor’s wage rates continues only until that
time, in furtherance of both the make-whole remedy and
freedom-of-contract principles.
IV. THE RATIONALE OF PLANNED BUILDING SERVICES
IS FLAWED
Having concluded that some adjustment of its remedial
approach was needed, the Board in Planned Building
Services modeled its new approach after Armco, supra.
In that case, the Board reiterated its preference for the
traditional remedy, but interpreted the Sixth Circuit’s
remand as requiring the Board to determine what would
have happened if the successor had fulfilled its bargain-
ing obligation at the time of the takeover. The Board
stated: “In accepting the [court’s] remand as the law of
the case . . . we are required to apply this alternative for-
mula, despite its difficulty and the Board’s past reluc-
tance to do so.” 298 NLRB at 418. After a reopening of
the record and further hearing before an administrative
law judge, the Board concluded that the employer proved
that, if it had negotiated lawfully at the time of the takeo-
ver, it would not have agreed to the monetary terms of
the predecessor’s contract. Because it was “virtually
impossible to determine with any certainty when post-
purchase bargaining would have resulted in an agreement
or impasse,” the Board concluded that the “most reason-
able approach” was to limit backpay liability under the
predecessor’s terms to a period of 15 months, the length
of time it took the parties to reach an agreement once
they actually began negotiations. Id. at 419–420. At
best, Armco represents the findings of a Board con-
strained by the law of the case on remand—not a ration-
alized basis for a change in the law.14
14 Armco, moreover, highlights the inherent difficulty in determining
what would have resulted from lawful bargaining. Even after a reopen-
ing of the record and “extensive litigation” (298 NLRB at 418), the

PRESSROOM CLEANERS 647
In Planned Building Services, the Board also failed to
resolve—or even address—the inconsistency between its
holding and the results reached in other refusal-to-
bargain cases. For example, in cases where an employer
refuses to bargain with a newly certified union, the Board
has explicitly rejected the argument that employees
should be made whole for the difference between the
wages and benefits imposed by the employer and those
that would have existed if the employer had bargained
lawfully. See Tiidee Products, 194 NLRB 1234 (1972);
Ex-Cell-O Corp., 185 NLRB 107 (1970), enfd. 449 F.2d
1058 (D.C. Cir. 1971). In Tiidee Products, the Board
ordered the Respondent to cease and desist and to bar-
gain with the Union. The Board rejected the Union’s
request to determine what the parties “would have agreed
to” in bargaining and to order the Respondent to make
employees whole accordingly. Id. at 1235. The Board
reasoned: “We know of no way by which the Board
could ascertain with even approximate accuracy” what
the parties “would have agreed to” if they had bargained
in good faith.15 Id. (emphasis in original). The Board in
Ex-Cell-O reached the same conclusion, reasoning:
“Who is to say in a specific case how much an employer
is prepared to give and how much a union is willing to
take? Who is to say that a favorable contract would, in
any event, result from the negotiations?” Supra at 110.
The Board concluded that it “would be required to en-
gage in the most general, if not entirely speculative, in-
ferences” to determine what the parties would have
agreed upon if the employer had bargained lawfully. Id.
Although Tiidee Products and Ex-Cell-O are not succes-
sorship-avoidance cases, they nevertheless demonstrate
the Board’s appropriate and longstanding resistance to
necessarily speculative determinations about what would
have occurred in lawful bargaining. Moreover, Planned
Building Services, considered in conjunction with Tiidee
and Ex-Cell-O, creates both an inconsistency and an in-
equity in Board precedent: a successor employer that has
unlawfully refused to bargain has the opportunity to
prove the terms it would have agreed to (or imposed up-
on impasse), but a union that is subjected to an employ-
er’s refusal to bargain has no such opportunity. Planned
Building Services is an anomaly in Board law. It pre-
sents a wrongdoing successor employer with an option
Board in Armco was unable to reach a unanimous conclusion on when
the parties would have reached agreement or impasse. See id. at 421–
422 (Member Devaney, dissenting).
15 Although the Board noted the sparsity of the record, the judge in
the original case had made clear that he “allowed the Union to develop
fully in the record all evidence necessary to sustain its position on this
issue.” Tiidee Products, 174 NLRB 705, 714 (1969). That lack of
evidence—even where the matter was fully litigated—further high-
lights the speculation required to make such a determination.
that is not available—to employers or to unions—in any
other refusal-to-bargain scenario. Indeed, the decision
creates a one-sided opportunity that can only benefit the
wrongdoer: the employer is permitted to reduce its liabil-
ity by proving the bargaining would have resulted in less
favorable terms than the predecessor’s, but the union is
not permitted to prove that bargaining would have result-
ed in more favorable terms.16
In addition to its legal flaws, as a practical matter,
Planned Building Services both prolongs litigation by
greatly complicating the compliance phase and discour-
ages meaningful bargaining. In Board litigation, the un-
fair labor practice phase is completed before the compli-
ance phase begins. Under Planned Building Services,
compliance issues may well be litigated while the parties
are bargaining—a scenario that is all but guaranteed to
affect the employer’s bargaining approach. The employ-
er has an incentive to push hard for a quick impasse, and
then use that as evidence in the compliance proceeding to
prove that it would have reached impasse quickly had it
bargained lawfully from the beginning. Alternatively,
bargaining will be significantly delayed pending resolu-
tion of the difficult compliance issues.
V. A RETURN TO STATE DISTRIBUTING IS THE
BETTER APPROACH
In sum, we find that the Planned Building Services ap-
proach is fundamentally flawed. As we have long recog-
nized, successorship-avoidance cases leave the Board
with remedial options that are clearly “less than perfect.”
State Distributing, 282 NLRB at 1049. We find, howev-
er, that it is within the Board’s remedial discretion—and
the better practice—not to permit the wrongdoer to estab-
lish, through what amounts largely to speculation, the
terms and conditions of employment that the parties
would have agreed to if the employer had not violated its
duty to bargain. Returning to the practice outlined in
16 At least one of the three court decisions cited in Planned Building
Services was based on a misunderstanding of the Board’s remedy. The
court in Capital Cleaning mischaracterized the Board’s remedy as
relying on an “implicit assumption” that the parties would have agreed
to the predecessor’s terms if they had bargained in good faith. 147 F.3d
at 1010. But that is not what the Board held in State Distributing.
Rather, the Board reasoned that because it is virtually impossible to
determine what would have occurred in lawful bargaining, the wrong-
doer who created the uncertainty should bear the burden of that uncer-
tainty. The court in Capital Cleaning further stated that “the best evi-
dence of the wage [the successor] would have had to pay” is “the rate it
. . . actually paid the new employees who did the work previously done
by” the predecessor’s employees. 147 F.3d at 1011. Respectfully, we
disagree. Presuming that the rate unilaterally imposed by the employer
is the “best evidence” both rewards the employer for its unlawful uni-
lateral conduct and presumes that lawful bargaining would have had no
effect whatsoever.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 648
State Distributing will both restore consistency to our
jurisprudence and better effectuate the policies of the
Act. Accordingly, we hold that, when a successor em-
ployer has violated Section 8(a)(5) and (1) by unilaterally
changing the predecessor’s terms and conditions of em-
ployment, the make-whole remedy will include restora-
tion of the predecessor’s terms and conditions until the
parties bargain in good faith to agreement or impasse.
An employer may no longer attempt to prove what the
terms and conditions would have been if it had complied
with its obligation to bargain. We overrule Planned
Building Services to the extent that it conflicts with our
decision here.
Finally, we find it appropriate to apply our decision
retroactively. The Board’s usual practice is to apply new
policies and standards “to all pending cases in whatever
stage.”17 The “propriety of retroactive application is
determined by balancing any ill effects of retroactivity
against ‘the mischief of producing a result which is con-
trary to a statutory design or to legal and equitable prin-
ciples.’”18 Pursuant to this principle, the Board applies a
new rule retroactively to the parties in the case in which
the new rule is announced and to parties in other cases
pending at that time as long as this would not work a
“manifest injustice.”19
There is no basis here for departing from the Board’s
usual practice. We are deciding a remedial issue, not
adopting a new standard concerning whether certain con-
duct is unlawful.20 Accordingly, we shall apply our new
policy in this case and in all pending cases that are not
already in the compliance stage as of the date of this de-
cision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pressroom Cleaners, Inc.,
Hartford, Connecticut, its officers, agents, successors,
and assigns, shall take the action set forth in the Order as
modified.
1. Insert the following after paragraph 2(g) and relet-
ter the subsequent paragraphs.

“(f) Compensate the employees for the adverse
tax consequences, if any, of receiving lump-sum back-
pay awards, and file a report with the Social Security
17 Aramark School Services, 337 NLRB 1063, 1063 fn. 1 (2002)
(quoting Deluxe Metal Furniture Co., 121 NLRB 995, 1006–1007
(1958)).
18 Id. (quoting Securities & Exchange Commission v. Chenery Corp.,
332 U.S. 194, 203 (1947)).
19 Pattern Makers (Michigan Model Mfrs.), 310 NLRB 929, 931
(1993).
20 See Kentucky River Medical Center, 356 NLRB 6, 10 (2010).
Administration allocating the backpay awards to the
appropriate calendar quarters for each employee.”

2. Substitute the attached notice for that of the admin-
istrative law judge.

MEMBER MISCIMARRA and MEMBER JOHNSON, concurring
in part and dissenting in part.
Introduction
Our position in this case flows from several cardinal
principles embedded in the National Labor Relations Act
and in controlling Supreme Court case law interpreting
the Act. First, under Section 10(c), the Board’s authority
is remedial, not punitive.1 Second, under Section 8(d) of
the Act, the Board may not impose any term of an
agreement on the parties to a collective-bargaining rela-
tionship. Indeed, the Supreme Court held that “[i]t is
implicit in the entire structure of the Act that the Board
acts to oversee and referee the process of collective bar-
gaining, leaving the results of the contest to the bargain-
ing strengths of the parties.” H. K. Porter Co. v. NLRB,
397 U.S. 99, 107–108 (1970). Third, in cases involving
a sale or succession of employers,2 even if the new em-
ployer is a legal “successor” obligated to recognize and
bargain with the predecessor’s union, the successor em-
ployer is not required to adopt the predecessor’s collec-
1 Republic Steel Corp. v. NLRB, 311 U.S. 7, 11–12 (1940); Consoli-
dated Edison Co. v. NLRB, 305 U. S. 197, 235–236 (1938); NLRB v.
Pennsylvania Greyhound Lines, 303 U. S. 261, 267–268 (1938). More
than 70 years ago, the Supreme Court held that the purpose of the
Board’s remedies is the “restoration of the situation, as nearly as possi-
ble, to that which would have obtained but for” the unfair labor practic-
es. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Applying
this principle to monetary remedies, the Court subsequently held that
under Sec. 10(c), a “backpay remedy must be sufficiently tailored to
expunge only the actual, and not merely speculative, consequences of
the unfair labor practices.” Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 900
(1984) (emphasis in original).
2 Successorship cases are those involving a transition in employers,
most often caused by the sale of a business or contract rebidding (for
example, where an employer provides maintenance or cleaning services
pursuant to a contract that ends, and where the next contractor employs
some or all of the predecessor contractor’s employees). See, e.g.,
NLRB v. Burns Security Services, 406 U.S. 272 (1972); Fall River
Dyeing & Finishing Corp. v. NLRB, 482 U.S. 27 (1987). In these cas-
es, the potential existence of a postransition obligation to bargain (and
certain other obligations) turns on whether there is sufficient business
continuity and whether the successor employer has a work force ma-
jority of union-represented employees previously employed by the
predecessor, but the successor employer has no obligation to adopt or
apply employment terms set forth in the predecessor’s contract. Also,
the successor employer typically has the right to unilaterally set initial
employment terms (see fn. 3 infra), although the Board held in Love’s
Barbeque Restaurant No. 62, 245 NLRB 78, 82 (1979), enfd. in rele-
vant part sub nom. Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981),
that the successor’s right to set different initial employment terms is
forfeited if the successor engages in discriminatory hiring in order to
defeat a successor bargaining obligation.

PRESSROOM CLEANERS 649
tive-bargaining agreement, and the successor employer
generally has the right to unilaterally establish its initial
employment terms without bargaining. Burns, 406 U.S.
at 280–281; Fall River Dyeing, 482 U.S. at 43.3
In Planned Building Services, 347 NLRB 670 (2006),
the Board aligned its precedent with these foundational
principles in a unanimous five-member decision. There,
the respondent-employer challenged its successor-
employer status, but it was found to be a successor with
an obligation to engage in post-transition bargaining with
the predecessor’s union. The respondent’s successor
status was based on a finding that it had discriminated in
hiring to avoid a successor bargaining obligation. Ac-
cordingly, under Love’s Barbeque, supra, it was found to
have forfeited its right to set different initial terms of
employment, and to have violated Section 8(a)(5) by
setting initial terms without bargaining.4 For this viola-
3 According to the Supreme Court in Burns, an exception to the suc-
cessor employer’s right to unilaterally set initial employment terms
may arise where “it is perfectly clear that the new employer plans to
retain all of the employees in the unit and in which it will be appropri-
ate to have him initially consult with the employees’ bargaining repre-
sentative before he fixes terms.” 406 U.S. at 294–295. The Board
interpreted this exception in Spruce Up Corp., 209 NLRB 194, 195
(1974), enfd. 529 F.2d 516 (4th Cir. 1975). See infra fn. 11.
4 Member Johnson agrees that, under Love’s Barbeque, supra, the
Respondent forfeited the right to set initial employment terms unilater-
ally and thus also violated Sec. 8(a)(5) when it established initial terms
of employment different from its predecessor’s without giving the
Union notice and an opportunity to bargain. No party asks the Board to
reconsider Love’s Barbeque in this case. Accordingly, Member John-
son does not here reach whether Love’s Barbeque was correctly decid-
ed.
As he stated in his separate opinion in CNN America, Inc., 361
NLRB 440, 481–482 (2014), Member Miscimarra disagrees with the
holding of Love’s Barbeque that an employer forfeits the right to set
different initial terms if it engages in antiunion discrimination in con-
nection with hiring decisions to avoid a successorship bargaining obli-
gation. See also Pacific Custom Materials, Inc., 327 NLRB 75, 75–76
(1998) (Member Hurtgen, dissenting). In Member Miscimarra’s view,
the holding in Love’s Barbeque inappropriately deviates from the Su-
preme Court’s holdings in Burns, supra, and in Fall River Dyeing,
supra, that a predecessor’s contractual obligations are inapplicable to
legal successors, even though the successors are required to recognize
and bargain with the predecessor’s union. If the successor engages in
discriminatory hiring decisions that defeat successor status, the appro-
priate remedy is to order instatement and make-whole relief for the
individuals adversely affected by such discrimination and, to the extent
otherwise warranted by relevant facts, to require the successor to rec-
ognize and bargain with the predecessor’s union. Apart from these
remedies, Member Miscimarra believes the Board remains constrained
by Burns and Fall River Dyeing, in addition to Sec. 8(d) of the Act,
from imposing substantive contract terms on the successor. See also H.
K. Porter, 397 U.S. at 108. Thus, he agrees with the reasoning of for-
mer Member Hurtgen in Pacific Custom Materials, who stated: “The
8(a)(3) violations yield their own compensatory remedy of reinstate-
ment and backpay. It is excessive and punitive to use those 8(a)(3)
violations to take away the legitimate defense to an 8(a)(5) allegation
concerning the setting of initial terms. . . . In addition, even if the
Board’s position [in Love’s Barbeque] is a permissible one, it would
tion, the judge imposed a backpay obligation—based on
wage rates in the predecessor’s labor contract—that
persisted for 8 or 9 years after the transition in employ-
ers.5 The backpay order was unaffected by the black-
letter legal principles described above (which preclude
imposing a predecessor’s contract terms on a posttransi-
tion successor), nor did the judge allow for any consider-
ation of the overwhelming likelihood that bargaining
would have resulted in an impasse or agreement on dif-
ferent wage rates much earlier than the end of the back-
pay period imposed by the judge.
The Board in Planned Building Services adjusted the
judge’s backpay remedy, described above, to comply
with the legal principles described above, including the
fact that “[t]he Act does not authorize the Board to im-
pose punitive measures.” 347 NLRB at 675.6 Accord-
ingly, “to strike a better balance between two principles
that guide the Board’s remedial discretion: placing the
burden of uncertainty on the wrongdoer and avoiding a
remedy that is, in fact, punitive,” id., the Board held that
the successor employer—while bearing the burden asso-
ciated with any uncertainty resulting from its violation—
retained the right to introduce evidence that might pro-
vide “an adequate factual basis” for proving that timely
bargaining would have produced an impasse or agree-
ment regarding wage rates different than those required
under the predecessor’s agreement. Id. at 676.
What the Planned Building Services Board did not do
bears emphasis. It did not shorten the duration of the
seem that the position set forth herein is a more prudent one, more
balanced concerning a successor employer’s obligations, and is more
consistent with the Supreme Court’s language.” 327 NLRB at 75–76
(Member Hurtgen, dissenting) (paragraph structure modified). To the
extent the Board continues to apply Love’s Barbeque, however, Mem-
ber Miscimarra supports the standard articulated in Planned Building
Services because, as described in the text, it aligns the Board’s backpay
remedy with statutory constraints on the Board’s remedial authority.
5 The backpay period commenced in 1997 and 1998. There were
three bargaining units at issue in Planned Building Services at three
different buildings in New York, New York. The judge found that
although the union “may not have made demands for recognition at all
of the buildings, this failure [was] inconsequential” because “any re-
quest for bargaining would [have been] futile.” 347 NLRB at 718.
PBS commenced operations at the three buildings on December 23,
1997, February 14, 1998, and June 24, 1998, respectively. Id. at 693,
696–697, 700. The union began picketing at each location immediately
after those dates.
6 The Board in Planned Building Services did not expressly rely on
Sec. 8(d) or H. K. Porter. It did, however, rely in part on the D.C.
Circuit’s decision in Capital Cleaning Contractors, Inc. v. NLRB, 147
F.3d 999 (D.C. Cir. 1998). In that decision, the court of appeals reject-
ed the remedial approach our colleagues adopt today as inconsistent
with “two cardinal principles” of labor law: that “the Board’s remedial
order must be just that—remedial—and not punitive,” and that “an
employer cannot be required to accept contractual terms to which it did
not agree.” Id. at 1012 (emphasis added).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 650
backpay period in successorship-avoidance cases. It did
not remove the burden of uncertainty from the party
found to have violated the Act. It merely recognized that
punitive remedies are beyond the Board’s authority,
which warranted recognizing the respondent’s right to
present evidence “that it would not have agreed to the
monetary provisions of the predecessor employer’s col-
lective-bargaining agreement, and further establishing
either the date on which it would have bargained to
agreement and the terms of the agreement that would
have been negotiated, or the date on which it would have
bargained to good-faith impasse and implemented its
own monetary proposals.” Id. Moreover, the Planned
Building Services Board correctly rejected arguments
that such a determination would be (as now described by
our colleagues) “necessarily speculative.” In Planned
Building Services, the Board pointed out that it “has been
able to make such a determination,” and, indeed, the
Board made such a determination in Armco, Inc., 298
NLRB 416 (1990).7 Following the Armco approach, the
Board in Planned Building Services preserved “the core
of the Board’s traditional make-whole remedy, while at
the same time helping to ensure that the Board’s remedy
does not, in fact, amount to a penalty, as applied in a
particular case.” 347 NLRB at 676.
7 In Armco, Inc. v. NLRB, 832 F.2d 357 (6th Cir. 1987), cert. denied
486 U.S. 1042 (1988), the court of appeals enforced the Board’s order
in the underlying decision (279 NLRB 1184 (1986)), in which the
Board found that Armco violated Sec. 8(a)(5) by unilaterally changing
the terms and conditions of its predecessor’s employees when it pur-
chased the predecessor’s plant. However, the court did not enforce the
Board’s backpay remedy. It found that remedy “may be too harsh,” as
it would require Armco to pay the predecessor’s employees up to $3 an
hour more from the time that Armco purchased the predecessor’s plant
until the parties reached agreement or impasse. Id. at 365. Relying on
the Ninth Circuit’s decision in Kallmann v. NLRB, 640 F.2d 1094 (9th
Cir. 1981), discussed below, and finding that Armco may not have
agreed to the union’s demands for higher wages, the court held that
Armco was “responsible for the pay difference for the time which
would have been required for bargaining.” Id. The court remanded the
case to the Board to determine how long that period of time would have
lasted. As noted above, the Board addressed that issue in its Second
Supplemental Decision (298 NLRB 416 (1990)) and determined when
the parties would have reached an agreement and on what terms.
The majority asserts that Armco represents at best “the findings of a
Board constrained by the law of the case on remand—not a rationalized
basis for a change in the law.” Law of the case or not, the fact remains
that Armco demonstrates that the showing Planned Building Services
provides for may be made because it has been made. While the majori-
ty and the dissent in that case disagreed on how much time bargaining
would have required—the majority relied on how long the parties took
to reach an agreement, and the dissent on the expiration date of the
predecessor’s union contract—the point is that both majority and dis-
sent found that Armco’s make-whole obligation ended well before it
would have if the Board had applied its traditional remedy. Since Arm-
co shows that it is possible to make the remedial determination Planned
Building Services allows, it supports giving parties the opportunity to
do so—an opportunity the majority does away with today.
For these reasons and those that follow, we would ad-
here to the holding and remedial structure set forth in
Planned Building Services, and we dissent from our col-
leagues’ decision to overrule that case. However, we
concur in our colleagues’ finding that the Respondent
engaged in unlawful discrimination in hiring that violat-
ed Section 8(a)(3), and in an unlawful failure to recog-
nize and bargain with the Union that violated Section
8(a)(5).
Relevant Facts
Respondent, Pressroom Cleaners, a nonunion compa-
ny, provides industrial cleaning services to newspaper
facilities across the United States. As relevant here, it
has had a contract for approximately 8–10 years with the
Hartford Courant (Courant) to provide janitorial services
for the Courant’s pressroom at the Courant’s Broad
Street facility in Hartford, Connecticut. In 2011, the Re-
spondent won a separate contract to clean the other areas
of the Broad Street facility, and it commenced operations
there on December 12, 2011. Capitol Carpet & Specialty
Cleaning (Capitol Cleaning) had previously performed
this work. The Union represented Capitol Cleaning’s
eight employees who performed the work, as well as
other Capitol Cleaning employees not at issue here, un-
der a collective-bargaining agreement between the Union
and the Hartford Cleaning Contractors Association, of
which Capitol Cleaning was a member, effective from
January 1, 2008, to December 31, 2011. The Respondent
refused to hire Capitol Cleaning’s employees. The judge
and our colleagues find, and we agree, that the Respond-
ent violated Section 8(a)(3) by discriminatorily refusing
to hire six of the eight (it lawfully declined to hire the
other two based on their poor references) in order to
avoid an obligation to bargain with the Union.8
Planned Building Services: The Legal Setting
Several circuits have already rejected the remedial ap-
proach our colleagues adopt today. In our view, these
cases demonstrate that Planned Building Services was
correctly decided. Moreover, it is helpful to review the
broader legal framework that helps explain why the
Board’s traditional remedy, as applied in the Love’s
Barbeque context, conflicts with the Act’s prohibition of
8 In agreement with the majority, we do not rely on statements made
by Supervisor Francisco Teran as evidence of antiunion animus. In this
regard, we note that while there were no exceptions to the judge’s find-
ing that the Respondent, through Teran, violated Sec. 8(a)(1) by threat-
ening and coercively interrogating employees, the Respondent did not
hire Teran until January 2012, after the Respondent refused to hire the
predecessor’s employees. We also agree with our colleagues, for the
reasons stated in their opinion, that the Respondent violated Sec.
8(a)(1) through Vice President Steve Lilledahl’s November 8, 2011
statements to employees.

PRESSROOM CLEANERS 651
remedies that (i) are punitive, or (ii) impose contract
terms on unconsenting parties.
In H. K. Porter Co. v. NLRB, supra, the Supreme Court
considered the issue of whether the Board had the au-
thority to require an employer to agree to a term of a con-
tract the parties were negotiating. The Court held that
the Board lacked that authority, principally relying on
Section 8(d).9 The Court observed that in enacting Sec-
tion 8(d) in 1947, Congress sought to check what it
viewed as the Board’s tendency to “set[ ] itself up as the
judge of what concessions an employer must make.” 397
U.S. at 105 (internal quotations omitted). Although ac-
knowledging that Section 8(d) may not forbid the Board
from compelling agreement “as a matter of strict, literal
interpretation,” the Court held the Board’s remedial
powers were also “limited by the same considerations
that led Congress to enact Section 8(d).” Id. at 107. The
Court concluded that “[i]t is implicit in the entire struc-
ture of the Act that the Board acts to oversee and referee
the process of collective bargaining, leaving the results
of the contest to the bargaining strengths of the parties.”
Id. at 107–108.
In NLRB v. Burns Security Services, supra, the Su-
preme Court decided whether, as the Board had found,
an employer that acquires and continues (in substantially
unchanged form) the business of a unionized predeces-
sor, and hires as a majority of its work force the prede-
cessor’s union-represented employees, must bargain with
the union before setting initial terms and conditions of
employment different from those of its predecessor.
Relying on Section 8(d) and its decision in H.K. Porter,
supra, the Court in Burns reversed the Board and held
that although a legal successor does have a duty to rec-
ognize and bargain with the incumbent union, it “is ordi-
narily free to set initial terms on which it will hire the
employees of a predecessor.” 406 U.S. at 294. In reach-
ing this conclusion, the Court distinguished the circum-
stances of the case before it from those in which an em-
ployer violates Section 8(a)(5) by unilaterally changing a
term of employment without bargaining with the union:

It is difficult to understand how Burns could be said to
have changed unilaterally any pre-existing term or
9 As relevant here, Sec. 8(d) states (emphasis added):
For the purposes of this section, to bargain collectively is the perfor-
mance of the mutual obligation of the employer and the representative
of the employees to meet at reasonable times and confer in good faith
with respect to wages, hours, and other terms and conditions of em-
ployment, or the negotiation of an agreement, or any question arising
thereunder, and the execution of a written contract incorporating any
agreement reached if requested by either party, but such obligation
does not compel either party to agree to a proposal or require the
making of a concession[.]
condition of employment without bargaining when it
had no previous relationship whatsoever to the bargain-
ing unit and, prior to July 1 [when Burns commenced
operations], no outstanding terms and conditions of
employment from which a change could be inferred.
The terms on which Burns hired employees for service
after July 1 may have differed from the terms extended
by Wackenhut and required by the collective-
bargaining contract, but it does not follow that Burns
changed its terms and conditions of employment when
it specified the initial basis on which employees were
hired on July 1.

Id. (emphasis in original).10 However, the Court created an
exception to the rule that a successor employer is ordinarily
free to set its own initial terms. “[T]here will be instances,”
it said, “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
employees’ bargaining representative before he fixes
terms.” Id. at 294–295.11
Next, in Love’s Barbeque, supra, the Board held that
an employer who resorts to unlawful discrimination in
hiring to avoid a legal successor’s bargaining duty will
have backpay liability under Section 8(a)(5) based on
10 The Court also cited substantial policy reasons for its holding:
[H]olding either the union or the new employer bound to the substan-
tive terms of an old collective-bargaining contract may result in seri-
ous inequities. A potential employer may be willing to take over a
moribund business only if he can make changes in corporate structure,
composition of the labor force, work location, task assignment, and
nature of supervision. Saddling such an employer with the terms and
conditions of employment contained in the old collective-bargaining
contract may make these changes impossible and may discourage and
inhibit the transfer of capital. On the other hand, a union may have
made concessions to a small or failing employer that it would be un-
willing to make to a large or economically successful firm. The con-
gressional policy manifest in the Act is to enable the parties to negoti-
ate for any protection either deems appropriate, but to allow the bal-
ance of bargaining advantage to be set by economic power realities.
Strife is bound to occur if the concessions that must be honored do not
correspond to the relative economic strength of the parties.
Id. at 287–288.
11 The Board interpreted the “perfectly clear” exception to the gen-
eral rule of Burns in Spruce-Up Corp., supra. There, the Board held
that the exception is to be “restricted to circumstances in which the new
employer has either actively or, by tacit inference, misled employees
into believing they would all be retained without change in their wages,
hours, or conditions of employment,” or “where the new employer has
failed to clearly announce its intent to establish a new set of conditions
prior to inviting former employees to accept employment.” 209 NLRB
at 195. As the D.C. Circuit has emphasized, “[t]he ‘perfectly clear’
exception is and must remain a narrow one because it conflicts with
‘congressional policy manifest in the Act . . . to enable the parties to
negotiate for any protection either deems appropriate, but to allow the
balance of bargaining advantage to be set by economic power reali-
ties.’” S&F Market Street Healthcare LLC v. NLRB, 570 F.3d 354, 359
(D.C. Cir. 2009) (quoting Burns, 406 U.S. at 288).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 652
any initial failure to pay the wage rates specified in the
predecessor’s collective-bargaining agreement. The
Board acknowledged that it was uncertain whether the
employer would have hired all or substantially all of the
predecessor’s employees absent the unlawful discrimina-
tion. But the Board adopted a presumption that the
would-be successor would have hired all or most of
them, and “[t]herefore, it was not entitled to set initial
terms of employment without first consulting the
[u]nion.” 245 NLRB at 82.12
The Ninth Circuit upheld the basic holding of Love’s
Barbeque. Kallmann v. NLRB, 640 F.2d 1094, 1102–
1103 (9th Cir. 1981). However, the court denied en-
forcement of the Board’s order requiring the respondent
to make employees whole for the 8(a)(5) violation at the
predecessor’s wage rates until it bargained with the union
to agreement or impasse. As explained more fully be-
low, the court found that the traditional remedy applied
by the Board was impermissibly punitive. Id. at 1103.
Notwithstanding Kallmann, however, the Board adhered
to its traditional remedy in State Distributing Co., 282
NLRB 1048 (1987).
Judicial Criticism of the Board’s Traditional Make-
Whole Remedy
In the instant case, the Board has found that the Re-
spondent violated Section 8(a)(5) by refusing to bargain
with the Union before changing the terms and conditions
of employment set out in Capitol Cleaning’s contract
with the Union. That brings us to the issue presented
here: whether, in fashioning a remedy for this violation,
the Board should apply a backpay obligation that inflexi-
bly imposes the predecessor’s contract wage rates on the
successor employer for a period of years (thereby mark-
ing a return to State Distributing), as the majority finds,
or whether the Board should adhere to Planned Building
Services, which recognizes that (i) the successor’s duty is
to bargain, not to adopt the predecessor’s contract wage
rates, and (ii) had bargaining occurred, it may have pro-
duced an impasse or agreement on different contract
wage rates in a fraction of the State Distributing backpay
period. A review of Board and court decisions that have
considered the issue demonstrates, in our view, that
Planned Building Services should remain controlling in
this important area.
As stated above, in Kallmann, supra, the Ninth Circuit,
while agreeing with the Board that Kallmann (the owner
of the restaurant) “had a duty to consult with the union
before unilaterally changing the terms of employment,”
12 The Love’s Barbeque holding has been called a “corollary” to the
“perfectly clear” exception mentioned in Burns. See Capital Cleaning
Contractors, 147 F.3d at 1008.
held that Kallmann had no obligation to accept its prede-
cessor’s labor agreement. (640 F.2d at 1103.) And yet,
the court observed, “[t]he effect of the Board’s order is to
force Kallmann to abide by the terms of his predeces-
sor’s contract with the employees for the entire period of
time Kallmann has owned the enterprise.” (Id.) The
court found that “to the extent that a back pay order re-
quires payment at the higher rate for the entire period of
ownership, it acts as a penalty.” Id. (emphasis added).
The court concluded “that an appropriate back pay reme-
dy cannot require Kallmann to pay the higher rate be-
yond a period allowing for a reasonable time of bargain-
ing.” Id. (emphasis added).
In reaching this conclusion, the Ninth Circuit was
guided by its decision in NLRB v. Dent, 534 F.2d 844
(9th Cir. 1976), where it considered a similar remedial
order. In Dent, the successor—the Dents, who acquired
Chico Convalescent Hospital (CCH)—retained the pre-
decessor’s employees and continued the predecessor’s
contractual terms for 2 weeks after commencing opera-
tions, and then reduced wages unilaterally in violation of
Section 8(a)(5). The Board ordered the Dents, in rele-
vant part, to make the employees whole by paying them
the amounts lost as a result of the wage cuts for all hours
worked since the reductions. The court of appeals re-
fused to enforce the backpay award, relying on both of
the limitations on the Board’s authority that we find dis-
positive here—it cannot prescribe contract terms, and it
cannot impose punitive remedies:

Congress has directed that the obligation to bargain
does not compel the making of a concession by either
party. This factor was persuasive in the Supreme
Court’s holding in Burns that a successor employer is
not bound by the terms of his predecessor’s collective
bargaining agreement. Yet, the effect of the Board’s
back pay award, if enforced, is to force the Dents to
abide by the wage provisions of their predecessor’s
contract with the [u]nion retroactively for the three and
a half years that they have owned CCH. This is a long-
er period of time than the contract period in the union’s
agreement with [the predecessor].

534 F.2d at 847. The court also found that the Dents would
not have agreed to the contractual wage rates: they had
determined from an informal study of prevailing wage rates
in the community that the predecessor’s rates were too high.
Thus, it concluded that the Board’s backpay award “act[ed]
as a penalty.” Id. In support, the court in Dent cited the

PRESSROOM CLEANERS 653
dissenting opinion in Overnite Transportation Co. v. NLRB,
discussed in the margin.13
As Kallmann, Dent, and the dissenting opinion in
Overnite demonstrate, the Board exceeds its remedial
authority under the Act when it imposes on a successor
its predecessor’s contractual terms for so extended a pe-
riod—in Kallmann, over 3 years; in Dent, 3-1/2; in
Overnite, more than 2—as to effectively compel the suc-
cessor to adopt its predecessor’s collective-bargaining
agreement. This result contravenes Section 8(d) and the
teachings of H. K. Porter, supra. Further, when the facts
may support a finding that the parties would have
reached agreement or impasse far earlier and at wage
rates less generous than the predecessor’s, it defies both
reason and the prohibition against punitive remedies to
rely on the uncertainty principle to deny successors the
opportunity to establish such facts—particularly given
that “the vast portion” of the backpay period under the
State Distributing rule our colleagues return to today
“occurs in the protraction of the refusal-to-bargain-time
by the Board” itself.14
As we have already noted, in State Distributing, 282
NLRB at 1048, the Board rejected the Kallmann court’s
analysis of the remedial issue and continued to apply its
traditional remedy in the successor-avoidance context.
The Board acknowledged record evidence that the union
was “flexible” about wage rates, and that it was “entirely
possible” that had the parties bargained, “they very well
might have reached a compromise.” Id. at 1049. None-
theless, whether they would have done so and on what
terms remained uncertain, and uncertainties are resolved
“against the one whose unlawful acts have created” them.
Id. As a result, the Board required State Distributing to
make whole its predecessor’s employees at the predeces-
sor’s contractual rate from February 1982 until it negoti-
ated to agreement or impasse with the union—a period of
13 Overnite Transportation Co. v. NLRB, 372 F.2d 765 (4th Cir.
1967), cert. denied 389 U.S. 838 (1967), was a pre-Burns case in which
the court applied the rule the Supreme Court rejected in Burns—i.e.,
that a legal successor was not free to set initial terms without bargain-
ing. Applying its traditional make-whole remedy, the Board had or-
dered Overnite to restore the predecessor’s wage rates from the date it
took over the predecessor’s operations until the parties reached agree-
ment or impasse. The court majority enforced, but Judge Bryan in
dissent disagreed with the “extent” of the remedy, finding “the period
of restoration [i.e., the backpay period] . . . too great, a span not justi-
fied by the evidence.” Id. at 770. In this regard, he did not believe that
the backpay period could be viewed “exclusively as a part of the reme-
dy resting in the discretion of the Board [when, in fact,] the vast portion
of it occurs in the protraction of the refusal-to-bargain-time by the
Board” itself. Id. (emphasis added). Judge Bryan would have remand-
ed “for a redetermination of the period of restoration in accordance
with the evidence.” Id.
14 Overnite Transportation, 372 F.2d at 770 (Bryan, J., dissenting).
at least 5 years, for the Board did not issue its decision
until February 1987.
That brings us to Capital Cleaning Contractors, 147
F.3d at 999, in which the D.C. Circuit disagreed with the
Board’s reasoning in State Distributing. In particular,
the court rejected the Board’s “implicit assumption” that
had the respondent not violated Section 8(a)(5) by unilat-
erally setting initial employment terms, “it would have
agreed to the CBA into which its predecessor had en-
tered.” Id. at 1010–1011. Our colleagues say that the
D.C. Circuit mischaracterized State Distributing. They
say that, rather than making the “implicit assumption”
the court described, the State Distributing Board “rea-
soned that because it is virtually impossible to determine
what would have occurred in lawful bargaining, the
wrongdoer who created the uncertainty should bear the
burden of that uncertainty.” But our colleagues miss the
court’s point. The court was simply stating the practical
effect of applying the State Distributing remedy: in vir-
tually every case, the respondent ends up bound to the
terms of its predecessor’s contract from the date it ac-
quired the business and for years thereafter, even though
its duty was merely to bargain with the union, not to
accept the predecessor’s contract.15 This is exactly the
same criticism of the Board’s traditional remedy as the
Ninth Circuit made in Kallmann and Dent, and as Judge
Bryan made in his dissenting opinion in Overnite. The
D.C. Circuit acknowledged that its view conflicts with
that of several other circuit courts, but it concluded that
State Distributing’s remedial standard conflicts with
“two cardinal principles of labor law: (1) an employer
cannot be required to accept contractual terms to which it
did not agree, and (2) the Board’s remedial order must be
just that—remedial—and not punitive.” Id. at 1012. We
agree with the D.C. Circuit.16
15 It is no answer for the majority to deny such a result by asserting
that, as a matter of law, “the successor is never bound to the predeces-
sor’s contract” when, by its practical effect, the State Distributing rem-
edy achieves the same result.
16 The majority also contends that the holding in Planned Building
Services is inconsistent with cases where an employer refused to bar-
gain with a newly certified union, and the Board declined the union’s
request to determine what the parties would have agreed to if the em-
ployer had not refused to bargain. In this regard, we believe the majori-
ty compares apples and oranges. Where an employer refuses to bargain
with a newly certified union, for the Board to determine the terms the
parties would have agreed to had they bargained would contravene Sec.
8(d) and H. K. Porter, which require that “the Board . . . oversee and
referee the process of collective bargaining, leaving the results of the
contest to the bargaining strengths of the parties.” 397 U.S. at 107–
108. By contrast, Sec. 8(d) and H.K. Porter are contravened by not
permitting the showing provided for by Planned Building Services
because the alternative—which our colleagues embrace—imposes the
predecessor’s contract terms for the entire make-whole period.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 654
It bears emphasis that, although the Board in Planned
Building Services agreed with criticisms levied by the
Ninth and D.C. Circuits regarding the Board’s more ex-
pansive remedial approach in Love’s Barbeque succes-
sorship cases (as exemplified by State Distributing), the
Planned Building Services Board did not adopt the more
extreme standard those courts proposed of limiting the
duration of the backpay period to a reasonable period for
bargaining. Instead, the Board adopted the more modest
approach articulated by the Sixth Circuit in Armco,
which merely provides the respondent with an opportuni-
ty to prove when any required bargaining would have
resulted in an impasse or agreement on different terms
than those set forth in the predecessor’s collective-
bargaining agreement.
Conclusion
We believe the Board in Planned Building Services
appropriately balanced the competing interests of resolv-
ing uncertainty against a party whose conduct violates
the Act, while recognizing black-letter legal principles
that constrain the Board’s remedial authority. As noted
previously, (i) the Board’s remedies cannot be punitive
or otherwise exceed make-whole relief authorized by the
Act; (ii) the Board may not impose substantive contract
terms not agreed to by the parties; and (iii) the Board
may not require successor employers to adopt the con-
tract terms set forth in the predecessor’s collective-
bargaining agreement. The Board’s decision in Planned
Building Services recognizes these principles and sets
forth a moderate, reasonable standard that our colleagues
Our colleagues cite NLRB v. Staten Island Hotel Ltd. Partnership,
101 F.3d 858, 862 (2d Cir. 1996), as authority for the proposition that
State Distributing’s remedial standard is not punitive. However, the
Staten Island court itself expressed its preference for a remedy that
avoids imposing the predecessor’s contract rates on the successor. The
court stated: “If it were possible to determine the terms of employment
contracts to which former employees might have agreed, we might
prefer an award of backpay at those hypothetical contracts’ rates. Cf.
Kallmann v. NLRB, 640 F.2d 1094, 1103 (9th Cir. 1981).” Id. at 862.
Planned Building Services provided an opportunity—nothing more—to
fashion a backpay award the Staten Island court preferred. Our col-
leagues respond that the court concluded that it is not possible to make
this determination. We note, however, that the court framed the choice
as one “between imposing a predecessor’s contract terms and fashion-
ing reasonable hypothetical contract terms.” Id. (emphasis added).
That is not the choice at issue here. Planned Building Services does not
empower the Board to “fashion[ ] reasonable hypothetical contract
terms.” It gives Love’s Barbeque successors an opportunity to furnish
“an adequate factual basis” for concluding that timely bargaining would
have produced an impasse or agreement at wage rates different than the
predecessor’s, 347 NLRB at 676, which is possible to do because it has
been done, see Armco, supra. The choice here is between continuing to
provide that opportunity and resolving uncertainty against the wrong-
doer if the employer fails to furnish “an adequate factual basis,” versus
imposing the predecessor’s contract terms in every case. This choice
the Second Circuit’s Staten Island decision did not address.
reject today in favor of an unbalanced approach we be-
lieve cannot be reconciled with what the D.C. Circuit
characterized as “cardinal principles of labor law.” 147
F.3d at 1012. Accordingly, we respectfully dissent.17
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.
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 coercively interrogate you concerning
your membership in or activities on behalf of Service
Employees International Union, Local 32BJ (the Union).
WE WILL NOT threaten you with discharge if you en-
gage in activities in support of the Union or if they speak
to representatives of the Union.
WE WILL NOT inform you or applicants for employ-
ment that we are a nonunion business or that we intend to
operate as a nonunion business.
WE WILL NOT refuse to hire bargaining unit employees
of Capitol Carpet and Specialty Cleaning Company
(Capitol Cleaning), the predecessor employer, because
they were members of and supported the Union, and to
discourage you from engaging in these activities.
WE WILL NOT refuse to recognize and bargain in good
faith with Service Employees International Union, Local
32BJ as the exclusive collective-bargaining representa-
tive of our employees in the following appropriate unit:

All building service employees employed by the Re-
spondent to clean the offices at the Hartford Courant
building located at 285 Broad Street, Hartford, Con-
necticut, excluding employees, who maintain and clean
the pressroom at that building, guards and supervisors
as defined in the Act.

WE WILL NOT unilaterally change wages, hours, and
other terms and conditions of employment of the em-
17 Because we would not overrule Planned Building Services, a for-
tiori, we would not apply the majority decision retroactively.

PRESSROOM CLEANERS 655
ployees in the above-described unit without first giving
notice to and bargaining with the Union about these
changes.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL notify the Union in writing that we recognize
the Union as the exclusive representative of its unit em-
ployees under Section 9(a) of the Act and that we will
bargain with the Union concerning terms and conditions
of employment for employees in the above-described
appropriate unit.
WE WILL recognize and, on request, bargain with the
Union as the exclusive representative of the employees in
the above-described appropriate unit concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
WE WILL, on request of the Union, rescind any depar-
tures from terms and conditions of employment that ex-
isted immediately prior to our takeover of predecessor
Capitol Cleaning’s operation, retroactively restoring
preexisting terms and conditions of employment, includ-
ing wage rates and welfare and pension contributions,
and other benefits, until we negotiate in good faith with
the Union to agreement or to impasse.
WE WILL make whole the unit employees for losses
caused by our failure to apply the terms and conditions of
employment that existed immediately prior to our takeo-
ver of predecessor Capitol Cleaning’s operation.
WE WILL within 14 days of the date of this Order, offer
employment to the following former unit employees of
the predecessor, Capitol Cleaning, who would have been
employed by us but for the unlawful discrimination
against them, in their former positions or, if such posi-
tions no longer exist, in substantially equivalent posi-
tions, without prejudice to their seniority or any other
rights or privileges previously enjoyed, discharging if
necessary any employees hired in their place.

Epifania De Jesus
Razmik Hovhannisyan
Mariana Lubowicka
Anahit Zhamkochyan
Emilio Figueroa
Daniel Korzeniecki

WE WILL make the above-named employees referred
whole for any loss of earnings and other benefits they
may have suffered by reason of our unlawful refusal to
hire them, less any net interim earnings, plus interest.
WE WILL file a report with the Social Security Admin-
istration allocating backpay to the appropriate calendar
quarters.
WE WILL compensate the above-named employees for
the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer
than 1 year.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful re-
fusal to hire the above-named employees and WE WILL,
within 3 days thereafter, notify them in writing that this
has been done and that the refusal to hire them will not
be used against them in any way.
PRESSROOM CLEANERS

The Board’s decision can be found at
www.nlrb.gov/case/34–CA–071823 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1099 14th Street, N.W., Washington,
D.C. 20570, or by calling (202) 273-1940.

Sheldon Smith, Esq. and Thomas E. Quigley, Esq., for the Gen-
eral Counsel.
Raymond R. Aranza, Esq. (Scheldrup Blades Schrock Smith
Aranza PC), of Omaha, Nebraska, for the Respondent.
Andrew Strom, Esq., of New York, New York, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
STEVEN FISH, Administrative Law Judge. Pursuant to charg-
es and amended charges filed by Service Employees Interna-
tional Union, Local 32BJ (the Union) or Charging Party, on
January 4, 2012, and March 9, 2012,1 respectively, the Region-
al Director for Region 34 issued a complaint and notice of hear-
ing on May 31, alleging that Pressroom Cleaners (Respondent),
violated Section 8(a)(1) of the Act by interrogations, threats,
creating impression that their union activities were under sur-
veillance, and informing employees that it would be futile to
select the Union as their bargaining representative and Section
8(a)(1) and (3) of the Act by refusing to hire six employees2
1 All dates, unless otherwise indicated, are in 2012.
2 The employees were Razmik Hovhannisyan, Epifania De Jesus,
Mariana Lubowicka, Daniel Korzeniecki, Anahit Zhamkochyan, and
Emilio Figueroa.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 656
because these employees joined and assisted the Union and
Section 8(a)(1) and (5) of the Act by refusing to recognize and
bargain with the Union as the successor to Capitol Carpet &
Specialty Cleaning, Inc. (Capitol Cleaning), and by establishing
terms and conditions of employment of its employees that vary
from the terms set forth in the collective-bargaining agreement
between the Union and Capitol Cleaning.
The trial with respect to the allegations in the above com-
plaint was held before me on July 23 and 24 and August 21.
Briefs have been filed by all parties and have been carefully
considered.
Based upon the entire record,3 including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
The Respondent is a Nebraska corporation, which provides
janitorial services at various facilities throughout the United
Sates, including at Hartford Courant building in Hartford, Con-
necticut (the Courant facility).
During the 12-month period ending April 30, 2012, Re-
spondent purchased and received at the Courant facility goods
valued in excess of $50,000 directly from points outside the
State of Connecticut.
Respondent admits, and I so find, that it is an employer with-
in the meaning of Section 2(2), (6), and (7) of the Act.
It is also admitted, and I so find, that the Union is and has
been a labor organization within the meaning of Section 2(5) of
the Act.
II. FACTS
A. Respondent’s Operations
Respondent is a family run corporation with its headquarters
in Omaha, Nebraska, and it provides industrial cleaning ser-
vices and decorative services to newspaper facilities all over the
United States. While its primary business involves maintaining
and redecorating pressrooms, it has recently branched out to
perform janitorial work for portions of facilities, where news-
papers are printed, warehoused, and distributed.
Respondent’s president is Roy Lilledahl. His son, Steve,4 is
the vice-president, who performs an essential role in overseeing
the operations at each contracted facility.
Sierra McSharry is Steve Lilledahl’s daughter (and grand-
daughter of Roy Lilledahl) and has the title of promotions di-
rector, where she is involved with marketing, human resources
and supply management of Respondent’s operations. Steve
3 General Counsel has filed a motion to correct transcripts, which
was not opposed. The motion is granted, as modified, based on my
evaluation of the record. The transcript is corrected as follows:
P. 30, line 6 “bit” should read “bid”
P. 60, line 23 “Thirteen dollars, fifteen cents” should read “Thirteen
dollars, fifty cents”
P. 66, line 4 “talk” should read “take”
P. 81, line 9 “Ramon” should read “Razmik”
P. 178, line 11 “Yes” should read “No”
P. 510, line 19 “research” should read “resources”
P. 531, line 6 “Lubowska” should read “Lubowicka”
4 Steve Lilledahl is also half owner of the company.
Lilledahl and McSharry are the “eyes and ears on the road” for
Respondent at the facilities, where they perform services. Their
responsibilities include hiring and firing employees at these
locations.
Respondent began janitorial operations at the Hartford
Courant facility, located at 285 Broad Street in Hartford, on
December 12, 2011.5 At that time, Joe Pena, an official from its
Nebraska headquarters, became the site supervisor. In early
January of 2012, Pena left the position to return to Nebraska,
and Respondent promoted Francisco Teran, one of the employ-
ees whom it hired to replace Pena as site supervisor. Teran was
an admitted Section 2(11) supervisor of Respondent from Janu-
ary 9, 2012, through May 18, 2012. Teran was terminated at
that time and replaced by Elias Rosario, another employee, who
was promoted from his position as a janitor.
B. Bargaining History
Capitol Cleaning held a janitorial service contract to clean all
of the Hartford Courant’s facilities, including its main facility,
located at 285 Broad Street. In addition to that facility, the
Hartford Courant also had two other facilities in Hartford, plus
five other leased facilities in other cities in Connecticut. Capi-
tol Cleaning’s contract encompassed janitorial services at all of
these facilities.6
The service contract with Capitol Cleaning provided that
Capitol Cleaning was “solely responsible for the management
of the cleaning services on the premises including but not lim-
ited to general supervision of areas to be cleaned.”
The Union has been the collective representative of the Capi-
tol Cleaning employees employed at the 285 Broad Street facil-
ity for many years. That recognition is based on Capitol Clean-
ing’s membership in the Hartford Cleaning Contractors Associ-
ation and authorizations signed by Capitol Cleaning, authoriz-
ing the association to represent Capitol Cleaning in collective
bargaining with the Union.
The association and the Union entered into a collective-
bargaining agreement, effective from January 1, 2008, to De-
cember 31, 2011. The Union and Capitol Cleaning entered into
a memorandum of agreement on February 22, 2008, which
incorporated the terms of the contract between the association
and the Union with some modifications.
Capitol Cleaning employed eight janitorial employees, who
were covered by the collective-bargaining agreement between
Capitol Cleaning and the Union, and the Union was the collec-
tive-bargaining representative for the Capitol Cleaning employ-
ees employed at the Hartford Courant’s 285 Broad Street facili-
ty. The Union did not represent any of Capitol Cleaning’s em-
ployees employed at other Hartford Courant facilities, located
both in Hartford and in other cities in Connecticut.
C. Respondent Bids for Janitorial Contract at the Board
Street Facility
On or about April 15, the Tribune Company, which is the
parent company of the Hartford Courant, sent out requests for
5 Respondent had a contract to clean and maintain the pressroom at
that facility for approximately 8–10 years.
6 That excludes the pressroom at 285 Broad Street, where, as noted,
Respondent had the contract for maintenance for many years.

PRESSROOM CLEANERS 657
bids to various companies, including Respondent, for janitorial
services at a number of its business units. The facilities includ-
ed in the bid covered the Hartford Courant facilities located in
Hartford as well as those facilities located outside of Hartford.
Respondent subsequently submitted janitorial bids for three
Hartford Courant facilities, the main Board Street location, and
the Elliot Street and Wormley Street locations. Respondent also
submitted a bid for cleaning and maintaining the production
pressroom at Broad Street, which was a rebid for a service con-
tract that it already held at that time. According to McSharry,
when Respondent bid on the contract for the office portion of
the work, it was calculated on the basis of 6.25 full-time em-
ployees at a salary of $9 per hour. She further asserted that this
was based on the intention to hire one supervisor, one full-time
day porter, one full-time night porter and the rest as part-time
cleaners to reach Respondent’s goal of 6.25 full-time employ-
ees.
D. The Applications for Employment by Capitol
Cleaning Employees
In early September of 2011, Wojciech Pirog, field repre-
sentative and organizer for the Union, was informed by one of
the Capitol Cleaning employees that there was as rumor going
around that the janitorial contract might be going out for bids
and that there was a possibility that the bid could go to another
company that was in the building doing industrial cleaning.
Pirog did not know anything about Respondent at the time but
after a Google search, he ascertained that Respondent was per-
forming industrial cleaning at the Hartford Courant facility and
that the person to contact from the Hartford Courant was Ber-
nard Gulotta, the Hartford Courant’s facility and engineering
manager.
Pirog left several messages with Gulotta to call him and find
out if the rumor was true. Gulotta did not return Pirog’s calls.
On September 12, 2011, Pirog sent two documents to Gulot-
ta. The first document was a letter signed by all of the Capitol
Cleaning employees, stating that they wanted to inform the
Hartford Courant that they will be losing their jobs and asked
Gulotta to provide them with the name of the contact person as
well as the telephone number of the new company in order to
file applications with the new employer. The letter asked Gulot-
ta to provide the information “to our Service Employees Inter-
national Union, Local 32JB Representative Wojciech Pirog at
196 Trumbell Street, Hartford, CT 06103 via phone at 860–
560–8674 at your earliest convenience.”
The second document, also dated September 12, 2011, was
printed on the Union’s letterhead. This document contains the
signatures of all eight Capitol Cleaning employees and reads as
follows:

The undersigned building service employees are currently
employed at The Hartford Courant facility at 285 Broad
Street, Hartford, CT 06115. Each of us hereby makes an un-
conditional application for employment with the newly con-
tracted cleaning contractor, which we understand will be at
the facility beginning September 30, 2011.

Please advise our collective-bargaining representative, Ser-
vice Employees International Union Local 32 BJ how we may
obtain an application.
Gulotta did not respond to either of these documents nor
make any attempt to contact the Union.
Shortly after not hearing from Gulotta, Pirog, along with
other members of the bargaining unit, began leafleting at the
employee entrance to the Hartford Courant building. The leaf-
lets distributed by Pirog and the employees to tenants in the
building and to the public asked them to reach out and call
Gulotta to help save jobs for the workers in the building. Dur-
ing the leafleting, Gulotta rushed out of the building with a
security guard and asked Pirog why the Union was leafleting,
adding that the Capitol Cleaning crew were still in the building
and they were still working there and that the Union “don’t
need to do this.”
Pirog asked Gulotta about the rumors that there was going to
be a change of contractors. Gulotta admitted that Capitol Clean-
ing was doing a month-to-month contract at the time, which
was different than before, but Gulotta did not confirm or deny
that Capitol Cleaning would be replaced. Gulotta merely re-
peated his comments that everything is fine and that the em-
ployees are working and asked Pirog to “go away.” The Union
continued to leaflet the premises.
On or about September 28, the Union conducted a rally on
Flower Street across the street from the Hartford Courant park-
ing lot to protest the expected job loss if the paper terminated
its contract with a unionized cleaning company.
The Union issued a press release, describing the rally, which
included a quote from Epifania De Jesus, one of the employees
involved. The press release is as follows:

FOR IMMEDIATE RELEASE
Wednesday, September 28, 2011

BUILDING CLEANERS AT HARTFORD COURANT
RALLY TO SAVE THEIR JOBS
-Protest Aims to Keep Courant’s Unionized Cleaning Com-
pany, Protect Good Jobs-

Hartford, CT-Building cleaners at Connecticut’s largest
newspaper rallied Wednesday to protest their expected job
loss if the paper terminates its long-time contract with a un-
ionized cleaning company.
“These cleaners have worked hard to keep the building of this
major newspaper well-maintained, sanitary and safe,” said
Wojciech Pirog of 32BJ SEIU, which represents the workers.
“They deserve to keep their jobs, and not be thrown out on the
street.”

The workers learned recently that the Hartford Courant could
end its contract with Capitol Cleaning as early as October 1,
which would throw the building’s eight cleaners out of work.
Some of these men and women have been at the building
more than 20 years.

The noon rally on Flower Street, across from the Hartford
Courant’s parking lot, drew workers and supporters from
around the area. The workers said they have reached out to
the Courant to apply to continue working under any new con-
tractor. The company has not responded to their requests.

Kurt Westby, Connecticut State Director for SEIU 32BJ, said
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 658
in a statement that it is significant all of the workers are full-
time with health benefits and a retirement plan. “These are
good jobs that have given these workers and their families a
toehold in the middle-class,” Westby said. “Hartford needs its
employers to help in creating more good jobs, not destroying
them. We call on the Courant to retain Capitol Cleaning, and
not throw hard-working members of our community out on
the street.”

Epifania DeJesus, who has worked cleaning the Courant
building for 16 years said her husband suffered a stroke a few
years ago and now they both depend on her health insurance
and income. She learned recently that she might lose her job
as early as Friday: “I’m stressed out because I think, ‘What
am I going to do?’”

With more than 120,000 members in eight states and Wash-
ington, D.C., including 4,500 in Connecticut, 32BJ SEIU is
the largest union of property service workers in the country.

On September 19, Pirog decided to contact Respondent di-
rectly. He telephoned Respondent’s corporate office in Omaha,
Nebraska, and spoke with Linda Mason, Respondent’s human
resources director. Pirog used a fictional name of “Tom” and
told Mason that he lived in Hartford and was interested in ap-
plying for work in Hartford. Mason informed Pirog that Re-
spondent was interested in hiring people and would send him a
job application. Mason faxed Pirog a job application immedi-
ately. Pirog made copies of the application submitted to him by
Respondent and distributed them to each of the eight employees
to fill out. Some of the employees needed some help in filling
out the applications, so Pirog provided assistance to them in
that regard. All eight employees filled out applications and
returned them to Pirog.
On September 26, Pirog sent the completed applications to
Respondent, accompanied by the following letter:

Pressroom Cleaners
5709 South 60th Street
Omaha, NE 68117

To Whom It May Concern:

Enclosed please find eight completed job applications from all
of the janitors currently working at The Hartford Courant for
Capitol Cleaning. They would like to apply for work with
your company since it has been brought to SEIU Local
32BJ’s attention that your company has either been awarded
or will be awarded the cleaning contract.

Sincerely,
Wojciech Pirog
SEIU Local 32BJ
196 Trumbull Street, 4th Floor
Hartford, CT 06103
(860)–560–8674

Another 6 weeks passed and neither Pirog nor any of the
Capitol Cleaning workers received any communications from
Respondent. Thus, on November 2, Pirog sent an email to Re-
spondent, entitled “Hartford Courant job applications for Cus-
todians.” Along with the email, he resent the eight completed
applications.
The email stated that the eight janitors “would all like to ap-
ply to work with your company since it has been brought to
SEIU 32 BJ’s attention that our company was awarded the
cleaning contract. I have already sent your company a paper
copy of these applications on September 26, 2011.”
Pirog received a return email from Theresa Frangoulis, an
admitted agent of Respondent, which states as follows: “Thank
you for the applications. I will make sure Mr. Lilledahl is aware
that we have them.”
E. The November 8 Meeting
On November 8, McSharry contacted Augie Madiera, the
site supervisor for Capitol Cleaning, and informed him that
Respondent was interested in speaking with some of Capitol
Cleaning’s employees about possible employment with Re-
spondent. Madiera called her back a half-hour later and sug-
gested that evening at 7 p.m. McSharry agreed to that time and
informed Madiera that she would be interested in interviewing
employees Lubowicka, Figueroa, Hovhannisyan, Zham-
kochyan, De Jesus, and Korzeniecki. According to McSharry,
Respondent excluded employees Ramon Garcia and Eddie
Williams form this process because it had decided not to con-
sider them for employment because of negative recommenda-
tions from Gulotta.
McSharry instructed Madiera to inform the employees that
Respondent had been notified that it had won the bid to take
over the contract for cleaning the facility and that Respondent
would want to interview these Capitol Cleaning employees for
positions as Respondent’s employees. Madiera subsequently
informed McSharry that he had notified all six of the employ-
ees about the meeting.
The meeting was held at 7 p.m., as scheduled, at the Hartford
Courant facility. Present were Steve Lilledahl, McSharry and
employees Lubowicka, Figueroa, Hovhannisyan, Zham-
kochyan, and De Jesus. Korzeniecki, although invited to attend
the meeting, was not present because he was working the night
shift and was not at work yet. At the start of the meeting,
Lubowicka informed Lilledahl and McSharry that Korzeniecki
was not there because his shift starts later. Neither Lilledahl nor
McSharry made any comments about Korzeniecki’s absence.
Lilledahl did all of the talking on behalf of Respondent. He
informed the employees present that he was the half-owner of
the new company that will be replacing Capitol Cleaning as the
contractor as the Courant Building. Lilledahl explained that the
Hartford Courant was having financial problems and that Re-
spondent charges less for its services than Capitol Cleaning and
that is why Respondent won the bid. He added that if employ-
ees agreed to work for Respondent, they would be paid $9 per
hour with no benefits, no holidays and no paid vacations.7
De Jesus asked who was going to work the overnight shift.
This was the shift filled by Garcia and Williams at Capitol
Cleaning. Since Williams and Garcia were not at the meeting,
De Jesus was concerned about who would be doing that work.
7 The employees had been earning at Capitol Cleaning between $13
and $13.80 per hour and had health insurance and other benefits under
the contract between Capitol Cleaning and the Union.

PRESSROOM CLEANERS 659
Lilledahl replied that Respondent was not interested in hiring
either Garcia or Williams and the Respondent was going to
bring their own people to cover the third shift.
Lilledahl then informed the employees that Respondent does
not work with unions, does not deal with unions and does not
want a union at all.
De Jesus commented that her husband was very sick and had
a stroke and that she as well as all of the employees rely on the
health insurance that Capitol Cleaning had provided.
Zhamkochyan inquired if it would be possible to be hired
without having to clean bathrooms because that job is hard on
her hands. Lilledahl responded that Respondent would look into
that request if the employee was hired.
Hovhannisyan commented that Respondent must not be
much of a company if it could only afford to pay $9 per hour.
Lilledahl informed the employees that Respondent would
give them a few days to talk with their families before deciding
whether they were interested in working for Respondent.
De Jesus asked how the employees were supposed to contact
Respondent. McSharry responded by distributing her business
card to each employee in the room with her cell number and
office number listed on the card. At the close of the meeting,
De Jesus informed Respondent that they would be hearing from
the employees.8
F. Employees Respond to Respondent
Subsequent to the November 8 meeting, the employees met
and discussed among themselves whether to accept jobs with
Respondent. Although there was discontent expressed due to
the reduced wages, De Jesus reminded the employees that most
of them were close to retirement and it would be better for them
to accept the job. The employees all agreed to accept. De Jesus
then called the Union and explained the situation to Union Rep-
resentative Juan Hernandez. Hernandez advised the employees
that if Respondent offers them a job, they should take it.
Consequently, De Jesus called McSharry’s cell phone num-
ber and left a message stating that all six former Capitol Clean-
ing employees were interested in accepting jobs with Respond-
ent. De Jesus left her name and phone number. McSharry did
not return the call.
About a week after the November 8 meeting, Hovhannisyan
telephoned McSharry, introduced himself and informed her that
he, on behalf of all of the employees, would like to accept Re-
spondent’s offer of employment. McSharry responded that
Respondent was still looking into its options and would let the
employees know of its decision.
8 The above findings with respect to the meeting of November 8 are
based on a compilation of the credited portions of the testimony of De
Jesus, Lubowicka, Figueroa, Hovhannisyan, Zhamkochyan, McSharry,
and Lilledahl. Most of the facts described are not disputed. There is a
dispute concerning what Lilledahl said about the Union but I have
credited the version of De Jesus, substantially corroborated by Lubow-
icka and Figueroa. While Hovhannisyan and Zhamkochyan did not
recall any discussion of the Union at the meeting, even Lilledahl and
McSharry conceded that he said that Respondent is a nonunion compa-
ny. According to Lilledahl, “I would have introduced us and explained
that we were non-union because I knew that they were. I didn’t want
them disillusioned or not understanding what we were offering them.”
In fact, Respondent never let the employees know about its
decision on whether to hire them. Rather, as will be described
more fully below, it did not hire any of them and filled its staff
with all new employees, starting on December 12, 2011.
G. Statements Made by Teran in January and February of 2012
As noted above, Respondent staffed its operations at the
Hartford Courant with new employees, starting on December
12, 2011. In January of 2012, the Union began an organization-
al campaign at the facility, and a union representative named
Gabriel began speaking to employees as they entered the build-
ing about the Union and handing out literature and union cards
to the employees.
On a day during the first week of January 2012, Respond-
ent’s employees Elias Rosario and Juan Cruz were walking
toward the entrance to the building when Gabriel approached
them and introduced himself and began telling them about the
Union. Gabriel gave them union cards to sign, and they took
them. Rosario could see Teran watching the employees and
Gabriel through the Courant entrance’s glass doors.
When Cruz and Rosario entered the building, Teran ap-
proached them. He said to the employees that they “couldn’t
talk to him (referring to Gabriel) because he was from the Un-
ion.”9 Teran added that if the employees talked to him (Gabri-
el), they would get fired. Teran also mentioned that the crew
that used to work here had the Union and that is why they
weren’t working at the Hartford Courant.
Madelyn Castro was hired by Respondent on January 8,
2012. She was interviewed by Teran and had been recommend-
ed for the job by her sister and her sister’s husband, who were
already employed at Respondent. Castro’s sister and sister’s
husband were also present at the interview. Castro had no pre-
vious experience as a janitorial or maintenance worker. When
Castro was asked about prior experience as a cleaner before this
job, she replied, “I cleaned my house.”
Castro began her employment on January 9, 2012. She
worked Friday, Saturday, and Sunday and at times, other days
if called by Teran. On January 10, Castro, Cruz, and Rosario
were coming into the building together along with two other
employees (Felipe and David). They were approached by Ga-
briel, and Gabriel discussed joining the Union with the employ-
ees, telling them about the benefits and gave out union cards to
the employees. Gabriel also handed out a document entitled,
“Cleaning Workers Know Your Rights.” This document is as
follows:

Cleaning Workers KNOW YOUR RIGHTS

The National Labor Relations Act guarantees you the right to
join a Union and speak up for your rights.

It is illegal for your bosses to:
• Ask what you think about the Union, if you signed a
Union card or ask you who else signed a card or is
involved in the Union campaign.
9 Rosario further testified that Teran already knew Gabriel because
“he is from the Union and he already knew him.” Rosario did not testi-
fy how he became aware that Teran knew that Gabriel was from the
Union.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 660
• Promised or give you a raise, a promotion, or addi-
tional benefits if you oppose the Union.
• Threaten to fire you, lay you off, cut your pay, reduce
your hours or benefits because you support the Un-
ion.
• Discriminate or treat employees differently because
they support the Union, including making assign-
ments, disciplinary actions or transfers.
It is illegal for Building Owners to:
• Threaten to have you fired, laid off or get rid of
cleaning workers because your support the Union.

Your bosses and the building owners have to respect your
rights. If they violate your rights, call SEIU Local 32BJ at
(860) 560–8674.

Our union represents more than 70,000 cleaning workers in
commercial and residential buildings in NY, NJ and CT.

SEIU Local 32BJ * 196 Trumbull Street, Hartford, CT 06103

When Castro, Cruz, and Rosario entered the building, Teran
confronted them. Teran asked the employees what that gentle-
man (referring to Gabriel) was asking them or telling them. One
of the employees answered that he was telling us about a union.
Teran told the employees that if the employees kept talking to
the Union they would be fired. Teran added that the employees
who worked beforehand (at Capitol Cleaning) “were fired be-
cause of that.”
A few minutes later, Cruz and Rosario were in Teran’s of-
fice. Teran asked Rosario if he was talking to Gabriel again,
and Rosario added that Gabriel had given him a union flyer.
Teran asked Rosario to give him the flyer because he was going
to save it for evidence. Rosario gave Teran the flyer that he had
received from Gabriel, set forth above.
On February 9, Teran was speaking with Rosario and Cruz
about various work-related issues. Teran criticized Rosario
because a new employee that Teran had asked Rosario to train
had forgotten to remove pizza boxes from the recycling bin.
Rosario replied to Teran that he (Rosario) was just a regular
employee and was helping him (Teran) out in giving training.
Rosario stated that if he was going to be in charge of the night
crew that he deserved a raise. After some further discussion
about a raise, Rosario mentioned that by law the employees
were supposed to be paid $12 an hour. Teran then stated that it
sounds like Rosario was talking to the Union and added that he
(Rosario) could get fired because of that. Teran also informed
Rosario that he (Teran) was going to call McSharry and inform
her that Rosario was talking with the Union.
The next day, Teran approached Rosario and informed him
that he did call McSharry and told her that Rosario had spoken
to the Union. Teran related to Rosario that McSharry had told
Teran that Rosario had his own rights and that he can talk to the
Union or to whomever he wants.10
Rosario ultimately received a raise from Teran in March.
Teran was terminated in May of 2012 for alleged sexual har-
10 McSharry denies ever speaking to Teran about this conversation
between Teran and Rosario or about Rosario’s speaking to the Union.
Teran did not testify.
assment. He was replaced as site supervisor by Rosario.
The above findings with respect to the comments made by
Teran to employees of Respondent in January and February of
2012 are based on a compilation of the mutually corroborative
and undenied testimony of Rosario, Cruz, and Castro. As noted
above, Teran did not testify.
H. Respondent’s Hiring Decisions
Respondent presented three witnesses, who testified in re-
gard to its hiring process and decision. Gulotta testified that the
Tribune Company, the parent company of the Hartford Courant
sent out a national bid covering newspapers owned by the Trib-
une in various parts of the country, including the Hartford
Courant properties. As noted above, Capitol Cleaning was the
incumbent contractor at the Courant’s Broad Street facility as
well as at two other facilities in Hartford, Wormley Street and
East Elliott Street.11
According to Gulotta, the bids were awarded facility by fa-
cility and were decided in a conference call with Tribune offi-
cials, in which he participated, sometime in November.12 Re-
spondent was awarded the janitorial contract at 285 Broad
Street as well as the contract to clean and maintain the press-
room at that facility, which it had been previously performing.
Capitol Cleaning as the low bidder for the Courant’s Worm-
ley and East Elliott facilities retained those locations, and Re-
spondent was not successful in its bids to service those facili-
ties.
Gulotta conceded that although he received the letter from
the Union with the applications of Capitol Cleaning employees
for employment to be forwarded to Respondent that he did not
turn it over to Respondent. Gulotta further testified that he was
aware of Respondent’s meeting on November 8 at the Courant
with Capitol Cleaning employees as a result of a conversation
with Steve Lilledahl on that day.
Lilledahl informed Gulotta that he was interviewing the Cap-
itol Cleaning employees that evening and according to Gulotta,
Lilledahl said that “I’m going to offer them jobs working for
me as Pressroom Cleaners employees.” Gulotta further testified
that he was not asked by Lilledahl nor any Respondent official
about any of the Capitol Cleaning employees and that he did
give any opinions, recommendations or information about any
of the Capitol Cleaning employees to Respondent. The only
item that Gulotta testified that he mentioned to Lilledahl about
employees was a complaint that he made to Lilledahl several
weeks before about Respondent’s employees at the pressroom
not signing in, which was a similar complaint that he had made
to Bob Smylon, president of Capitol Cleaning, about Capitol
Cleaning’s employees also failing to sign in when working at
the facility.
Gulotta testified further that about a week after the Novem-
ber 8 meeting, he saw Lilledahl and asked him how did the
meeting go with the Capitol Cleaning employees. According to
Gulotta, Lilledahl responded that Respondent was not success-
11 The employees at East Elliott Street and Wormley Street facilities,
although employed by Capitol Cleaning, were not represented by the
Union and did not have a union contract.
12 The contract was not actually signed with Respondent until No-
vember 18.

PRESSROOM CLEANERS 661
ful in hiring any Capitol Cleaning employees. Gulotta also
testified that Lilledahl said to him that he was disappointed that
the employees didn’t accept his offer.
Gulotta testified further that after November 8 he was push-
ing Respondent to get started at the Broad Street location as
soon as possible because he wanted that location to be the first
one of the Tribune bids to be up and running. Ultimately, the
Respondent was given a start date of December 12, and he
received several emails from McSharry in December, detailing
Respondent’s progress in that regard.
Finally, Gulotta testified about “shadowing,” which he de-
scribed as a process “where the contractor that was awarded the
bid comes in and they walk around the building and they see
how the building is being cleaned.” He further asserts that once
the contractors has “shadowed” the operation, they tell him that
they have seen what goes on and now were ready to start the
cleaning process. Gulotta further believed that the “shadowing”
by Respondent started in mid-November after the meeting with
the Capitol Cleaning employees.
Steve Lilledahl testified about the November 8 meeting with
the Capitol Cleaning employees. He testified that after he intro-
duced himself and McSharry and informed the employees that
Respondent would be the new contractor, he informed the em-
ployees that Respondent would pay $9 per hour with no bene-
fits and no union. According to Lilledahl, the employees did
not “react too good” to these comments. He added, “They were
not happy campers.” Lilledahl stated that he could tell from
their “body language” that they were unhappy and they were
sitting with arms crossed and were obviously upset. Lilledahl
added that one of the employees stated, “We must not be much
of a company if that’s all we can afford to pay.” Based upon the
above facts, Lilledahl testified that after this meeting, it was his
impression that these employees did not want to work for Re-
spondent.
Lilledahl insisted that he did not offer any jobs to anyone at
the meeting but merely informed the employees of what Re-
spondent was offering and that the employees asked for time to
decide if they were interested. Respondent agreed and informed
them to get back to Respondent if they were interested.
Lilledahl testified further that McSharry placed ads in
craigslist immediately after the November 8 meeting for jobs at
the facility, and Respondent received 35–40 applications.
Lilledahl testified further that after the meetings with the
Capitol Cleaning employees, he and McSharry were both upset
about what happened at the meeting and they were both stating
how sorry they felt for the employees. According to Lilledahl,
there was no discussion between Lilledahl and McSharry about
whether to hire these employees at that time, but he conceded
that, as of that time, Respondent was ready to hire them if they
were willing to work for $9 an hour and no benefits. Indeed,
Lilledahl further conceded that in many of the contracts that
Respondent acquires, it will normally hire the employees previ-
ously working at the particular locations.13
Lilledahl recalled that about a week after the November 8
13 Notably, Lilledahl further conceded that none of these prior loca-
tions, where Respondent hired the workforce employed by the prior
contractor, involved employees, who had been represented by a union.
meeting with the Capitol Cleaning employees, McSharry re-
ceived notification from the Capitol Cleaning employees that
all of these employees were interested in working for Respond-
ent. Lilledahl was uncertain and vague about how the process
continued and the ultimate decisions made, testifying that
McSharry was primarily responsible for the subsequent inter-
views and decisions. Lilledahl did testify finally, after some
prompting, that he and McSharry, at some point, decided to
continue with the interviewing, notwithstanding the acceptance
by the Capitol Cleaning employees of jobs, to see what Re-
spondent had and then would make a decision.
Lilledahl further testified that, at some point in December, he
and McSharry “shadowed” the Capitol Cleaning employees for
2 or 3 days, and both concluded that the Capitol Cleaning em-
ployees were “slow,” and he did not believe that they would be
able to do the job quickly enough. Finally, Lilledahl testified
that when Respondent decided not to hire any of the former
Capitol Cleaning employees, their union affiliation played no
part or role in that decision.
McSharry was Respondent’s final witness. She testified that
the contract for the job at 285 Broad Street was bid by Re-
spondent based on a projection of 6.25 FTEs at a salary of $9
per hour with no benefits. She also testified that sometime in
September, she was informed by her grandfather, Roy
Lilledahl, that Respondent had received job applications from
the Union on behalf of the former Capitol Cleaning employees.
However, at that time, Respondent had not been awarded the
contract as of yet.
According to McSharry, at the end of October, she partici-
pated in conference calls with Tribune representatives, wherein
it was disclosed that Respondent had been awarded the bid to
clean offices at 285 Broad Street (replacing Capitol Cleaning)
as well as that it had retained its previous contract for cleaning
and maintaining the pressroom at that facility, plus that it had
also won bids at several other Tribune sites in the State of Flor-
ida for cleaning offices, where it had previously serviced only
the production sites for those papers.
At that time, Respondent had just lost its contract for work at
the Tampa Tribune in Florida, resulting in an entire crew being
out of work. Pursuant to the Tribune contract, described above,
Respondent was awarded the bid for the Orlando Sentinel con-
tract. Therefore, Respondent decided to take care of these mat-
ters first and arrange to put the crew that had been working for
Respondent at Tampa to transfer to the Orlando site. This pro-
cess required the attention of McSharry and Lilledahl, so it
decided to hold off staffing the Hartford location until it com-
pleted the transition between Tampa and Orlando.
According to McSharry, Gulotta was pressing Respondent to
get moving on starting up in Harford because he wanted to be
one of the first of the Tribune contract locations to start opera-
tions. Notwithstanding that fact, Respondent did not make any
efforts to staff the Hartford location until November 8 when
finally McSharry and Lilledahl came to Hartford to check out
the premises, inventory and other startup issues and to conduct
interviews. This was, as McSharry testified, because “Bernie
wanted to start sooner than later.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 662
Pursuant, therefore, Respondent placed an ad on craigslist14
on November 8, the date that Respondent’s representatives
arrived at the facility. McSharry testified that she had been
using craigslist for about 18 months and found it to be a great
resource. Prior to that time, McSharry states that Respondent
would primarily obtain staff from recommendations, often from
the contractor.
In that regard, McSharry testified that she had spoken to
Gulotta about the Capitol Cleaning employees prior to setting
up the interviews and that Gulotta had made “insinuations” that
there had been issues with employees Eddy Williams and Ra-
mon Garcia. More specifically, McSharry testified that Gulotta
informed her that they had been observed sleeping on the job.
Subsequently, McSharry spoke to Madiera and told him to
instruct only the six employees to show up for the interviews on
November 8, According to McSharry, Respondent decided it
would not be necessary to interview Garcia or Williams, and
therefore, to eliminate them from consideration or employment
“because of the recommendation from our bosses.”15
McSharry’s testimony about the interviews is relatively con-
sistent with the facts described above as to what was stated
during the meeting. McSharry testified that it was obvious to
her that employees were very upset about the reductions in
wages and benefits and that they reacted negatively towards
Respondent. McSharry testified, “At that point in time, I felt
like I killed their pets or something.” Thus, she asserts that she
was uncertain whether any of the employees were interested in
working for Respondent.
McSharry admitted that about a week after the meeting, she
was notified by both De Jesus and Hovhannisyan that all six of
the former Capitol Cleaning employees were interested in
working for Respondent at $9 per hour with no benefits.
When asked on direct testimony by her counsel why Re-
spondent didn’t hire them at the time, she explained Respond-
ent’s reasons. This exchange is set forth below:

Q: At that time, did you tell either—Well, did you tell
Razmik okay, you’re hired?

A: No.

Q: Why not?

A: Because there were some issues as far as the flexibility
that they would have as employees for us, as far as, when
you’re starting these, it’s very difficult. We’re working all
kinds of hours.

Q: Any other concerns that you had?

A: They were extremely disgruntled with us. When me and
my dad start a contract, we’re usually only there as long as we
need to be and then, we walk away and they usually run
themselves. I mean, this is how we bid them. This is why we
are so much cheaper is because we go out, we start them, we
14 Craigslist is a website that runs ads for various types of items.
15 Referring to Gulotta’s alleged complaints about these two em-
ployees. As I have noted above, Gulotta denied making any negative
comments to Respondent about any employees, although he was not
asked specifically if he made any comments about Garcia or Williams
or if they had been observed sleeping on the job.
manage them from afar and I do quarterly visits in and check
in with everybody.
So, when you’re walking away from something, you
want to make really, really sure you have the utmost con-
fidence in your people.

McSharry further testified Respondent had received a “stel-
lar” response from the ads that it placed on craigslist on No-
vember 8. Nonetheless, McSharry did not interview or contact
any of the individuals, who responded to the November 8 ad in
craigslist at that time.
She testified that she and her father were busy on a job in
Uniontown, Pennsylvania, and then in completing the transition
between Tampa and Orlando, as described. Thus, Respondent
did not get around to returning to Hartford until December 6
when McSharry decided to run another ad in craigslist for jobs.
According to McSharry, she did so to again see what the hir-
ing market in Hartford was like and added that at that time, no
decision had been made concerning who would be employed at
the Hartford facility. She replied, “No, and from my position, it
would have been easier if we could have gone. You know if we
did go with the Capitol Cleaning employees.”
When asked why was Respondent concerned that they were
not the right people for the job, McSharry asserted that Re-
spondent had spent a few days “shadowing the employees” and
concluded that they were moving too “slow” and that Respond-
ent concluded based on these observations that the employees
“were not going to be able to cut it with what they were show-
ing us.” She further noted that Respondent’s bid the job based
on 6.25 FTEs and that Capitol Cleaning based its bid on 8
FTEs. Thus, she contends that she and her father believed that
these employees worked too slowly to be able to meet the bid
requirements. McSharry testified that she, her father and Joe
Pena shadowed the employees for 3 days, Wednesday, Thurs-
day, and Friday, December 6–8, before the job started on Mon-
day, December 12. According to McSharry, she personally
“shadowed” five of the former Capitol Cleaning employees16
and that Pena and Lilledahl shadowed these employees as well.
She further testified that as a result of the “shadowing,” she
and her father concluded that the former Capitol Cleaning em-
ployees would not be hired and that Respondent would hire its
staff through the interview process and the ads from craigslist.
McSharry furnished testimony about the individuals that Re-
spondent decided to hire while rejecting the former Capitol
Cleaning employees.
McSharry stated further that Respondent again received sig-
nificant numbers of responses to the December 6 craigslist ad.
She added that in the November ad she had not posted a phone
number but in the December ad, she did so and received nu-
merous phone calls, emails, and resumes. According to
McSharry, the first two applicants whom she interviewed in
December were Rosario and Joel Buhanji, whom she met with
at Friendly’s Restaurant on December 8, both of whom came
through the craigslist ads. McSharry testified that both Rosario
and Buhanji had prior experience in the cleaning field and
seemed to her to be motivated, energetic, and that they would
16 All except Daniel Korzeniecki, who worked as a day porter.

PRESSROOM CLEANERS 663
be flexible. She believed that they would be good employees
but contends that she did not offer either of them a job during
the interview. She did ask them to fill out paperwork, and it
was necessary to conduct a background check before offering
anyone a job.17
McSharry testified further that after the Thursday, December
8 interviews with Buhanji and Rosario, Respondent “shad-
owed” the five employees once again that evening and con-
cluded that these five worked too slowly. According to
McSharry, she and her father had a discussion on Thursday
evening, December 8, and decided not to hire any of the former
Capitol Cleaning employees. She testified that “this contract
isn’t going to work if they’re moving the way that they’re mov-
ing now. We’ll have to hire a lot. I mean we’re looking at a lot
more full-time employees than we had originally bid.”
Accordingly, McSharry contends that on Friday, December 9
and Saturday, December 10, Respondent conducted interviews
with a number of applicants and eventually hired an initial crew
of nine employees plus Supervisor Pena, starting on Monday,
December 12.
On Friday, December 9, McSharry sent an email to Gulotta
at 3:40 pm as follows:

From: Sierra Lilledahl [hartfordjobsprc@llve.com]
Sent: Friday, December 09, 2011 3:40 PM
To: Gullotta,Bernie; theresa@pressroomcleaners.com
Subject: Update

Bernie,
I wanted to update you on our progress. We currently have a
crew of six. I have four more interviews on Saturday (to fill
p/t weekend positions and one more third shift position). I am
very excited about the employees! All have over 2+yrs expe-
rience in the janitorial field. We are conducting staff safety
training and orientation Saturday morning at 9am. All of our
paper products, chemicals, and equipment are onsite and be-
ing put away/assembled. Joe’s email and computer are up and
running! We shadowed Capitol Cleaning last night ad will do
the same Saturday and Sunday night (full crew).

Hope you have a great evening!!!!!!

Sincerely,
Sierra
402–290–6455

As always, if you have any questions and/or concerns please
do not hesitate to contact me ANYTIME!

McSharry testified that the crew of six referred to in her De-
cember 9 email included Supervisor Pena, Rosario, Buhanji and
applicants Paige James, Heriberto Ramirez, and Juan Cruz.
Cruz and Ramirez were, according to McSharry, both recom-
mended to Respondent by Rosario during his interview.
Cruz was interviewed (in a group) on December 9 by
McSharry, Lilledahl, and Pena. Cruz had no experience in the
janitorial field. As noted, he had been recommended by Ro-
17 Rosario, who, as noted, was eventually promoted to supervisor in
May of 2012, testified, contrary to McSharry, that he was offered a job
by McSharry on the same day of this interview, December 8, 2012.
sario, who was interviewed by Respondent on December 8.
Rosario informed McSharry during the interview that he had
some friends that were interested in employment for any avail-
able positions. Rosario, therefore, arranged for both Cruz and
Ramirez to interview with Respondent the next day, December
9.
Cruz, as noted above, was hired by Respondent and was part
of its initial crew that started on December 12 and is still em-
ployed by Respondent. Cruz, as also reflected above, had no
experience in the industry18 but, according to McSharry, was
hired by Respondent because she had gotten a good feeling
from Rosario and that she decided to hire Cruz based on Ro-
sario’s recommendation, plus the fact that Rosario stated to her
that he would assist in training Cruz if Cruz were to be hired.
Respondent also hired Ramirez on December 9, who was al-
so recommended by Rosario. According to McSharry, Ramirez
was very experienced in the janitorial field, and Respondent
wanted to hire him as a full-time day porter.19
Paige James was interviewed and hired on December 9. Ac-
cording to McSharry, she answered Respondent’s craigslist ad
and had cleaning experience. McSharry stated that James and
her sister-in-law had their own subcontracting company, where
they did building cleaning.20 McSharry also testified that James
seemed to her during the interview to be “extremely motivated,
a self-started.” James was hired for a full-time position on the
“graveyard” shift, where she would be working by herself.
The rest of Respondent’s initial crew (starting on December
12) was interviewed over the weekend of December 9 through
11. They were Francisco Teran, Felix Roman, Christopher Mar-
tinez, and Wesley Mendez.
McSharry testified that Teran had 14 years of experience in
the janitorial field,21 and he was interviewed and hired on De-
cember 10 for a part-time position as a cleaner. According to
McSharry, Teran was extremely energetic and was working at a
dealership at the time and only wanted part-time work. Howev-
er, Teran express, according to McSharry, during the interview,
that he was flexible and anytime Respondent needed him, he
would be available.22
Felix Roman was also interviewed and hired on December
10. According to McSharry, Respondent hired him because he
was “extremely flexible” and indicated during the interview
that he would work whenever Respondent wanted him and was
okay with $9 per hour. Further, he had done some janitorial
work before.23
18 His job application listed his previous jobs as picking fruit and de-
livering pizza.
19 I note, however, that Ramirez’s job application did not list any ex-
perience in the janitorial field. The jobs listed were fork lift operator
and receiver (and loading merchandise).
20 James’s job application did list a company named T&D Cleaning
Service, where she worked from February through September of 2011.
21 I note that his job application did not list any such experience. The
only job listed was his position at Liberty Mazda.
22 As also related above, Teran was subsequently promoted to site
supervisor in January of 2012 when Pena left to return to Nebraska.
23 Roman’s job application reflected, in fact, that he had worked at
Capitol Cleaning between 2005 and 2006, cleaning offices and bath-
rooms before moving to Puerto Rico.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 664
Christopher Martinez was also interviewed and hired on De-
cember 10. According to McSharry, during his interview, he
appeared to be flexible, really wanted to work and was very
energetic. She did not testify that Martinez had any previous
janitorial or cleaning experience and his job application did not
so reflect.24 Martinez started out on the evening shift as a part-
time employee, and then after James was terminated, Martinez
was transferred to her full-time position on the “graveyard”
shift.
The final employee hired by Respondent as part of its initial
crew was Wesley Mendez. According to McSharry, Mendez
was recommended to her by Respondent’s pressroom manager
at the Hartford facility. McSharry testified that Mendez had
previous experience working and loading fruit and had mainte-
nance rather than cleaning experience. McSharry added that
like Martinez, Mendez was very energetic during the interview
and appeared to her to be really wanting to work for Respond-
ent.
McSharry further testified that of its initial crew of 8 em-
ployees, plus Pena, the supervisor, only two were full-time
employees, the day and night porters (James and Ramirez). The
rest were all part-time employees.
McSharry also testified that she had interviewed and hired
Lizzette Escobar for the night porter position (11 pm to 7 am
shift) because Escobar had excellent experience cleaning at
hotels but that Escobar would not start work on December 12
due to some medical issues, so she was not part of Respond-
ent’s initial crew. McSharry also testified that Escobar was
extremely motivated and really wanted the night shift, grave-
yard position, which is difficult to fill.25
Subsequent to the initial start date, the record establishes,
and McSharry concedes, that Respondent experienced a signifi-
cant amount of turnover requiring Respondent to hire a number
of new employees. For example, Mendez, Ramirez, and James
were all terminated by Respondent after a short time as em-
ployees of Respondent.
McSharry testified that Respondent did not consider for hire
or hired any of the former Capitol Cleaning employees for the-
se openings for the same reasons that she testified that it did not
have them initially. These new employees were hired on vari-
ous dates in January through April of 2012.
The bulk of these employees were hired by Respondent’s su-
pervisors, Teran or Pena. One of these employees was Jonas
Borja, hired on December 21, 2011. His job application listed a
previous position as driver and paver on machines and trucks,
but no experience as a cleaner.
Evelyn Martinez was hired on January 6, 2012. Her job ap-
plication did not list any previous cleaning experience.
Ruth Rodriguez was hired on February 3, 2012, and her job
application lists a previous job at a company named DMS Sys-
tems in Windsor, Connecticut, but does not reflect what her
24 It listed a previous job at Price Rite as a cashier, produce and carts
and at a bug company.
25 The resume submitted by Escobar reflects that she had previous
experience as a housekeeper, cleaning and maintaining rooms, remov-
ing trash, sweeping and mopping for both a nursing home and hotel.
position or job responsibilities were at that job.26
Aponte Celliness was hired on January 20, 2012, and her job
application did not disclose any janitorial experience. The only
position that she listed was a temporary position at an agency
doing gift fill out and putting food in baskets. She added that
she cleaned her area of work in that position. Celliness, accord-
ing to the document submitted by Respondent, resigned on
February 5, 2012.
Ricardo Lopez was hired on January 20, 2012. His job appli-
cation listed that he had been employed by the Hartford Hospi-
tal but did not list the position, job duties performed or dates of
service at this employer. Lopez was terminated on April 15,
2012, according to Respondent’s document.
Catherine Roman was hired on December 26, 2011, and the
document submitted to the Region referred to above, prepared
by Respondent’s human resources department, reflected that
she was terminated on January 8, 2012. Her job application
listed previous positions as a cashier at Hometown Buffet and
at Holiday Inns, listing a job title as maintenance and duties or
skills as transportation and at a convention center as a on-call
position as bar tender.
The aforementioned document of Respondent submitted by it
to the Region also reflected the names of Edison Martinez and
Bryan Escobar, stating that both of these individuals were hired
by Respondent on December 12, 2011, and terminated by Re-
spondent on January 8, 2012. There were no job applications
for these individuals in the record.
As detailed above, Madelyn Castro, who testified in this pro-
ceeding, was hired on January 8, 2012. She was recommended
by relatives of hers, who worked for Respondent, and was in-
terviewed and hired by Teran. As also reflected above, Castro
had no prior experience in the cleaning industry, testifying that
she cleaned her house.
McSharry, who had, as noted, emphasized the “flexibility” of
the employees whom she hired and her perception that the Cap-
itol Cleaning employees lacked such flexibility, in her direct
testimony, backed off that assertion when pressed in question-
ing by me and admitted that this alleged flexibility was not a
reason why Respondent did not hire the former Capitol Clean-
ing employees. She candidly conceded, “I didn’t know what
their flexibility was. I never got an opportunity to ask them
that.” Thus, McSharry, at that point, stated that the only reason
that Respondent decided not to hire the Capitol Cleaning em-
ployees was the “shadowing” that she had testified about and
“how fast they moved” when Respondent shadowed them.
In regard to the alleged “shadowing,” as I related above,
McSharry admitted that she never “shadowed” or observed
Korzeniecki, who did not work the night shift, and Respondent
presented no evidence that either Lilledahl or Pena shadowed
Korzeniecki and reported on his performance.
Additionally, employee De Jesus testified that none of Re-
spondent’s supervisors watched or observed her working in
December of 2011 or at any other time. Furthermore, McSharry
insisted that she and Respondent’s officials shadowed all five
of the Capitol Cleaning employees, who were present at the
26 A document submitted by Respondent reflected that she was ter-
minated on April 15, 2012.

PRESSROOM CLEANERS 665
November 8 meeting, including Lubowicka.
However, the record reflects based on Lubowicka’s unrefut-
ed testimony that her last day at work at the Hartford Courant
facility was November 23, 2011, and that she left the country at
that time to go to Poland due to a health crisis involving her
sister. She did not return to the United Sates until December 18,
2011, when she was informed by De Jesus that the new compa-
ny (Respondent) had taken over on December 12 and did not
hire any of the former Capitol Cleaning workers.
Additionally, McSharry conceded in her testimony that nor-
mally the reasons for shadowing of the prior contractor were to
get familiar with the building and obtain information, such as
where the janitor’s closets are and where the keys are to the
toilet paper canister. That admission is consistent with Gulot-
ta’s testimony as well as Respondent’s own emails to Gulotta
on December 9, set forth above, when McSharry informed
Gulotta that Respondent had shadowed Capitol Cleaning last
night and will do the same Saturday and Sunday as well as
another email from McSharry to Gulotta, dated Sunday, De-
cember 10 at 6:46 p.m. This email is as follows:

From: Sierra Lilledahl [hartfordjobsprc@live.com]
Sent: Saturday, December 10, 2011 6:46 PM
To: Gullotta, Bernie
Subject: Re: Update

Good evening Bernie,

We are fully staffed, with a crew of 8 and Joe. The new even-
ing crew is here shadowing the staff and going through the
motions. The weekend day porter starts tomorrow morning @
7:30 am. Tomorrow I will supply you with a copy of our
schedule for review.

HAVE A GREAT NIGHT!

-Sierra

Finally, Respondent’s attorney submitted a letter and sup-
porting documents in connection with the investigation. In the-
se documents, Respondent explained its reasons for not hiring
any of Capitol cleaning employees and for hiring others in-
stead.
With respect to Williams and Garcia, the letter stated that
although Respondent had received job applications from all
eight Capitol Cleaning employees, that Respondent “was ad-
vised by the Hartford Courant not to interview” Garcia and
Williams and that, therefore, Respondent did not interview or
consider these two individuals for employment.
The document further reflects that Respondent interviewed
the remaining Capitol Cleaning employees on November 8,
2011. According to the letter, the employees at the meeting
“appeared disgusted with the offer of $9.00 per hour,” they
were rude and visibly upset and were clearly unhappy with the
wages Respondent was offering. The letter further states that
McSharry and Lilledahl “were greatly concerned when this
group of employees left that they would not be interested in
working for the company at $9.00 per hour and would not
comprise a happy crew. . . It was critical that there be some
enthusiasm and flexibility for those in the group to work this
job. All in the group displayed a disgruntled attitude toward
Sierra and Steve Lilledahl.”
The letter goes to say that, subsequently, Respondent re-
ceived notification that three of the individuals were willing to
work at $9 per hour.27
However, by that time, according to the paper, Respondent
had run its first advertisement in craigslist, had received com-
munications from a number of applicants, who had expressed to
Respondent “flexibility and enthusiasm to work at this job,”
which “were key components of these discussions with poten-
tial candidates.”
The paper also noted that ultimately the staff hired consisted
of only three full-time positions and all other jobs filled were
part-time or supervisory. It further stated that Respondent re-
duced the number of man hours to equal 7.5 full-time positions
while previously Capitol Cleaning utilized 8–9 full-time em-
ployees.
It goes on to state that Respondent filled its crew in during
interviews conducted on December 8–11, 2011, and hired its
staff. It explained its reasons for hiring those ultimately hired
and for not hiring the former Capitol cleaning employees as
follows:

The reasons the individuals identified in Attachment 9 were
hired was that they had a willingness to be flexible with the
demands that Pressroom places on its employees and would
work as a team. Except for those who accepted lead positions,
all were willing to work part-time. The candidates chosen had
experience in the janitorial field and exhibited an eagerness to
work at this position at a rate of $9.00 per hour. Since these
jobs did not require much skill, experience working as a jani-
tor was not a high priority; flexibility and a willingness to
work with Pressroom’s guidelines with little supervision. The
former Capitol employees who said they were willing to work
were considered to the very end. However, the other candi-
dates chosen were a better fit for the work and for Press-
room’s demands. The Capitol employees were not happy with
the compensation. Pressroom was concerned that these indi-
viduals would not be willing to work a part-time position for
any length of time as they had previously worked full-time at
Capitol. Most of those individuals who accepted part-time
employment had full-time jobs during the day.

Pressroom’s intention was to provide services on a more
streamlined basis, reducing the crew by one to two full-time
positions. More flexibility is demanded of the crew, many
times being required to come back to work at the request of
the Hartford Courant.

At another point in the paper, Respondent explained its rea-
son for not hiring Figueroa, as follows:

Mr. Emilio Figueroa applied as the day porter (lead man) for a
full-time position. Mr. Figueroa was not hired for that position
because he could not read or write in the English language.
These skills are critical for this position as it is necessary for
the day porter to be able to communicate with the Hartford
Courant both verbally and in writing if any issues arise during
27 These three were, according to the document, were Lubowicka,
Hovhannisyan, and Zhamkochyan.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 666
a given work day.

Finally, in another section of the document argues further
why it did not hire the former Capitol Cleaning employees. It
stated:

When these individuals left the meeting on November 8,
2011, they had not accepted a position at $9.00 an hour. It did
not appear that they would be willing to accept a job at $9.00
an hour, stated they would get back to Pressroom a day later.
They did not get back to Pressroom for several days. The
Lilledahls were left with the impression that if they hired the-
se applicants they would not have a group that was satisfied
with working there which would make it difficult for the
cleaning team to work cohesively. An individuals’ enthusiasm
for the position is important for Pressroom as they maintain
high standards as relates to the quality of their work and their
responsiveness to the Hartford Courant and its staff. Since
neither Steve nor Sierra Lilledahl could be there overseeing
their work, an eagerness to work at the location was im-
portant.

Most significantly, there is not a single word in this docu-
ment that refers to Respondent “shadowing” the former Capitol
Cleaning employees or that it observed any of these employees
working or that such “shadowing” or observation of these em-
ployees played any role in Respondent’s decision not to hire
them.
ANALYSIS AND CONCLUSIONS
A. The Conduct of Steve Lilledahl
On November 8, Respondent conducted a meeting with five
former Capitol Cleaning employees, who had applied for jobs
with Respondent. Lilledahl, in the course of informing the ap-
plicants that Respondent paid employees $9 per hour with no
benefits, also told them that Respondent is nonunion, does not
work with unions, does not deal with unions and does not want
a union at all. I note that Respondent’s own representatives
admitted that Lilledahl informed the five Capitol Cleaning em-
ployees that Respondent was a nonunion company.
I find in agreement with Charging Party and General Coun-
sel that the comments made by Lilledahl to the prospective
employees were coercive and unlawful, even crediting the ver-
sion of Respondent’s witnesses that he merely stated that Re-
spondent was nonunion.
In Kessel Food Markets, 287 NLRB 426, 427 (1987), enfd.
868 F.2d 881 (6th Cir. 1989), the Board found that statements
made to applicants for employment by officials of the prospec-
tive successor employer that the stores would operate non-
union were coercive and violative of Section 8(a)(1) of the Act.
The Board reversed the judge, who had found such comments
not to be unlawful or coercive since absent a successor obliga-
tion the employer was free to operate on a nonunion basis. The
Board observed as follows:

The Charging Parties contend that the judge misinter-
preted Burns and Howard Johnson, and that an employer
is not always free to commence operations on a nonunion
basis. They further argue, contrary to the judge’s finding,
that the Respondent, not the applicants, in most instances
initiated the discussion about the stores’ nonunion status.
They also contend that even if the applicants did initiate
the discussion, the statements are nevertheless coercive
and violate Section 8(a)(1). We agree with the Charging
Parties. Burns and Howard Johnson hold that although a
purchasing employer has no obligation to hire the seller’s
unionized employees, it may not refuse to hire those em-
ployees because they are union members or to avoid being
required to recognize the union. Under Burns, the purchas-
ing employer has an obligation to recognize and bargain
with the union if a majority of the purchaser’s employees
were previously employed by the seller and were repre-
sented by the union. Thus, the employer does not know
whether it will be union or nonunion until it has hired its
work force. When an employer tells applicants that the
company will be nonunion before it hires its employees,
the employer indicates to the applicants that it intends to
discriminate against the seller’s employees to ensure its
nonunion status. Thus, such statements are coercive and
violate Section 8(a)(1). See Potter’s Chalet Drug, 233
NLRB 15, 20 (1977), enfd. mem. 99 LRRM 3327 (9th Cir.
1978); Love’s Barbeque Restaurant No. 62, 245 NLRB 78,
124 (1979), enfd. in pertinent part 640 F.2d 1094 (9th Cir.
1981). Id at 429.

The principles and analysis of Kessel Food, supra has been
followed and applied in numerous subsequent Board and court
decisions. Smoke House Restaurant, 347 NLRB 192, 193, 203
(2006) (statement that employer was a nonunion restaurant and
that it would not be a “union house”); Eldorado Inc., 335
NLRB 952, 953 (2001), statement by employer in response to
question by prospective employees about “retaining the union”
that “the business would be non-union,” unlawful and coercive,
even though he added “if you guys want a union it’s up to you.”
Board citing Kessel Food, reiterates that such comments made
by a potential successor employer, who does not know whether
it will hire a majority of the predecessor’s employees, tells
applicants that it will be nonunion, it indicated that it intends to
discriminate against the predecessor’s employees to insure its
nonunion status); Advanced Stretchforming Inc., 323 NLRB
529, 530 (1997), enfd. in relevant part 233 F.3d 1176 (9th Cir.
2000) (informing potential applicants for employment that it
intends to operate nonunion, unlawful, and coercive. Board
observes, “A statement to employees that there will be no union
at the successor employer’s facility blatantly coerces employees
in the exercise of their Section 7 rights to bargain collectively
through a representative of their own choosing and constitutes a
facially unlawful condition of employment.”);28 Commercial
Erectors, Inc., 342 NLRB 940, 942 (2004) (statement to job
applicants that company will not go union, unlawful threats that
attempts to unionize employer would be futile); Brown & Root
Inc., 334 NLRB 628, 630 (2001), enf. denied 333 F.3d 628 (5th
Cir. 2003) (statement by employer representative that it was a
28 The Ninth Circuit’s opinion enforcing in relevant part the Board’s
order observed, “Having been informed when invited to apply for work
with ASI that there would be no union at the new company, aero-
workers may well have believed that employment with ASI was con-
tingent on abstaining from union representation.” 233 F.3d at 1181.

PRESSROOM CLEANERS 667
“non-union” company and “intended to stay that way,” viola-
tive of Section 8(a)(1) of the Act); Galloway School Lines, 321
NLRB 1422, 1432 (1996) (statement by employer that compa-
ny was not union and that it will never be union); Ryder Truck
Rental, 318 NLRB 1092, 1094–1095 (1995) (statements made
to job applicants that facility was to be a nonunion shop, unlaw-
ful citing Kessel Food, supra); Williams Enterprises, 301
NLRB 167 (1991), enf. in pertinent part 956 F.2d 1226, 1234
(D.C. Cir. 1992) (statement by potential successor employer
that “it intended to operate the Richmond plant as a non-union
plant,” coercive and unlawful since it announces to prospective
employees its intention to remain nonunion and implicitly con-
veyed a message to those individuals that “any conduct which
is not consistent with that stance may jeopardize their employ-
ment possibilities or security,” 301 NLRB 167–168); Worcester
Mfg., 306 NLRB 218 (1992) (informing employees that it ex-
pects to operate nonunion); Bay Area Mack, 293 NLRB 125
(1989) (Board reverses judge and finds based on Kessel Food,
supra that employer’s statements to applicants that it was start-
ing up as a nonunion company to be violative of the Act).
Respondent cited Brown & Root, the Fifth Circuit’s decision
in Brown & Root, supra, 333 F.3d 628, wherein it denied en-
forcement of a Board decision and concluded that statements by
a management official of Brown & Root, a potential successor
employer, who was in the process of interviewing applicants at
a previously unionized portion of a facility, that Brown & Root
was a nonunion company, intended to stay that way and if the
applicants come to work for them, “they would be non-union”
were protected by Section 8(c) of the Act and employees could
not be reasonably threatened by such comments.
I observe, initially, that I, as an administrative law judge, am
bound by Board law and not the Circuit’s reversal of the Board
decision in Brown & Root, which decision is still binding Board
precedent, particularly, since it is supported by the numerous
other cases that I have cited above.
Nonetheless, the facts in Brown & Root, supra are signifi-
cantly distinguishable from the instant case in several respects.
It is noted that the court therein relied on the fact that the com-
pany official’s response came from a question from one of the
applicants and that he did not make any unsolicited comments
about the union’s future. In contrast, here, Lilledahl’s state-
ments about the Union and the Union’s future were made in
unsolicited comments, not in response to questions, and were
much stronger definitive and coercive.29
Moreover, the Court noted that the statements were made in
the context of the plant, where Brown & Root already em-
ployed 200 nonunion employees, and if there were only one
bargaining unit, 20 union employees would not change Brown
& Root’s nonunion status. Indeed, the Court relied on the
Board’s decision in P.S. Elliott Services, 300 NLRB 1161, 1162
(1990), also cited by Respondent, wherein it dismissed an
8(a)(1) allegation when a potential successor employer’s repre-
sentative, in response to a question from a predecessor’s em-
ployee, stated that the employer was a “non-union company.”
29 Lilledahl told the Capitol Cleaning employees that Respondent is
nonunion, does not work with unions, does not deal with unions, and
does not want a union at all.
The Board in P.S. Elliott reversed the judge, who had found the
comments to be unlawful, citing Kessel Food, supra. The Board
emphasized, in finding the statement to be lawful and non-
coercive, that it was made in response to an employee question
and not accompanied by any threats, interrogations or other
unlawful coercion. Further, the Board observed that in light of
the employer’s preexisting operation as a nonunion company,
its official’s statement continued “a truthful statement of an
objective fact.” Id. at 1162.
Notably, in P.S. Elliott, supra the Board also dismissed the
judge’s finding of an 8(a)(5) violation for the employer’s re-
fusal to recognize and bargain with the union, despite it having
hired a majority of its employees from the predecessor’s unit.
The Board concluded that the predecessor’s unit was not an
appropriate unit in circumstances therein. Thus, the employer
services 90 cleaning accounts and employed 175 employees.
Further, the evidence disclosed centralized management, fre-
quent transfers of employees between jobsites from building to
building30 and uniform personnel and benefits to each location.
Further, there was no onsite supervisor so that all employees
were commonly supervised out of the central office. Based on
such evidence, the Board concluded that employees at the par-
ticular location when the employer was awarded the contract31
did not have a community of interest sufficiently distinct and
separate from the employer’s other employees to warrant the
establishment of a separate appropriate unit.
According, the Board dismissed the entire complaint. Id. at
1162.
Clearly, the facts, herein, are far different from both Brown
& Root and P. S. Elliott relied upon by Respondent. Notably,
the Board in Brown & Root distinguished P.S. Elliott on the
grounds that there the employer stated only that the company
was nonunion but that it in Brown & Root, it added an unlawful
threat of futility by commenting that “it intended to stay that
way,” 334 NLRB at 630, citing Galloway School Lines, supra,
321 NLRB at 1433.
Furthermore, I note that the Board in Williams Enterprises,
supra, a post-P.S. Elliott case, affirmed a judge’s finding that a
statement by a prospective successor that it “did intend to oper-
ate the Richmond plant as a non-union plant” was coercive, as I
detailed above. Notably, that case was appealed to the D.C.
Circuit, where the Court affirmed the Board’s finding of a vio-
lation and distinguished P.S. Elliott, which had been relied
upon by Williams Enterprises. The Court instead relied upon
Kessel Food, supra in finding the employer’s conduct unlawful
since in P.S. Elliott, unlike Williams Enterprises, and unlike
here, the employer had an “objective basis” on which it would
base its statement that it would remain nonunion, 956 F.2d at
1235 (i.e., that the employer in P.S. Elliott knew that it would
not be a successor employer obligated to bargain with the union
since the predecessor’s unit, therein, was inappropriate).

30 Even though no transfers were made to the location in question.
The employer testified that it did not make anyone such transfers be-
cause of the litigation of the Board matter.
31 There were seven employees from the predecessor’s workplace
hired by the employer, which constituted its entire work force at the
building.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 668
The Court’s opinion in that regard is set forth below:

This statement, the ALJ concluded, was the sort of statement
that indicates to employees that “any conduct by them which
is not consistent with the ukase may jeopardize their employ-
ment possibilities or security.” ALJ Opinion at 12. We find no
reason to disturb that finding.

Williams argues that Kessel does not apply here because
Barnes’s statement at the August meeting did not say that
Williams intended to remain nonunion “at all costs.” But we
do not read the Board’s decision in Kessel to require an inten-
tion to remain nonunion at all costs. Kessel simply states that
“[w]hen an employer tells applicants that the company will be
nonunion before it hires its employees, the employer indicates
to the applicants that it intends to discriminate against [them]
to ensure its nonunion status.” Kessel, 287 NLRB at 429. A
successor employer need not necessarily say that it intends to
remain nonunion “at all costs” to send the coercive message
to potential employees.

Williams also argues that this case is more like P.S. Elliott
Services, Inc., 300 NLRB No. 162, slip op. at 6 (Dec. 31,
1990), where the Board held that an employer’s statement to
potential employees that it was “a nonunion company” was
not an 8(a)(1) violation. However, in P.S. Elliott, the new em-
ployer knew, when it absorbed seven of the predecessor’s
eight employees into its workforce of approximately 175 em-
ployees, that it would never reach successor status. Therefore,
as the Board in P.S. Elliott explained, the employer had an
“objective basis” on which it could base its statement that it
would remain nonunion. Id.

But Williams did not have an objective basis for its statement
that the plant would be nonunion. Unlike the employer in P.S.
Elliott, Williams did not know, before it made its hiring deci-
sion, whether a majority of its production staff would be for-
mer Bristol workers. Id at 1235.

Notably, the Court’s opinion in Brown & Root, reversing the
Board’s finding of a violation, relied on the fact that the state-
ments of the Brown & Root official “were made in the context
of a plant where Brown & Root already employed 200 non-
union employees, and if there were only one bargaining unit, 70
union employees would not change Brown and Root’s non-
union status.” 333 F.3d at 639. Thus, the Court found the acts
similar to P.S. Elliott and its statement that it intended to stay
nonunion was not coercive since the hiring of the predecessor’s
employees would not change Brown & Root’s nonunion status.
Thus, the Court reasoned that as in P.S. Elliott, the employer in
Brown & Root was merely stating an objective fact and was not
coercive or unlawful.
Clearly, the facts, here, are significantly different from
Brown & Root and P.S. Elliott and are closer to Kessel Food
and its progeny. Thus, here, Respondent, like the employers in
Kessel Food and Williams Enterprises, did not know whether a
majority of its staff would be made up of former Capitol Clean-
ing workers. Further, unlike, P.S. Elliott and Brown & Root,
there can be no question that the predecessor’s bargaining unit
at the Hartford Courant is an appropriate unit. While Respond-
ent does have facilities throughout the United Sates, no evi-
dence was presented of centralized supervision labor relations
and interchange between facilities that might make such a unit
inappropriate as in P.S. Elliott.
Furthermore, Lilledahl’s statements, as I have found, went
beyond merely stating that it was nonunion but included addi-
tional coercive statements of threats of futility. Commercial
Erectors, supra, 342 NLRB at 942 (it does not work with un-
ions, it does not deal with unions).
Accordingly, based on the foregoing analysis and precedent,
I conclude that Respondent’s comments by Lilledahl on No-
vember 8 were coercive and violative of Section 8(a)(1) of the
Act. Kessel Food, supra; Smoke House, supra; Williams Enter-
prises, supra; Commercial Erectors, supra; Galloway School
Lines, supra; Ryder Truck, supra, Eldorado, supra; Advanced
Stretchforming, supra; Bay Area Mack, supra.
B. The Conduct of Francisco Teran
I have found above that during the first week of January of
2012, Respondent’s employees, Rosario and Cruz, were walk-
ing towards the entrance to the Hartford Courant facility when
they were approached by Gabriel, who identified himself as a
union representative. Gabriel talked to the employees about the
Union, gave them union cards to sign and they took them. Ro-
sario observed that Teran was watching the employees through
the Courant’s glass doors as they were talking to Gabriel.
When Cruz and Rosario entered the building, Teran ap-
proached them and said that they could not talk to “him” (refer-
ring to Gabriel) because he was from the Union. Teran told the
employees that he knew Gabriel and knew that Gabriel was
from the Union, Teran added that if the employees continue to
talk to the union representative, they would get fired. Addition-
ally, Teran informed Cruz and Rosario that the crew that used
to work there had the Union and that is why they weren’t work-
ing at the Hartford Courant.
General Counsel contends, and I agree, that Teran’s state-
ment to employees that they would be fired if they continued to
talk to the Union is a classic and blatant unlawful threat to dis-
charge employees. C.P. Associates, 336 NLRB 167, 172
(2001); Swardson Painting Co., 340 NLRB 179, 185 (2003);
Omsco Inc., 273 NLRB 872 fn. 2 (1984).
I also conclude that Teran’s informing the employees that the
former workers at the Hartford Courant (i.e., the Capitol Clean-
ing employees) were not working at the facility because they
had been represented by the Union was similarly violative of
Section 8(a)(1) of the Act. T.C. Broome Construction Co., 347
NLRB 656, 665 (2006) (informing employees that employer
had laid off another employee because that employee was try-
ing to organize for the union, unlawful threat to discharge em-
ployees because of their union activity).
The complaint alleges, and the General Counsel contends,
that Teran created the impression of surveillance that its em-
ployees’ union activities were under surveillance by Teran’s
comments and conduct. Stevens Creek Chrysler Jeep Dodge,
357 NLRB 633, 638 (2011), affirming previous decision issued
by two-member Board, 353 NLRB 1294 (2009) (asking em-
ployees during a shop meeting who paid for pizza at the previ-
ously held union meeting).
I do not agree. Here, Teran observed Cruz and Rosario talk-
PRESSROOM CLEANERS 669
ing to the union representative and obtaining union cards, look-
ing through the glass of the facility. The employees, here, were
conducting their activities openly at or near company premises.
In such circumstances, open observation of such activities by
an employer is not unlawful. Roadway Package System Inc.,
302 NLRB 961 (1991).
General Counsel’s assertion that Teran’s comments that the
employees should not talk to the union representative constitut-
ed an unlawful giving the impression of surveillance of em-
ployees’ union activities is not correct. The Board’s test for
determining whether an employer has created an unlawful im-
pression of surveillance is whether “under all the relevant cir-
cumstances reasonable employees would assume from the
statement in question that their or other protected activities had
been placed under surveillance.” Stevens Creek Chrysler, supra,
353 NLRB at 1295, quoting Frontier Telephone of Rochester,
344 NLRB 1270, 1276 (2005).
Here, there is no basis to conclude that the employees would
assume that Teran’s statement that he knew that Gabriel was a
union representative was obtained through unlawful surveil-
lance. To the contrary, it is clear that the employees observed
that Teran was watching them conducting their union activities
openly in front of the facility and that Teran so informed the
employees not to talk to the union representative. There can be
no reasonable inference than Teran obtained information about
Gabriel’s identity through unlawful surveillance of employees’
union activities. Sunshine Piping, 350 NLRB 1186 (2007) (no
violative of creation of impression of surveillance by supervi-
sor’s comments, detailing knowledge of union’s success on
obtaining cards. Board reverses judge and notes that although
supervisors comment that 80 percent of employees signed cards
indicated awareness of union’s success, it was based on open
conducted card drive and “reasonably suggested that Respond-
ent had observed this open activity on its premises”); Michigan
Roads Maintenance Co., 344 NLRB 617 at fn. 4 (2005) (dis-
missing impression of surveillance allegation, where employ-
er’s statement revealed awareness of employee’s open union
activity on employer’s property).
Stevens Creek Chrysler, supra cited by General Counsel is
not to the contrary. There, the Board found that the statement
made by the supervisor, revealing knowledge about a union
meeting by asking who paid for the pizza created the impres-
sion of surveillance. Because it involved a union meeting away
from the premises and employees would reasonably assume
that the employer had obtained its information about the union
meeting by placing the employees’ union activities under sur-
veillance.
Here, as noted, and in contrast to Stevens Creek Chrysler,
supra and other cases, where such violations have been found,
the union activities, referred to by Teran, took place openly in
front of the facility.
Accordingly, I shall recommend dismissal of this complain
allegation.
On January 10, 2012, a larger group of employees, including
Castro, Cruz and Rosario were once again talking to Gabriel
about the Union, and he handed out union cards and union fly-
ers to the employees. As the employees were entering the build-
ing, Teran questioned them as why they were talking to the
man outside. Employees responded that the man was speaking
to them about the Union. Teran informed the employees that if
they keep talking to the Union that they would be fired, just like
the workers, who worked beforehand, were fired because of
that.
A few minutes later, Teran saw Rosario and Cruz in his of-
fice and asked them to tell him what the union representative
had given them. Rosario showed Teran the union card and un-
ion flyer that Gabriel had given him, and Teran asked if he
could keep it as “evidence.”
The above evidence demonstrates multiple 8(a)(1) violations
by Teran.
His questioning of the employees about why they were talk-
ing to the man outside constituted a coercive interrogation in
violation of Section 8(a)(1) of the Act, particularly, where, as
here, it is accompanied by an unlawful threat to discharge em-
ployees if they continued to talk to the union representative and
a statement that the prior employees at the site (i.e. the former
Capitol Cleaning employees) were terminated for union activi-
ties, which are both independently unlawful threats to discharge
employees.32 Swardson Painting, supra.
On February 9, Rosario complained to Teran about not re-
ceiving a raise and observed that by law he should be getting
paid $12 per hour. Teran responded by commenting that Ro-
sario must have been talking to the Union and that Respondent
could fire him for that. Teran’s threat to again fire employees
for talking to the Union is once more violative of Section
8(a)(1) of the Act. Swardson Painting, supra; C.P. Associates,
supra; Bestway Trucking Co., 310 NLRB 651, 671 (1993).
I so find.

C. The Refusal to Hire
It is clear that a new owner of a business or a successor con-
tractor, like Respondent, is not obligated to hire all or even any
of the employees employed by the predecessor contractor.
However, it may not refuse to hire the predecessor’s employees
because they were represented by a union or to avoid having to
recognize and/or bargain with the Union. NLRB v. Burns Secu-
rity Services, 406 U.S. 272 (1972); Howard Johnson’s v. De-
troit Local Joint Executive Board, 417 U.S. 249 (1974). Some
of the factors relied on by the Board in establishing such a vio-
lation include evidence of union animus; lack of a convincing
rationale for the refusal to hire the predecessor’s employees,
inconsistent hiring practices or overt acts or conduct evidencing
a discriminatory motive; and evidence supporting a reasonable
inference that the new owner or contractor conducted its staff-
ing in a manner precluding the predecessor’s employees from
being hired as a majority of the new owner’s overall work force
to avoid the Board’s successorship doctrine. Weco Cleaning
Specialists, 308 NLRB 310 (1992); U.S. Marine Corp., 293
32 The fact that former Capitol Cleaning employees were not dis-
charged but merely not hired by Respondent is of no consequence. The
statement equating the union membership or activities of the former
Capitol Cleaning employees with their failure to be employed by Re-
spondent is a clear threat to Respondent’s current employees that union
activities on their part could result in a similar loss of their employ-
ment.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 670
NLRB 669 (1989), citing Houston Distribution Service, 227
NLRB 960 (1977); Lemay Caring Centers, 80 NLRB 60
(1986), enfd. mem. 815 F.2d 71 (9th Cir. 1987).
In Planned Building Services, 347 NLRB 670 (2006), the
Board clarified the applicable framework for considering refus-
als to hire in successorship contexts, resolving the confusion
that had existed in analyzing such cases subsequent to FES, 331
NLRB 9 (2000). In FES, the Board changed the evidentiary
burden in refusal to hire cases and added requirements to the
Wright Line standard for proving discriminatory conduct.33
General Counsel, under FES, must prove that the employer was
hiring or had concrete plans to hire at the time of the unlawful
conduct and that the applicants had experience or training rele-
vant to the announced positions.
Subsequent to FES, some Board cases continued to apply a
Wright Line analysis to refusals to hire in successorship con-
texts34 without considering FES criteria, and in others the
Board referred to FES and stated that FES standards were met
without addressing whether an FES analysis should be applied
in a successorship context.35
The Board, therefore, in Planned Building Services, supra
clarified the confusion by concluding that the additional FES
requirements of proving that the applicants met the employer’s
qualifications for hire and the employer was hiring or had plans
to hire were not necessary to be proved in a successorship con-
text, essentially because these matters are essentially assumed
or not in dispute in such cases. Planned Building Services, su-
pra, 347 NLRB at 673.
There, the Board made clear that the appropriate analysis for
refusal to hire allegations arising in a successorship context
encompasses principals applying Wright Line and General
Counsel has the initial burden to prove that the employer failed
to hire employees of its predecessor and was motivated by anti-
union animus. Once the General Counsel has shown that the
employer failed to hire employees of its predecessor and was
motivated by antiunion animus, the burden then shifts to the
employer to prove that it would not have hired the predeces-
sor’s employees, even in the absence of its unlawful motive. In
establishing its Wright Line defense, the employer is free to
show, for example, that it did not hire particular employees
because they were not qualified for the available jobs and that it
would not have hired them for that reason, even in the absence
of the unlawful considerations. Similarly, the employer is free
to show that it had fewer unit jobs than there were unit employ-
ees of the predecessor. Id at 673–679.
In applying the Planned Building Services analysis, here, I
find that General Counsel has adduced strong and compelling
evidence that antiunion animus motivated Respondent’s deci-
sion not to hire the six discriminatees.
33 To establish a violation under Wright Line, 251 NLRB 1083
(1980), General Counsel must prove that an employer’s actions were
the result of its animus toward union or protected activity. Once the
General Counsel has met this burden, the Board will find a violation
unless the employer proves that it would have taken such action, even
in the absence of the protected activity.
34 Waterbury Hotel Mgmt. LLC, 333 NLRB 482 (2001); Jennifer
Matthew Nursing & Rehabilitation, 332 NLRB 300 (2000).
35 The Concrete Co., 336 NLRB 1311, 1311–1312 (2001).
Here, I have found that at the November 8 “interview” of the
discriminatee-applicants, Lilledahl informed those applicants
that Respondent was a nonunion company, does not work with
unions, does not deal with unions and does not want a union at
all. These comments, as I have detailed above, are coercive and
violative of 8(a)(1) of the Act. Indeed, as the Board had ob-
served on more than one occasion, such statements represent an
unlawful message to employees that it would not permit them
to be represented by a union and constitutes a “facially unlaw-
ful condition of employment.” Advanced Stretchforming, supra,
323 NLRB at 530 (statement by general manager at interview
that they will be a nonunion facility); W&M Properties of Con-
necticut, 348 NLRB 162, 163 (2006) (informing employees that
if they accept a job it would be nonunion, thereby, conditions
their employment on refraining from union activities, thereby,
violating 8(a)(1) of the Act); The Concrete Co., 336 NLRB
1311 (2001) (informing employees of its predecessors, “there’s
no union, the union’s gone”).
Such comments by the hiring officials of the employers have
been found to be highly indicative of discriminatory motivation
and often sufficient without more to establish that antiunion
animus motivated the refusal to hire. W&M Properties, supra;
Concrete Co., supra. See also Mammoth Coal Co., 354 NLRB
687, 689 fn. 13, 704 (2009) (statements made at job interview
that company was going to be a nonunion mine held to be evi-
dence of antiunion animus); Galloway School Lines, supra, 321
NLRB at 1424 (statements by employer official that it was not
and would never be union provides strong evidence of union
animus); Williams Enterprises, supra, 301 NLRB at 167–168,
178 (statement that employer “did not intend to operate the
Richmond plant as a nonunion plant”).
The evidence of antiunion motivation, here, does not end
with Respondent’s pronouncements that it would operate union
free. Mammoth Coal, supra, 354 NLRB at 704. I have found
above that Francisco Teran, who was part of Respondent’s
workforce as an employee, but who was promoted to site su-
pervisor in January of 2012 to replace its initial supervisor, who
opted to return to Nebraska shortly after Respondent began
operations at the facility, violated the Act by making several
coercive statements to Respondent’s employees. Thus, once
Respondent began operations, cleaning the offices at the Hart-
ford Courant facility, the Union began a campaign to attempt to
organize its newly hire employees. The campaign consisted of a
union representative (Gabriel) speaking to employees outside
the premises prior to their entering the facility, discussing the
Union with them and handing out union cards and union flyers.
Teran observed conduct through the glass window of the facili-
ty. On several occasions during January of 2012, Teran con-
fronted employees as they were entering the premises after
these employees were observed by Teran speaking to the union
official, interrogated them about their conversations with the
Union, threatened them with discharge if they continued to talk
to the union representative, and most significantly, informed
them that the prior employees working at the Courant had not
been hired because of their union support.
These 8(a)(1) violations that I have found, as described
above, represent extremely substantial evidence of antiunion
animus in Respondent’s decision not to hire the discriminatees.

PRESSROOM CLEANERS 671
TCB Systems Inc., 355 NLRB 883, 884–885 (2010) (statement
made by supervisor of successor, who had been employed by
employer when hiring decisions were made, that these employ-
ees, who were not working for employer because of their strong
support for the union, and the employee to whom statement was
made was lucky to have been hired because the employer knew
that he too was involved with the union, “provide ample evi-
dence” of employer’s animus).
I recognize, as did the Board in TCB Systems, that Teran was
not involved in Respondent’s hiring decisions and, in fact, was
not even employed by Respondent when it made its decision
not to hire the six discriminatees. Nonetheless, as the Board
observed in TCB Systems, Teran’s statements provide an expla-
nation for those hiring decisions, and it is reasonable to infer
that Teran, as a supervisor, did know why the decisions were
made, even if he did not make them. There is nothing in these
comments by Teran to suggest that they were statements of
personal opinion and nothing in the record supports the infer-
ence that Teran was fabricating. I note further in this connec-
tion that Teran was promoted to supervisor when Respondent’s
initial supervisor went to Nebraska shortly after Respondent
started operations at the facility on December 12, 2011. Thus, it
is likely, and I so find, that Teran’s comments to the employees
were based on statements made to him by either the Lilledahls
or by his predecessor as an on-site supervisor. In such circum-
stances, I conclude that Teran’s remarks (which also included
independent threats to discharge employees if they continued to
talk to the Union) to be substantial evidence of unlawful moti-
vation by Respondent. TCB Systems, supra; Grand Canyon
Mining Co., 318 NLRB 748, 748 fn. 2 (1995), enfd. 116 F.3d
1039 (4th Cir. 1997) (relying in part on supervisor’s edifice
post-layoff statement that a particular employee had been laid
off because of his union activity).
Furthermore, Respondent’s own witness, Steve Lilledahl,
conceded that normally when Respondent starts up a new job at
a facility that it hires the existing workforce. Indeed, even Sier-
ra McSharry conceded that it would have been easier if Re-
spondent had hired the former Capitol Cleaning workers. Yet,
Respondent failed to hire any of the experienced crew at the
facility36 and hired a crew of new employees “off the street”
without any experience at the facility and some without any
experience in the industry. This departure from Respondent’s
prior practices is another indication of discriminatory motiva-
tion. Planned Building Services, supra, 347 NLRB at 708 (hir-
ing practice contrary to prior practice of offering jobs to in-
cumbent employees as long as owners were satisfied with the
prior performance of the workers); MSK Cargo/King Express,
348 NLRB 1096, 1102 (2006) (in previous transitions from
contractor to contractor, employer hired complement of exist-
ing employees); Waterbury Hotel Management LLC, 333
NLRB 482, 550 (2001) (deviation from employer’ normal prac-
tice of interviewing and hiring existing workforce, where there
is an existing workforce).
I conclude, therefore, that based on the above, that General
Counsel had adduced compelling evidence that Respondent’s
36 These employees had from 5–15 years of experience working at
the location.
decision not to hire the six discriminatees was motivated by
antiunion animus. The burden then shifts to Respondent to
establish by a preponderance of the evidence that it would have
taken the same action, absent their union activities and support.
I conclude that Respondent has fallen far short of meeting its
burden in that regard, in fact, in my view, as Respondent’s
purported defenses are pretextual and only reinforce General
Counsel’s strong prima facie showing.
The reasons given by Respondent’s witnesses, Gulotta,
Lilledahl, and McSharry, for Respondent’s decision not to hire
the six discriminatees were internally inconsistent with their
own testimony on direct and on cross-examination, inconsistent
between and among Respondent’s witnesses, particularly
Gulotta versus the Lilledahls, and most importantly, with the
position paper submitted by Respondent’s counsel to the Re-
gion.
Thus, the evidence discloses that Respondent received job
applications from the Union on behalf of the discriminatees in
September of 2011, even before Respondent was notified that it
had been successful in its bid for the job. Respondent ignored
the request from the Union to hire these employees or even to
contact them for interviews, even after it had been notified that
it had won the bid, until November 8, 2011.
Yet, it did not hire any of them on that day or thereafter and
subsequently hired a crew of 8 employees, none of whom had
worked at the facility and some of whom had no experience in
the industry.
Immediately after this November 8 meeting, Lilledahl in-
formed Gulotta that Respondent was not successful in hiring
any Capitol Cleaning employees and that he (Lilledahl) was
disappointed that the employees did not accept Respondent’s
offer.
Gulotta’s testimony, in that regard, is totally at odds with
that of Lilledahl and McSharry, who insisted that no offer of a
job was made to the employees at the meeting but that they
were merely informed of Respondent’s proposed wages of $9
an hour with no benefits and that the employees were told to
get back to Respondent as soon as possible to notify it if they
were interested in employment under those conditions.
Lilledahl further conceded in his direct testimony that Re-
spondent was ready to hire the six discriminatees if they were
willing to work for these wages and no benefits, consistent with
its normal prior practice of hiring incumbent employees when it
takes over a contract. Lilledahl testified further that from the
events of the meeting, such as the “body language” of the em-
ployees and their comments about Respondent,37 it was his
impression that these employees did not want to work for Re-
spondent.
Lilledahl also conceded that Respondent became aware with-
in a week after the November 8 meeting that his impression
was not correct and that all six of the employees had notified
Respondent that they were willing to work for Respondent at its
proposed wage with no benefits.
Lilledahl could not provide any convincing rationale for Re-
spondent’s decision not to acknowledge the employees’ ac-
37 “We must not be much of a company if that’s all we can afford to
pay.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 672
ceptance of its offer and hire an admittedly experienced crew.
He was vague and uncertain about why that decision was made,
essentially testifying that McSharry was primarily responsible
for the decision. Finally, after some prompting from his coun-
sel, he testified that Respondent decided to continue the inter-
viewing process “to see what we had and then would make the
decision.”
Lilledahl further testified that, at some point in December, he
and McSharry returned to the facility and “shadowed the em-
ployees” for 2 to 3 days and concluded that the Capitol Clean-
ing employees were “slow” and that they did not believe that
these employees would be able to do the job quickly enough.
This later assertion was consistent with McSharry’s ultimate
testimony but not with her initial testimony on direct examina-
tion.
McSharry testified, in that regard, that at the November 8
meeting the employees reacted negatively towards Respondent
and that she “was uncertain whether any of the employees were
interested in working for Respondent.”
After conceding that shortly after the meeting, Respondent
was notified that all six discriminatees were interested in work-
ing for them at $9 per hour with no benefits, she was asked by
Respondent’s counsel why Respondent did not hire the em-
ployees at that time. She replied that “there were some issues as
far as the flexibility that they would have as employees for us,”
and they were extremely disgruntled, and Respondent did not
have confidence in employing such employees.
Significantly, McSharry said nothing about any “shadowing”
of employees at that time, although Gulotta had testified that he
believed that the “shadowing” had commenced on November 8,
immediately after the interviews.
Thus, based on McSharry’s testimony, within a week after
November 8, Respondent was aware that an experienced crew
of six employees willing to work for it at substantially reduced
wages and no benefits, and yet it still did not hire any of them
at that time.
Her reasons for not doing so at that time make little sense
and are not consistent with the testimony of either Gulotta or
Lilledahl, i.e. that employees did not demonstrate flexibility
and they were disgruntled. I note in this connection that
Lilledahl admitted in his testimony that had the employees
accepted Respondent’s “offer” at the November 8 meeting,
Respondent would have hired them (disgruntled or not).
Ultimately, both McSharry and Lilledahl and, in fact, Re-
spondent’s brief fell back on the alleged “shadowing” as the
sole reason for Respondent’s decision not to hire any of the
discriminatees.
Significantly, in this regard, McSharry abandoned her testi-
mony on direct examination that Respondent did not hire the
employees in part because of their lack of flexibility or their
potential for being “disgruntled” employees and testified that
the shadowing was the only reason for the decision.38
Notably, this decision (not to hire the discriminatees) by Re-
spondent was made at a time in early December, when it was
38 Indeed, McSharry volunteered that Respondent never asked the
discriminatees in the interviews any questions about their flexibility or
willingness to work part-time hours.
engaging in a frenzied hiring effort to recruit, screen and train a
new workforce in order to meet the pressure imposed by Gulot-
ta to be the first Tribune contractor to be up and running and to
meet its proposed start date of December 12. See New Concept
Solutions, 349 NLRB 1136, 1154 (2007). Indeed, it seems ob-
vious that Respondent’s decision to “ignore the obvious
choice” of hiring an experienced and available workforce sup-
ports a reasonable inference that its decision was motivated by
animus towards the Union. Id at 1154.
The “shadowing” defense advanced by Respondent as the
sole reason for its decision not to hire the Capitol Cleaning
employees is undermined by several factors. Initially, I note the
lack of specificity or details with respect to the testimony of
McSharry and Lilledahl that the employees were “slow.” Nei-
ther of Respondent’s witnesses presented any specific testimo-
ny as to what they observed about the employees’ performance
that lead them to conclude that they were working too “slow” to
be able to perform the work required by Respondent during the
times that they would be employed. Such vague and conclu-
sionary testimony is hardly sufficient to meet Respondent’s
burden of proof. Moreover, if it was so important for Respond-
ent to determine how “slow” the workers were performing their
jobs, why did they not “shadow” them immediately after the
interviews to give them sufficient time to assess their perfor-
mance rather them wait until a few days before it made its deci-
sion in mid-December to allegedly “shadow” them? Respond-
ent provided no explanation for its failure to do so.
Further, Respondent’s witnesses’ testimony concerning the
purpose of “shadowing” and its extent is undermined by Gulot-
ta’s testimony as well as by documentary evidence of emails
between Gulotta and Respondent. Thus, Gulotta testified that
the purpose of “shadowing” is generally to permit the new con-
tractor to see how the prior contractor operated, where various
items are stored and other matters. This description of shadow-
ing’s purpose was, in fact, conceded by Respondent’s own
witnesses. Thus, I find that shadowing is not done for the pur-
pose of making decisions or to evaluate the performance of the
prior contractor’s employees but to simply see how they con-
ducted its operation.
The emails between Respondent and Gulotta serve to con-
firm this fact as well as contradicting McSharry’s testimony as
to the frequency and timing of the “shadowing.” Thus, on Fri-
day afternoon on December 9, 2011, McSharry emailed Gulot-
ta, giving him an update on Respondent’s progress. She in-
formed him that as of that time Respondent had a crew of six39
and that it was conducting more interviews on Saturday to fill
additional positions. She added that “we shadowed Capitol
Cleaning last night and will do the same Saturday and Sunday
night (full crew).” Further, on Saturday evening, December 10,
McSharry emailed Gulotta once more to announce that Re-
spondent was fully staffed with a crew of 8, plus Joe (the su-
pervisor). She added that the “evening crew is here shadowing
the staff and going through the motions.”
It is obvious from these emails that the purpose of the shad-
owing was not to assess performance of Capitol Cleaning
39 According to McSharry, this number referred to five employees,
plus the site supervisor, whom it had hired.

PRESSROOM CLEANERS 673
workers to determine whether or not to hire them but to observe
their work to see how they operate to enable the employees
hired by Respondent to do their work. It is clear that the shad-
owing was conducted principally after the decision was made
by Respondent not to hire the former Capitol Cleaning workers.
Thus, McSharry and Lilledahl’s testimony that Respondent
conducted shadowing for two or three days is undermined and
contradicted by its emails and McSharry’s own admission that
she did not arrive at the facility until Thursday, December 8,
and the email dated December 9 states that Respondent shad-
owed Capitol Cleaning last night (meaning December 8).
Therefore, Respondent “shadowed” the employees for only one
night, not two or three as Respondent’s witnesses assert, before
it made its decision not to hire the former Capitol Cleaning
workers on Thursday evening, December 8, according to
McSharry’s testimony.
Additionally, Lilledahl furnished no testimony as to which
employees he “shadowed,” and McSharry testified that she
shadowed five of the six discriminatees, admitting that she did
not shadow Korzeniecki and presented no evidence that either
Lilledahl or Pena shadowed Korzeniecki or reported to her
otherwise on his performance. Pena did not testify. Thus, Re-
spondent presented no evidence at all that it ever shadowed or
observed Korzeniecki, so it, therefore, could not have consid-
ered him to be “slow” or otherwise incapable of performing the
work required by Respondent.
Also, McSharry insisted that she shadowed all five employ-
ees (excluding Korzeniecki), which included Lubowicka. How-
ever, Lubowicka testified credibly without contraction that she
was in Poland in December of 2012 when McSharry insisted
that she “shadowed” her and that “she (Lubowicka) did not
return to the United States until December 18, 6 days after Re-
spondent started its operations with new employees. Accord-
ingly, this finding brings the number of employees that Re-
spondent could not have, and did not, shadow to two and fur-
ther undermines the validity of Respondent’s defense that its
decision not to hire the discriminatees was based on the “shad-
owing.”
Finally, and perhaps most importantly, Respondent’s attor-
ney submitted a position paper to the Region during the inves-
tigation, in which it detailed its reasons for not hiring the for-
mer Capitol Cleaning employees. This document provided
several reasons for its decision. They included that the employ-
ees were rude and upset at the meeting, they were disgusted
with the offer of $9 per hour and Respondent did not believe
that they would be interested in working for Respondent and
would not comprise a happy crew. It also stated that it was
critical that there be enthusiasm and flexibility for those in the
group and these employees displayed a disgruntled attitude
towards the Respondent.
The paper then goes on to admit that after the meeting Re-
spondent was notified that the employees were willing to work
for $9 per hour but stated that by that time Respondent had run
its first advertisement and had received communications from a
number of applicants, who had expressed to Respondent “flexi-
bility and enthusiasm to work at this job,” which “were key
components of these discussions with potential candidates.”
The paper further explained that it eventually hired a staff of
only three full-time and the rest part-time employees. Finally, it
stated that Respondent filled its positions during interviews
between December 8 and December 11 and hired its staff. It
specially detailed the reasons why this staff was chosen. They
included that these individuals hired “had a willingness to be
flexible with the demands” that Respondent places on employ-
ees and all exhibited an eagerness to work at $9 per hour. The
paper added that the former “Capitol Cleaning employees were
considered to the very end.” However, Respondent stated that
the other candidates were a better fit and the Capitol Cleaning
employees were not happy with the compensation. It added that
Respondent was concerned that these individuals would not be
willing to work a part-time position for any length of time as
they had previously worked full time at Capitol Cleaning.
It is striking that among the myriad of reasons stated in the
position paper, as detailed above, for its decision not to hire the
Capitol Cleaning crew and instead hire employees off the
street, there is not one word about any “shadowing” of the for-
mer workers or any observations or indeed any criticism of
their work performance as a reason for Respondent’s decision.
Planned Building Services, supra, 347 NLRB at 714. Such
omissions I find to be particularly significant and highly dam-
aging to Respondent’s attempt to meet its burden of proof. Po-
sition papers submitted by attorneys for Respondent are admis-
sible as admissions and have frequently been considered signif-
icant, where, as here, it contradicts record testimony of Re-
spondent’s witnesses as to the reasons for the action taken by it.
Planned Building Service, supra; Black Entertainment Televi-
sion, 324 NLRB 1161 (1997); Steve Aloi Ford, 179 NLRB 229
fn. 3, 230 (1969).
The above evidence demonstrates that Respondent had ad-
vanced shifting reasons for its decision not to hire the incum-
bent employees, which substantially detracts from the validity
of its defense and demonstrates the pretextual nature of its ex-
planation for its actions. Planned Building Service, supra;
Douglas Foods, 330 NLRB 821 (2000).
Where, as here, an employer has vacillated in offering a con-
sistent explanation for its actions, an inference is warranted that
the real reason for its actions is not among those asserted.
Planned Building Services, supra; Black Entertainment Televi-
sion, supra; Sound One Corp., 317 NLRB 854, 858 (1995).
I find such an inference is clearly warranted here and con-
clude that the real reason for Respondent’s conduct in not hir-
ing the experienced incumbent employees was because of their
union membership and support and Respondent’s desire to
avoid union representation amongst its workforce.
Accordingly, I find, as explained above, that Respondent had
fallen well short of meeting its burden of establishing that it
would not have hired the discriminatees, absent their union
membership and support, and it has, thereby, violated Section
8(a)(1) and (3) of the Act.
D. The Refusal to Recognize and Bargain with the Union
The complaint alleges that Respondent would be the legal
successor to Capitol Cleaning operation but for the unlawful
refusal to hire the Capitol Cleaning unit employees. Respondent
does not deny that it refused to recognize and bargain with the
Union but argues that no obligation existed because it is not the
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 674
legal successor to Capitol Cleaning’s operations at the Hartford
Courant facility at 285 Broad Street.
The threshold test for determining successorship is: (1)
whether the new employer conducts essentially the same busi-
ness as the predecessor employer and (2) whether a majority of
the new employer’s work force in an appropriate unit are for-
mer employees of the predecessor employer. Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27 (1987); NLRB v. Burns Security
Services, 406 U.S. 272 (1972); Mammoth Coal, supra, 354
NLRB at 726.
The appropriate analysis for assessing whether the new em-
ployer conducts essentially the same business as the predeces-
sor employer is whether the similarities between the two opera-
tions manifest a substantial continuity between the enterprises.
Hydrolines Inc., 305 NLRB 416, 421 (1991), citing Fall River
Dyeing, supra, 482 U.S. at 41–43 and Burns Security Services,
supra, 406 U.S. 280, fn. 4.
The factors enumerated in Fall River Dyeing for determining
these issues are whether the business is essentially the same,
whether the employees of the new company are doing the same
jobs under the same supervisors and whether the new entity has
the same production process, produces the same products and
has the same body of customers. Id at 430.
These factors are assessed primarily from the perspective of
the employees, that is whether those employees, who have been
retained (or, as here, should have been retained) will view their
job situation was essentially unaltered. Hydrolines, supra.
Based on these factors, I find it clear that Respondent en-
gaged in essentially the same business as Capitol Cleaning
(cleaning the offices at the Hartford Courant) and the employ-
ees were performing the same jobs and performing the same
functions as the Capitol Cleaning employees (dusting, sweep-
ing, mopping, vacuuming, and taking out trash).
In this regard, Respondent argues it cannot be considered a
successor because it was a “different business model” than that
of Capitol Cleaning. It asserts that Respondent uses primarily
part-time employees while Capitol Cleaning utilized only full-
time employees40 and that, therefore, its employees were ex-
pected to perform more duties within a shorter timeframe as
compared to Capitol Cleaning’s workforce. Further, Respond-
ent notes that it uses more automated machinery than Capitol
Cleaning in its cleaning functions and has different work
schedules than Capitol Cleaning employees had when they
performed the work.
None of these factors, singularly or collectively, come close
to overcoming the conclusion, which I make, that Respondent
was essentially conducting the same business as Capitol Clean-
ing and that there was a substantial continuity between the en-
terprises. Mammoth Coal, supra, 354 NLRB at 727; Planned
Building Services, supra, 347 NLRB at 674, fn. 1; Van Lear
Equipment Inc., 336 NLRB 1059, 1063–1064 (2001); Hydro-
lines, supra, 305 NLRB 422–423; Commercial Forgings, 315
NLRB 162, 165 (1994).
40 The record reveals that Respondent’s initial staff consistent of
eight employees, three full time and five part time. Capitol Cleaning, on
the other hand, employed eight employees full time to perform the
work required.
The Third Circuit opinion in Systems Management Inc. v.
NLRB, 901 F.2d 297 (3rd Cir. 1990), enf. in pert. part. 292
NLRB 1075 (1989), where it rejected an employer’s contention
that its change from full-time to part-time employees, resulted
in a change in the nature of its operations, sufficient to find that
it is not a successor is extremely persuasive on this issue, par-
ticularly since it involves the same type of industry (janitorial
contractor at a building).
The Court held:

In particular, the seven factors which we have identi-
fied reveal that Systems must be held to have engaged in
the same operation as had Pritchard. The record discloses
that, although Systems employed part-time, rather than the
full-time workers employed by Pritchard, Systems re-
mained committed to the same type and nature of business
as Pritchard operated and has merely substituted its part-
time workers and management for Pritchard’s full-time
workers and management. Systems does not allege that a
new technique was used or a new practice was employed
or that a different product was manufactured or service of-
fered.10

Systems’ defense is that the nature of the work force
employed is sufficiently different from that employed by
Pritchard that it should not be deemed a successor em-
ployer. Systems maintains that since it hires only part-time
employees and only employees who seek no career in the
janitorial business, Systems cannot be deemed a “succes-
sor employer” because the difference between part-time
and full-time employees constitutes a substantial differ-
ence in the enterprise. We find this argument to be merit-
less.

Systems may not avoid its obligation under the Act to
negotiate with a properly recognized union by merely
changing the hours of work by its employees while still
maintaining the same nature and type of services previous-
ly provided by Pritchard. To allow a “successor employer”
to escape its duty to bargain notwithstanding the continua-
tion of the identical business—in our case, using the same
technique and supplies, servicing the same customers and
supplying the same product, and indeed doing so in the
same buildings—would eviscerate the doctrine of “succes-
sor employer.”

Systems fundamentally misunderstands the nature of
being a “successor employer.” In order to prevent the la-
bel, and consequent obligations of, “successor employer”
from attaching, a fundamental change in the nature of the
business enterprise must occur. It must be more than a
mere restructuring of the hours11 or conditions of em-
ployment.12

The First Circuit stated this principle aptly in NLRB v.
Band-Age, Inc., 534 F.2d 1, 3 (1st Cir. 1976) when it held:

The central question in a successorship case is whether there
has been “a change of ownership not affecting the essential
nature of the enterprise,” if no essential change is found “the
successor employer must recognize the incumbent union and

PRESSROOM CLEANERS 675
deal with it as the bargaining representative.” In deciding this
issue the Board must examine the “totality of the circum-
stances,”

(Emphasis added) (citations omitted).

The indicia which we have recognized to conclude that
Systems continued the existence of the Pritchard enter-
prise, and that the difference in scheduling employees on a
part-time, rather than a full-time basis, did not convert a
“continued enterprise” into a new or a different one be-
cause the nature of the employment remained substantially
and essentially the same as the business Pritchard had
conducted. Moreover, if we were to hold that a mere re-
duction in working hours would negate the obligations of a
“successor employer” we would encourage the intentional
manipulation of a work force so as to eliminate the “suc-
cessor employer’s” obligation to negotiate.
Therefore, applying the seven factor analysis to the in-
stant record leads to conclude that both of the criteria lead-
ing to successorship have been satisfied, and that accord-
ingly, Systems must be deemed a successor to Pritchard.
As such, Systems became liable under the Act for its dis-
criminatory conduct.
10 Only one of the indicia was not found in that Sys-
tems employed different supervisors than those employed
by Pritchard. The second indicia, “whether the new em-
ployer uses the same plant or equipment,” is inapplicable
in the janitorial and maintenance business as no goods are
manufactured. To the extent relevant, Systems cleaned and
maintained the same buildings as Pritchard.
11 This is particularly so in a case like this one where
Systems, in violation of the Act, did not extend offers to
the Local 29 workers.
12 Systems’ purported change in the continuity of its
cleaning and maintenance enterprise can be readily distin-
guished from the interrupted enterprise described in the
Seventh Circuit case of In Re Chicago, Milwaukee, St.
Paul & Pacific Railroad, 658 F.2d 1149 (7th Cir. 1981).
That court declined to impose successor employer status
on a railroad which had entered bankruptcy and ceased
operations for a number of years. Upon revival, the Sev-
enth Circuit ruled that there was no continuity of business
since the business had ceased operating for a number of
years.
Id at 304–305.

See also Mammoth Coal, supra, 347 NLRB at 727 (changes
in machinery used and use of fewer employees, insufficient to
establish change in business operations); Tree-Free Fiber, 328
NLRB 389, 390 (1999) (successorship found when new em-
ployer continued with workforce of only 50 workers as com-
pared to pre-purchase complement of 500 workers); Commer-
cial Forgings, 315 NLRB 162, 165 (1994), enf. 77 F.3d 482
(6th Cir. 1996) (successorship established where changes elim-
inated most of predecessor’s nonunit jobs, but jobs of unit em-
ployees not altered); Planned Building Services, supra, 347
NLRB at 674 fn. 17 (successor bargaining obligation where
new employer planned to employ a smaller workforce consist-
ing solely of predecessor’s employees); Capital Steel & Iron,
supra, 299 NLRB at 485–489 (changes in job classifications,
reduction in size of workforce, insufficient to establish change
in nature of operation, even where there was an 8-month hiatus
between shutdown of predecessor and commencement of suc-
cessor’s operation).
I, therefore, conclude that Respondent conducted essentially
the same business as Capitol Cleaning at the Hartford Courant
facility.
Another requirement for the establishment of a successor re-
lationship is that the unit sought to be an appropriate unit for
collective bargaining. In that connection, the evidence discloses
that historically Capitol Cleaning employees, who cleaned the
offices at the Hartford Courant facility, have been represented
by the Union. When Respondent assumed control of this opera-
tion, it continued to use employees to perform the same unit
work. In such circumstances, the Board has consistently held
that a long-established bargaining relationship will not be dis-
turbed, where they are not repugnant to the Act. Mammoth
Coal, supra at 728; Ready Mix USA Inc., 340 NLRB 946
(2003). The Board places a heavy evidentiary burden on a party
attempting to show that historical units are no longer appropri-
ate. Mammoth Coal, supra; Mayfield Holiday Inn, 335 NLRB
38, 39 (2001) (historical unit consisted of housekeeping em-
ployees at two hotels; each hotel was sold to separate new own-
ers; separate unit of housekeeping employees at each hotel
found to be historically appropriate units of housekeeping em-
ployees, both new employers found to be successors and or-
dered to bargain with the union). See also Planned Building
Services, supra at 717–718 (single location for each building,
where employees performed unit work, found to be appropriate
units).
Respondent has adduced no evidence nor has it made any ar-
guments or contentions that the historically recognized unit is
repugnant to the Act or that it is no longer appropriate. I, there-
fore, find based on the above precedent and analysis that such a
unit, consisting of building service employees, who clean and
maintain the offices at the Hartford Courant facility at 285
Broad Street in Hartford, Connecticut, is an appropriate unit.
With respect to the second prong of the successorship test, as
described above, where, as here, the employer has unlawfully
refused to hire its predecessor’s employees, the Board infers
that these employees would have been retained, absent the dis-
crimination against them. Mammoth Coal, supra at 728;
Planned Building Services, supra at 674; New Concept Solu-
tions, supra, 349 NLRB at 1157.
Here, I have found that Respondent discriminatorily refused
to hire six employees formerly employed by Capitol Cleaning
and that it staffed its operations with eight employees when it
commenced operation at the facility on December 12. This
represents a majority of Respondent’s workforce, and it is pre-
sumed that these employees continued to support the Union and
would have continued to work for Respondent but for the dis-
crimination. Thus, the second prong for successorship has been
met, and Respondent is the legal successor to Capitol Clean-
ing’s operation at the facility. Mammoth Coal, supra at 729;
Planned Building Services, supra at 674; New Concept Solu-
tions, supra, 349 NLRB at 1157; Love’s Barbeque Restaurant,
245 NLRB 78, 82 (1979), enfd. in relevant part sub nom. Kall-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 676
man v. NLRB, 640 F.2d 1094 (9th Cir. 1981).
Respondent also argues that it cannot be found to be a suc-
cessor to Capitol Cleaning since the Union never made a de-
mand upon Respondent for recognition or bargaining on behalf
of the employees. Prime Service v. NLRB, 266 F.3d 1233 (DC
Cir. 2001); Williams Enterprises v. NLRB, 956 F.2d 1226, 1233
(DC Cir. 1992).
I do not agree. It is well settled that no bargaining demand
was necessary, here, because Respondent’s unlawful refusal to
hire the predecessor’s employees rendered any request for bar-
gaining futile. Mammoth Coal, supra at 729; Planned Building
Services, supra at 718; Smith & Johnson Construction Co., 324
NLRB 970 (1997); Triple A Services, 321 NLRB 873, 877 fn. 7
(1996).
Based upon the foregoing analysis and precedent, I conclude
that Respondent has violated Sections 8(a)(1) and (5) of the Act
by refusing to recognize and bargain with the Union.
E. The Unilateral Changes
Although under Burns, supra, a successor employer is gener-
ally free to set initial terms of employment without bargaining
with the union, here, Respondent has forfeited that right for two
reasons. First, Respondent had discriminatorily refused to hire
the predecessor’s employees. In such circumstances, Respond-
ent loses the right to unilaterally set initial terms and conditions
of employment, it must first bargain with the Union. Planned
Building Services, supra at 674; Mammoth Coal, supra at 729;
Capitol Cleaning Contractors Inc. v. NLRB, 147 F.3d 999,
1008 (DC Cir. 1998); Love’s Barbeque, supra, 245 NLRB at
82. Secondly, Respondent, by informing applicants for em-
ployment that it intends to operate nonunion at the facility, also
forfeits the right to unilaterally set initial terms and conditions
of employment, even if it had hired all of the former Capitol
Cleaning employees. Mammoth Coal, supra at 729; Stretch-
forming, supra, 323 NLRB at 530; Smoke House Restaurant,
347 NLRB 192, 204–205 (2006); Concrete Co., supra, 336
NLRB at 1311. Accordingly, Respondent was required to fol-
low the terms and conditions of employment established by
Capitol Cleaning’s contract with the Union, pending bargaining
with the Union. Mammoth Coal, supra; Smoke House, supra.
I find, therefore, that Respondent has further violated Section
8(a)(1) and (5) of the Act since December 12, 2011, by unilat-
erally imposing new terms and conditions of employment for
its unit employees.
CONCLUSIONS OF LAW
1. Respondent, Pressroom Cleaners, is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, Service Employees International Union, Local
32BJ, is a labor organization within the meaning of Section
2(5) of the Act.
3. The Union has been and is the exclusive collective-
bargaining representative for Respondent’s employees in the
following appropriate unit:

All building service employees employed by Respondent to
clean the offices at 285 Broad Street, Hartford, Connecticut,
excluding employees, who clean and maintain the pressroom
at that location, guards and supervisors as defined in the Act.

4. Respondent has violated Section 8(a)(1) of the Act by in-
forming employees that it intends to operate its business as a
nonunion entity and/or that it is a nonunion business, threaten-
ing its employees with discharge because of their support for or
activities on behalf of the Union and by coercively interrogat-
ing its employees concerning their activities on behalf of and
support for the Union.
5. Respondent has violated Section 8(a)(1) and (3) of the Act
by refusing to hire six former employees of Capitol Cleaning
for positions in the above bargaining unit.41
6. Respondent has violated Section 8(a)(1) and (5) of the Act
since December 12, 2011, by refusing to recognize and bargain
with the Union and by unilaterally changing the terms and con-
ditions of employment of its employees in the unit without
prior notification and bargaining with the Union.
7. The aforesaid unfair labor practices affect commerce with-
in the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent had engaged in certain un-
fair labor practices, I shall recommend that it cease and desist
and take certain affirmative action designed to effectuate the
policies of the Act. Specifically, having found that Respondent
unlawfully refused to hire the individuals named above, I shall
recommend the Respondent to offer to these employees posi-
tions for which they would have been hired, absent the Re-
spondent’s unlawful discrimination, or, if those positions no
longer exist, to substantially equivalent positions without prej-
udice to their seniority and other rights and privileges enjoyed,
discharging if necessary any employees hired in their place.
The employees listed above shall be made whole for any loss of
earnings they may have suffered due to the discrimination prac-
ticed against them. Backpay shall be computed in accordance
with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
at the rate prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010). The Re-
spondent shall also be required to expunge from its files any
reference to the unlawful refusal to hire and to notify the dis-
criminatees in writing that this has been done.
Respondent shall file a report with the Social Security Ad-
ministration allocating backpay to the appropriate calendar
quarters. Respondent shall also compensate the discriminatee(s)
for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than 1
year, Latino Express, Inc., 359 NLRB 518 (2012).
Further, having found that Respondent unlawfully refused to
bargain collectively with the Union, I shall recommend that the
Respondent, on request, recognize and bargain with the Union
concerning wages, hours, benefits, and other terms and condi-
tions of employment, and if an agreement is reached reduce the
agreement to a signed written contract. Additionally, the Re-
spondent shall on request of the Union, rescind any departures
41 The discriminatees are Razmik Hovhannisyan, Epifania De Jesus,
Mariana Lubowicka, Daniel Korzeniecki, Anahit Zhamkochyan, and
Emilio Figueroa.

PRESSROOM CLEANERS 677
from terms of employment that existed before the Respondent’s
takeover and retroactively restore preexisting terms and condi-
tions of employment, including wage rates and contributions to
benefit funds, that would have been paid, absent the Respond-
ent’s unlawful conduct, until the Respondent negotiates in good
faith with the Union to agreement or to impasse. New Concepts
Solutions LLC, 349 NLRB 1136, 1161 (2007). Backpay shall
be computed as in Ogle Protection Service, 183 NLRB 602
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as
prescribed in New Horizons, supra, compounded daily as pre-
scribed in Kentucky River Medical Center, supra. The Re-
spondent shall also remit all payments it owes to employee
benefit funds in the manner set forth in Merryweather Optical
Co., 240 NLRB 1213 (1979), and reimburse its employees for
any expenses resulting from the Respondent’s failure to make
such payments as set forth in Kraft Plumbing & Heating, 252
NLRB 891 fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir.
1981), such amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons, supra, compounded daily as prescribed in Kentucky River
Medical Center, supra.
The Respondent’s backpay liability for both its unlawful dis-
crimination in hiring and its unlawful unilateral changes in
employees’ preexisting terms and conditions of employment
shall be subject to the Respondent’s demonstrating in a compli-
ance hearing that, had it lawfully bargained with the Union, it
would have, at some identifiable time, lawfully imposed or
reached agreement on less favorable terms than those that ex-
isted prior to its commencing operations at the Hartford
Courant building. See Planned Building Services, 347 NLRB
670, 676 fn. 25 (2006).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended42
ORDER
The Respondent, Pressroom Cleaners, Hartford, Connecticut,
its officers, agents, successors, and assigns shall
1. Cease and desist from
(a) Coercively interrogating its employees concerning their
membership in or activities on behalf of Service Employees
International Union, Local 32BJ (the Union).
(b) Threatening its employees with discharge if they engage
in activities in support of the Union or if they speak to repre-
sentatives of the Union.
(c) Informing employees or applicants for employment that it
is a nonunion business or that it intends to operate as a non-
union business.
(d) Refusing to hire bargaining unit employees of Capitol
Carpet and Specialty Cleaning Company (Capitol Cleaning),
the predecessor employer, because they were members of and
supported the Union, and to discourage employees from engag-
ing in these activities.
42 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
(e) Refusing to recognize and bargain in good faith with Ser-
vice Employees International Union, Local 32BJ as the exclu-
sive collective-bargaining representatives of its employees in
the following appropriate unit:

All building service employees employed by the Respondent
to clean the offices at the Hartford Courant building located at
285 Broad Street, Hartford, Connecticut, excluding employ-
ees, who maintain and clean the pressroom at that building,
guards and supervisors as defined in the Act.

(f) Unilaterally changing wages, hours, and other terms and
conditions of employment of the employees in the above-
described unit without first giving notice to and bargaining with
the Union about these changes.
(g) 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 policies of the Act.
(a) Notify the Union in writing that it recognizes the Union
as the exclusive representative of its unit employees under Sec-
tion 9(a) of the Act and that it will bargain with the Union con-
cerning terms and conditions of employment for employees in
the above-described appropriate unit.
(b) Recognize and, on request, bargain with the Union as the
exclusive representative of the employees in the above-
described appropriate unit concerning terms and conditions of
employment and, if an understanding is reached, embody the
understanding in a signed agreement.
(c) On request of the Union, rescind any departures from
terms and conditions of employment that existed immediately
prior to the Respondent’s takeover of predecessor Capitol
Cleaning’s operation, retroactively restoring preexisting terms
and conditions of employment, including wage rates and wel-
fare and pension contributions, and other benefits, until it nego-
tiates in good faith with the Union to agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy sec-
tion of this decision, the unit employees for losses caused by
the Respondent’s failure to apply the terms and conditions of
employment that existed immediately prior to its takeover of
predecessor Capitol Cleaning’s operation.
(e) Within 14 days of the date of this Order, offer employ-
ment to the following former unit employees of the predeces-
sor, Capitol Cleaning, who would have been employed by Re-
spondent but for the unlawful discrimination against them, in
their former positions or, if such positions no longer exist, in
substantially equivalent positions, without prejudice to their
seniority or any other rights or privileges previously enjoyed,
discharging if necessary any employees hired in their place.

Epifania De Jesus
Razmik Hovhannisyan
Mariana Lubowicka
Anahit Zhamkochyan
Emilio Figueroa
Daniel Korzeniecki

(f) Make the employees referred to in paragraph 2(e) whole
for any loss of earnings and other benefits they may have suf-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 678
fered by reason of the Respondent’s unlawful refusal to hire
them, in the manner set forth in the remedy section of the deci-
sion.
(g) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful refusal to hire the em-
ployees named in the paragraph 2(e) and, within 3 days thereaf-
ter, notify them in writing that this has been done and that the
refusal to hire them will not be used against them in any way.
(h) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, timecards, personnel records
and reports, and all other records, including an electronic copy
of such records if stored in electronic form, necessary to ana-
lyze the amount of backpay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at its
Hartford, Connecticut facility copies of the attached notice
marked “Appendix.”43 Copies of the notice, on forms provided
43 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.”
by the Regional Director for Region 34, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous 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, posting on an intranet or an internet site, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. If the Re-
spondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since December 12, 2011.
(j) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.