GFS Building Maintenance, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 2000

330 N.L.R.B. 747 (N.L.R.B. 2000)

GFS BLDG. MAINTENANCE, INC. 747
GFS Building Maintenance, Inc. and Service Employ-
ees International Union, Local 531, AFL–CIO.
Case 34–CA–7864
February 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 2, 1998, Administrative Law Judge Wallace
H. Nations issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and supporting briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, GFS Building Maintenance,
Inc., Hartford, Connecticut, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.

Margaret Lareau, Esq. and Thomas Quiqley, Esq., for the Gen-
eral Counsel.
Mark Bourbeau, Esq. and Liam Flloyd, Esq., of Boston, Massa-
chusetts, for the Respondent.
Barbara Collins, Esq., of Hartford, Connecticut, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. This
case was tried in Hartford, Connecticut, on December 15 and
16, 1997. The charge was filed by Service Employees Inter-
national Union, Local 531, AFL–CIO (the Union) on May 15
and an amended charge was filed on August 13, 1997.1 The
complaint was issued September 9. On the entire record, in-
cluding my observation of the demeanor of the witnesses, and
after considering the briefs filed by the parties, I make the fol-
lowing

1 The General Counsel and the Charging Party have excepted to
some of the judge’s credibility findings. The Board’s established pol-
icy is not to overrule an administrative law judge’s credibility resolu-
tions unless the clear preponderance of all the relevant evidence con-
vinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F. 2d 362 (3d Cir. 1951). We have care-
fully examined the record and find no basis for reversing the findings.
Member Hurtgen agrees with his colleagues and the judge that the
Respondent did not violate Sec. 8(a)(1) by failing to hire the predeces-
sor’s employees. Because he agrees that the Respondent established
that it would not have hired the predecessor’s employees, regardless of
any union considerations, Member Hurtgen does not pass on the
judge’s finding of antiunion animus.
1 All dates are in 1997 unless otherwise indicated.
FINDINGS OF FACT
I. JURISDICTION
GFS Building Maintenance, Inc. (GFS or Respondent), a
corporation, engages in the furnishing of cleaning services for
commercial buildings. It maintains its principal office in
Nashua, New Hampshire, and performs services at a number of
locations in that State, and as pertinent to this proceeding, pro-
vides cleaning services at 10 Columbus Boulevard, Hartford
Square North, Hartford, Connecticut. The Respondent admits
and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and that the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues for Determination
GFS operates a commercial cleaning service, primarily in
New Hampshire. It is a nonunion company and in its operations
in New Hampshire it exists in an environment that is union
free. At a number of locations in New Hampshire, GFS pro-
vides cleaning services for CP Management (CP), which man-
ages the locations. In 1997, the ownership of a building in Hart-
ford, Connecticut, named Hartford Square North passed to a
company which uses CP. CP canceled the contracts of the exist-
ing providers of services to the building, including its cleaning
contractor. The janitorial employees of this contractor, Capitol
Cleaning, are represented by the Union.2 Capitol Cleaning is a
member of a group of cleaning contractors who have a collec-
tive-bargaining agreement with the Union, which represents the
janitorial employees of all cleaning contractors of major com-
mercial buildings in Hartford.
To staff the cleaning crew to be assigned to Hartford Square
North, GFS was directed by CP to use Hartford area janitorial
employees rather than send a crew of employees from New
Hampshire. GFS placed ads in the Hartford newspaper for em-
ployees, giving an 800 number for a response. It received a
number of calls from job applicants and in mid-March held
interviews and extended offers to about 12 to 14 applicants. It
began operations on March 31, the date the previous contrac-
tor’s employees learned their jobs had been terminated.
On that date, the Union’s secretary-treasurer, Kevin Brown,
two other union officials, and the terminated employees of
Capitol Cleaning confronted Lisa Bourbeau, the president of
GFS, at the site. Brown requested that she hire the terminated
employees, as called for under the union collective-bargaining
agreement with cleaning contractors in Hartford. She declined
and the Union demanded job applications. GFS directed the
Union call its 800 number and it did. After a 2-week delay,
GFS told the Union that anyone wanting an application would
have to write individually requesting one. The Union had its
member-employees write the Respondent requesting applica-
tion form in mid-April. In late May, GFS sent the application
forms to those requesting them. The affected employees sent
these back to GFS in mid-July. Since receipt of the forms, GFS
has not hired any of the applicants though it has hired several
new employees in Hartford since that date. In these circum-
2 The bargaining unit is described thusly: All occupational classifica-
tions of building service employees employed by the Employer, in
Hartford . . . and in Hartford County outside the city of Hartford, ex-
cluding industrial, hospital and retail facilities.
330 NLRB No. 115
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 748
stances, the complaint alleges that GFS was a successor to
Capitol Cleaning and further alleges that it was obligated to
hire the replaced contractor’s employees and extend recognition
to the Union. It further alleges that certain unilateral changes it
made in the wages and working conditions of the employees at
Hartford Square North were unlawful as the Union was not
afforded notice and the opportunity to bargain. For its part Re-
spondent contends that it is not a successor and it had no duty
to initially hire the replaced employees and that its long estab-
lished hiring practices make their failure to thereafter consider
the replaced employees for hiring lawful.
B. The History of the Change in Cleaning Contractors at Hart-
ford Square North
Hartford Square North is a commercial building with about
260,000 square feet of space. In the beginning of 1997, about
100,000 square feet of this space was vacant. Beginning in
1992, Capitol Cleaning, a Hartford area cleaning contractor,
secured a contract from a management company named J and S
to clean this building. At some subsequent time, the manage-
ment of this property became the job of Koll Management Ser-
vices Inc. (Koll), which kept Capitol as the building’s cleaning
service. For the entire time that Capitol was under contract to
clean the building, its cleaning employees were represented by
the Union.3 The Union represents the employees of most, if not
all of the companies providing cleaning services for commer-
cial buildings in Hartford.
At Hartford Square North, Capital performed a complete
janitorial service, 5 nights a week. The service involved dust-
ing, vacuuming, emptying trash, cleaning restrooms, and clean-
ing tenant and public areas of the building. The details of the
cleaning service it was required to provide were set forth in its
contract with Koll and in the leases of the building’s tenants. At
the end of March 1997, Capitol had 12 employees working on
regular basis in the building and it was cleaning about 165,000
feet of the building.
In 1996, an investment group called Pacific Northwest Mort-
gage Investors, L.L.C. with The Wilkinson Group as manager,
became interested in purchasing Hartford Square North. It al-
ready owned a smaller building across the street named Hart-
ford Square West. The Wilkinson Group utilized the manage-
ment services of CP Management. In turn, CP regularly used
the services of GFS for some properties it managed in New
Hampshire.
GFS had in the past cleaned buildings managed by CP in
New Hampshire. In January 1996, CP asked if GFS would be
interested in cleaning Hartford Square West in Hartford. This
building was only 60,000 square feet, a size too small for GFS
to profitably service. In October 1996, CP again contacted GFS
and asked that they study the floor plans of Hartford Square
North, which was being acquired by one of their clients, the
Wilkinson Group. GFS was asked to give a cost proposal for
cleaning that could be used in securing financing for the pur-
chase. GFS provided the estimate. Thereafter, CP notified GFS
that the sale was going through and arranged for GFS’s presi-
dent, Lisa Bourbeau, to have a tour of Hartford Square North
and West. The plan was for GFS to clean both buildings if the
sale was finalized.

3 Capital also has some nonunion operations including window and
carpet cleaning services.
The tour of Hartford Square North was conducted by Dave
Jacobs, who was then employed by Koll as the building man-
ager for the building. According to Bourbeau, during the tour
Jacobs noted that the cleaning contractor at Hartford Square
North was unionized and he asked if she had any experience
with unions and she said no. She also told him that she had no
cleaning contracts in cities where the cleaning contractors were
unionized.4 Jacobs then said it was not like anything she had
experienced. He said she could not do what she wanted, that the
unions had Hartford sewn up. He warned her that if she came
into the building as a nonunion contractor, she could expect the
Union to picket and do whatever it could to get her out. He also
said that his management company did not intend to give up
managing the building and that he had no intention of replacing
Capitol. For this reason, he gave her an abbreviated tour of the
building and refused to give her the cleaning specifications for
the building. She then met with a CP representative and toured
Hartford Square West. She told this representative of her meet-
ing with Jacobs and he said he would relate it to his client. He
also said for her to plan on providing the cleaning services for
the buildings. This conversation took place in late January or
early February.
During the last of 1996 and until Koll’s departure from Hart-
ford Square North at the end of February, when the sale to the
Wilkinson Group was finalized, Jacobs was in regular contact
with CP.5 Jacobs let CP bring in engineers to view the building
and let it use some vacant space to conduct interviews. He
learned that CP had an existing relationship with GFS. Jacobs
testified that prior to the end of February, he told Bob Symolon,
the president of Capitol Cleaning, that he understood that Capi-
tol Cleaning was to be replaced by a nonunion company.
Symolon was given written notice on February 27; notice
that Capitol Cleaning’s contract for Hartford Square North was
to be terminated from the Wilkinson Group. The Wilkinson
Group terminated Koll as manager of the building on that date
and replaced Koll with CP. Symolon got final notice of the
termination of his contract when he was faxed a termination
notice from CP on March 31.6 In the third week of March, Sy-
molon called Marty Schwager, a CP official. According to Sy-
molon, he asked what his chances were to stay on at the build-
ing and continue to provide cleaning. He mentioned to Schwa-
ger that he had heard that CP was thinking of hiring a nonunion
cleaning company, noting that all the downtown Hartford build-
ings were cleaned by union companies. According to Symolon,
he was given encouragement by Schwager with regard to his
chances of being retained.
Symolon did not tell his employees that the contract was be-
ing terminated. He did contact the Union’s secretary-treasurer,
Kevin Brown, during the first week of March to inform him of
4 Under the collective-bargaining agreement between the Union and
cleaning contractors in Hartford, when one contractor is replaced by
another at a given building, the new contractor must hire the site em-
ployees of the contractor being replaced. Bourbeau testified that she
was not told this by Jacobs and that she first learned this from an en-
counter on March 31, with Kevin Brown, secretary-treasurer of the
Union. I credit this testimony.
5 Koll was not allowed to bid on the contract for managing the build-
ing for the Wilkinson Group.
6 CP had intended to terminate Capitol Cleaning as of February 27,
but overlooked a contract requirement that 30 days’ notice must be
given prior to termination. Thus, Capitol Cleaning received a 30-day
reprieve.
GFS BLDG. MAINTENANCE, INC. 749
the termination letter. Capitol Cleaning had never cleaned Hart-
ford Square West. On March 27, Symolon had another conver-
sation with Brown in which he expressed some optimism that
his company might stay on at Hartford Square North. This was
based on the conversation he had had with Schwager, in which
he had been told that there may be a bidding process for the
contract.
Kevin Brown testified that there were about 20 tenants in the
building when Capitol was the cleaning contractor. The Union
became the representative of the cleaning employees at the
building in 1991 when the Union was recognized by the then
cleaning contractor, Unico Cleaning Services. When Capital
took over the contract in 1992, it hired all the janitorial em-
ployees working at the building. The cleaning employees at
Hartford Square North under Capital usually worked from 4 to
6 hours a night, 5 nights a week.
Brown testified that he first learned of the change in owner-
ship of the building sometime around the first of March. He
learned that Capitol Cleaning no longer had the cleaning con-
tract on March 31, when Symolon informed him of this fact. On
March 27, Symolon had told him that there might be a change,
but that he was trying to work it out. Also during March,
Brown spoke with Schwager of CP. Schwager told him all con-
tracts in the building had been canceled. Brown asked if he
wanted a list of union cleaning contractors and Schwager said
he did. Brown sent such a list to him. Schwager did not tell him
he was considering using a nonunion cleaning company.
C. GFS Hires Employees and Begins Cleaning Hartford
Square North
During late January or early February, Bourbeau was in-
formed that GFS would be the cleaning contractor for Hartford
Square North. Shortly thereafter, Bourbeau was informed by
CP that the cleaning was to be done by Hartford residents be-
cause the city’s economy was depressed. In previous instances
where she began cleaning a building, she initially started with a
core group of her existing employees. CP would not allow this
practice at Hartford Square North; therefore Bourbeau was
forced to hire employees in Hartford. Bourbeau testified that
she did not ever consider hiring the existing janitors at Hartford
Square North as she considered hiring away another contrac-
tor’s employees to be unethical. She testified that the only times
that she had done so were when this was a requirement for
obtaining a contract. She was also told that cleaning was to
begin at the first of March. Bourbeau had GFS Account Execu-
tive Ed Farrington place ads in the Hartford newspaper for full-
time and par-time cleaners and experienced floor cleaners.
These ads, which ran in the editions of February 19, 20, and 23,
read: “JANITORIAL Seeking FT/PT Cleaners and exp’d Floor
Person, GFS Building Maint. 800–852–6200.”7 In response to
the ad, GFS received about 40 to 60 phone calls from prospec-
tive job applicants. They took information from these people
and told them the locations that would be involved. Shortly
after the group of prospective applicants was known, CP in-
formed GFS that its service would not be needed until the end
of March because of the failure to give a contractually required
30-day notice for termination of Capitol Cleaning’s contract.
Because of the delay in startup, the job interviews of the pro-
spective applicants were postponed until mid-March. The inter-

7 GFS placed in evidence a number of ads placed by other cleaning
companies. As was the case with GFS’s ads, these did not name the
location for which employment applicants were needed.
views were held in space provided by CP to GFS in the Hart-
ford Square West building. This was furnished space that CP
had vacated when it moved to Hartford Square North. Bour-
beau stated that they did not interview prospective employees
in Hartford Square North because of insurance concerns. She
testified that CP maintained insurance on the space it made
available for the interviews. The interviews were conducted by
Farrington and he hired a number of the applicants.8 Following
the interviews, orientation was held for the new employees on
March 29 at Hartford Square North. At this orientation, a new
employee brought a friend who was also hired.
D. The Union Demands Recognition and GFS Refuses
During Kevin Brown’s conversation with Symolon on March
31, Symolon told him that the affected janitorial employees had
not been told of the change and that they would be showing up
for work. Brown then went to the building with two other union
representatives to meet the employees and break the news to
them. When the employees arrived, Brown told them they had
been replaced and that a nonunion company had taken over the
cleaning contract. He had security contact Lisa Bourbeau in
order to get job applications from her. Bourbeau met Brown in
the lobby and he told her that the job had been a union job and
that in the Hartford area, when contractors change, they hire the
employees who had been cleaning the involved property. Ac-
cording to Brown, Bourbeau explained that she had placed an
ad in the local newspaper for janitors, had conducted inter-
views, and hired new employees. According to Brown, she also
told him that she might need employees for a job she was get-
ting at another building, but that the owner of Hartford Square
North did not want a union in the building. She explained that
in New Hampshire, when she lost a contract, she found work
for the displaced employees at another job. She noted that GFS
had not laid off an employee in the Company’s 30-year history.
Brown again asked for applications and she said she would get
them to him the next day. She gave him the Company’s New
Hampshire phone number and said that after he had called
there, she would be back in touch with him. Bourbeau also told
him the wages she was paying, which were less than the wages
the Capital employees had been making. She added that there
was no pension and limited health benefits.
Bourbeau testified about the meeting with Brown and the
displaced janitors. According to Bourbeau, he told her he was
with the Capitol Cleaning janitors who just learned that they
had lost their jobs. Bourbeau asked why they were not shifted
to other jobs, noting that she would not abandon her employees.
Brown asked her to hire the displaced janitors and Bourbeau
said she had already hired a complete staff. Brown suggested
she fire the employees she had hired and she declined. Brown
then demanded job applications and Bourbeau said she did not
have any with her. She gave him the Company’s headquarters’
phone number and told him to call to get application forms.
Bourbeau testified that the meeting was confrontational and
intimidating.
The following day, Brown called Respondent’s New Hamp-
shire office and spoke with a secretary. Bourbeau called back
shortly thereafter. Brown reiterated his desire to have Bourbeau
hire the Capital employees. Bourbeau told him that if she had to
pay the union wages, she would lose the Hartford contract.
8 One of the applicants was named Ray Chrzastek and was then a
current employee of Capitol. GFS attempted to hire him as a supervisor
and he initially accepted, but turned down the job before it began.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
Brown suggested that she reduce the level of service to keep
costs down so she could pay union wages. Brown then said he
would fax a list of the employees who had been displaced. Ac-
cording to Brown, Bourbeau said she would send him applica-
tion forms for the displaced employees to file. On April 1, not
having gotten the applications the Union sent a letter requesting
the forms. On April 7, the Union received a letter from GFS
saying that the janitors who wanted an application should indi-
vidually request one. In mid-April, the Union met with the
involved janitors and they signed form letters requesting appli-
cations. These were then mailed to GFS. Subsequently, the
displaced employees received the application forms which were
filled out and returned to GFS. None of these janitors had been
hired by GFS to date of hearing.
Bourbeau also testified about this telephone conversation
with Brown and her subsequent actions. In the conversation,
she told him what she was paying the employees and he told
her the union rate. She explained she could not pay that rate
because of her price commitment to CP. He suggested she raise
her wages and cut service to meet the commitment. She ex-
plained that she also had a service commitment. Brown then
accused her of union busting, noting he could not let her get
away with it.
Bourbeau testified that for a period beginning March 31 she
worked continuously at Hartford Square North, training the
employees and learning the requirements for cleaning the build-
ing, working from 11 to 4 a.m. In mid-April, GFS received the
packet of application requests from displaced janitors. She
opened the packet in mid-May, having not dealt with any mail
to that point. She had a GFS employee send application forms
to the persons requesting them.9 In early July, GFS received
back completed application forms. Since the original hiring
process, she has no job openings that have not been filled
through the Company’s internal referral process.10
GFS began cleaning Hartford Square North with 14 employ-
ees. The number of employees working there has ranged from
11 to 14 to date. Since the startup date, GFS has hired replace-
ment employees for employees who quit or were terminated. It
hired 1 at the end of March, 13 in April, 5 in June, 2 in August,
2 in September, 6 in October, 3 in November, and 1 in Decem-
ber. All of these employees were referred by other employees
and none filled out employment applications. According to
Bourbeau, all of these employees had prior cleaning experi-
ence. Starting employees are paid $7 per hour and those em-
ployees who perform well are raised to $7.50 per hour. Only
full-time employees working 40 hours a week receive any
benefits. There is only one employee at Hartford Square North
working that number of hours. At the time the original em-
ployee complement was hired for Hartford Square North,
Bourbeau was not aware of the union pay scale in Hartford.
GFS began providing cleaning services at Hartford Square
West on June 1, assigning two to three employees to that build-
ing on a regular basis. The cleaning services provided at Hart-
ford Square North are fundamentally the same as those pro-
vided by Capitol Cleaning. Specifically, Capitol Cleaning’s
work consisted generally of dusting, vacuuming, emptying

9 Though Bourbeau may had had to deal with company bills person-
ally, there was no reason application forms could not have been sent
out by a clerical employee when they were first requested.
10 This method of hiring is Respondent’s excuse for not interviewing
or hiring any of the displaced Capitol Cleaning employees and will be
discussed at length at a later point in this decision.
trash, cleaning restrooms, and cleaning both tenant and public
areas. The more detailed specifications of that work are set
forth in Capitol’s cleaning contract with Koll. Bourbeau was
supplied by CP with the cleaning requirements that, at the time
of her takeover, existed in the leases between the building man-
agement and the tenants, and which to her knowledge predated
March 31. She was expected to include those services in her
cleaning. Those tenant lease documents are duplicates of those
included as part of Capitol Cleaning’s contract with Koll, ex-
cept that the day matron specifications do not appear in Bour-
beau’s tenant documents. Bourbeau employed only a day por-
ter, not a day matron. After the takeover, GFS continued to
provide all but a very small percentage of the services specified
in those lease documents, with some adjustments in the fre-
quency with which certain services were provided. In sum, like
Capitol Cleaning, GFS’s cleaning work consisted generally of
dusting, vacuuming, emptying trash, cleaning restrooms, and
cleaning both tenant and public areas of the building.
Capitol Cleaning utilized the janitors at Hartford Square
North in the job classifications of light duty cleaner, heavy duty
cleaners, day matron, and day porter. Those individuals as-
signed to the building worked primarily at that site. Other than
two janitors working as day matron and day porter, the crew
worked evenings. Similarly, GFS worked an evening cleaning
crew, and day porter, though not a day matron. Capitol Clean-
ing’s day porter worked on weekdays from 7 a.m. to 1 p.m,,
whereas as least as of the summer under the effective GFS job
description, its day porter worked either 6 a.m. to 3:30 p.m. or
7:30 a.m. to 4 p.m. Under Capitol Cleaning, workers’ weekly
hours ranged from 20 to 30, and under GFS, hours ranged from
15 to 30–40, with eight of the janitors working less than 20
hours per week.
In May, Bourbeau was made aware of a union petition
signed by some of the Hartford Square North tenants. She testi-
fied that there were many tenant complaints during the first
month of operation. These complaints subsided as time went by
and the tenant’s concerns were addressed. One of the persons
complaining was Rose Hartford, office manager for E Enter-
tainment, a tenant in Hartford Square North. Hartford testified
that when Capital provided cleaning services, it assigned one
cleaner, Lydia Colon, to their space. She considered this person
to be excellent at her job. When GFS took over, there were
problems and she complained frequently to Bourbeau. This was
in late April or early May. In one of her conversations with
Bourbeau, she mentioned how good Colon had been. Bourbeau
told her that in her years of doing business, she had never hired
union employees. Hartford offered to give Bourbeau Colon’s
phone number, but Bourbeau declined it saying that if Colon
wanted to work for GFS, she should contact the Company.
Bourbeau testified that when she received applications from the
former employees in July, she looked for one that gave Rose
Hartford as a reference, but could not find one. She testified
that she had by this time forgotten the name given by Rose
Hartford.
Hartford, along with a number of other tenants, signed a peti-
tion circulated by the Union. This petition reads:

Dear CP Management: We the tenants of 10 Columbus
Circle, request that you hire a contractor which will rehire
the janitors that were fired on April 1, 1997. We find the
position that CP Management has taken by firing the pre-
vious contractor and hiring a new contractor which re-
placed the 14 janitors abhorrent. We have known many of
GFS BLDG. MAINTENANCE, INC. 751
the janitors personally. Some of them had been here for
many years. Now, due to CP Management, they do not
have jobs or benefits with which to support their families.
Part of running a successful building is consistent service,
such as cleaning and we are paying the same rent with in-
ferior services. The quality of the new janitors is simply
not up to par with the terminated janitors who we knew
and trusted. We urge you to rehire a contractor who will
rehire the old janitors.

At some point in May, GFS received the original charge in
this case and secured labor counsel. Subsequently the Union
attempted to organize GFS’s Hartford employees and this effort
was opposed by GFS. Inter alia, this opposition was expressed
in a speech given to employees by Bourbeau. In the speech she
makes it clear that she will do everything legal to keep the Un-
ion from organizing her employees. The Union has engaged in
leafleting at the building protesting GFS’s refusal to hire the
displaced janitors and recognize the union.
E. Is Respondent the Successor to Capitol Cleaning and Obli-
gated to Recognize and Bargain with the Union with Respect to
its Hartford Employees?
In NLRB v. Burns Security Services, 406 U.S. 272 (1972),
the Supreme Court upheld the proposition that a mere change
of employers or of ownership of an enterprise did not mean that
the new employer had no obligation to bargain with its
predecessor’s employees. In the circumstances of that case, and
where “the bargaining unit remained unchanged and a majority
of employees hired by the new employer are represented by a
recently certified bargaining agent,” the Court found a duty to
bargain on the part of the new employer. This doctrine was
refined in Fall River Dyeing Corp. v. NLRB, 482 U.S. 27, 43–
45 (1987), with the Court’s holding “that a successor’s obliga-
tion to bargain is not limited to a situation where the union in
question has been recently elected. Where . . . the union has a
rebuttable presumption of majority status, this status continues
despite the change in employers and the new employer has an
obligation to bargain with that union so long as the new em-
ployer is in fact a successor of the old employer and the major-
ity of its employees were employed by the predecessor.” (Foot-
note omitted.)
In Fall River Dyeing, supra, the Court went on to discuss the
appropriate approach to determining whether an acquiring
company is in fact a successor to the old company. More spe-
cifically, where an 8(a)(5) violation is alleged in the context of
one employer assuming the operations of a predecessor em-
ployer, the General Counsel must demonstrate both the major-
ity status or constructive majority status of the union in an ap-
propriate unit, and a “substantial continuity” between the em-
ploying enterprises. As stated by the Board in another case
involving the takeover of a cleaning operation,
“The threshold test developed by the Board and approved by
the Supreme Court in Burns and Fall River Dyeing for deter-
mining successorship is: (1) whether the majority of the new
employer’s work force in an appropriate unit are former em-
ployees of the predecessor employer; and (2) whether the new
employer conducts essentially the same business as the prede-
cessor employer.” (Footnoted citations omitted.) Sierra Realty
Corp., 317 NLRB 832 at 835.
The Court in Fall River Dyeing, supra, 482 U.S. at 41, fo-
cused on the following criteria in determining whether there
exists the requisite “substantial continuity,” namely:

whether the business of both employers is essentially the
same, whether the employees of the new company are doing
the same jobs in the same working conditions under the same
supervisor, and whether the new entity has the same produc-
tion process, produces the same products, and basically has
the same body of customers.
Since that case, the Board has had multiple instances
to apply those standards in the cleaning and other service
industries, as referred to below.

Continuity in the business enterprise exists in the instant case
where the Respondent is providing the same cleaning business
provided by the predecessor, at the same location and without
any hiatus or 308 NLRB 310 (1992) (successorship found
where respondent performed the same cleaning work at same
location with same basic work schedule and job classification,
and no hiatus between cleaning contractors); Sierra Realty,
supra (successorship found where building management com-
pany assumed the cleaning operation previously performed in
its building by a cleaning contractor). More specifically, Re-
spondent’s cleaning operation at the time it began cleaning on
March 31 encompassed the same square footage in the same
building, the same tenants and essentially the same cleaning
services that were previously provided by Capitol Cleaning,
namely dusting, vacuuming, emptying trash, cleaning rest-
rooms, and cleaning both tenant and public areas, all subject to
the same tenant lease requirements under which Capitol Clean-
ing operated. There is no evidence that Respondent effectuated
any significant change in the character of the cleaning services
provided at Hartford Square North. Rather, Respondent’s evi-
dence only identified minimal changes, such as variations in the
frequency of delivery of certain services, the transfer of the task
of changing light bulbs away from Respondent, and some
changes in the chemicals used. Such minimal changes in opera-
tion methods do not undercut the continuity in business opera-
tions which is a component of successorship. See Systems
Management, 292 NLRB 1075 (1989). Further, that continuity
is not negated by the type of posttakeover tenant expansion and
relocation noted in the record.
Moreover, in discussing Fall River Dyeing, supra, the Board
has stated, “[T]he Court made it clear in that case that the fac-
tors it set out for determining whether a new employer has
continued the same service operations as the predecessor are to
be assessed primarily from the perspective of the employees.
Thus, the question is whether those employees who have been
retained will . . . view their job situations as essentially unal-
tered.” Sierra Realty, supra at 835. In Fall River Dyeing, the
Court expressly noted the particular significance of the fact
that, from the perspective of the employees, their jobs did not
change. Similarly, here employees’ job functions are “essen-
tially unaltered”—the janitors are still performing basic clean-
ing tasks. See Planned Building Services, 318 NLRB 1049
(1995) (acquiring building maintenance company found to be a
successor).
An argument to the effect that continuity of the business en-
terprises cannot exist because Respondent did not purchase any
tangible assets of the predecessor cleaning contractor, must fail.
In Burns, supra, the seminal case, a guard service took over an
operation without purchasing its predecessor’s assets, and it
was found by the Supreme Court to be a successor (see also
Sierra Realty, supra at fn. 16, expressly rejecting the signifi-
cance of the absence of purchased assets). Further, the Board
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
has found a successor bargaining obligation in numerous cases
involving cleaning contractors where there apparently were no
such purchases. Laro Maintenance Corp., 312 NLRB 155
(1993); Systems Management, supra; Weco Cleaning Services,
supra.
Neither is “continuity” destroyed or successorship defeated
here because Respondent did not hire Capitol Cleaning’s su-
pervisor. See Sierra Realty, supra at 835, citing Boston-
Needham Industrial Cleaning Co., 216 NLRB 26, 27 (1975)
(where “other factors indicate that essentially the same opera-
tion has been continued” the fact that there may not be a “sub-
stantial continuity in employment of the predecessor’s supervi-
sory staff,” is not “of overriding importance”).
Further, while other Board cases may enumerate more indi-
vidual factors contributing to a finding of successorship than
found here, and regardless of changes in the management com-
pany and building owner in this case, the most significant fac-
tors demonstrate continuity, namely it is fundamentally the
same cleaning services which are provided in the same building
for the same ultimate customers, and the employees would
view their jobs as essentially the same.
Turning to the issue of the Union’s majority status, that ma-
jority status will be established if a finding of discrimination is
made with respect to the hiring practices for Respondent’s ini-
tial startup operations on March 31. First it is clear that the
collective-bargaining unit is the unit of the building service
employees employed by Respondent at Hartford Square North.
A single location bargaining unit is preemptively appropriate.
Sierra Realty, supra at 836; NLRB v. Boston Needham Indus-
trial Cleaning Co., 528 F.2d 74 (1st Cir. 1975). At the time
Respondent began operations on March 31, Hartford Square
North was its only Hartford area operation. Respondent did not
begin cleaning Hartford Square West until June 1. Accordingly,
Respondent’s duty to bargain is to be determined as of March
31, 1997, in the appropriate unit at that time.
Second, turning to the issue of majority status with the above
described unit, “[i]t is now well settled that where, as here, an
employer is found to have engaged in a discriminatory refusal
to hire its predecessor’s employees, the Board infers that all the
former employees would have been retained, absent the unlaw-
ful discrimination.” Love’s Barbeque Restaurant No. 62, 245
NLRB 78, 82 (1979); Kallman v. NLRB, 640 F.2d 1094 (9th
Cir. 1981). Under such circumstances the Board presumes that
the union’s majority status would have continued. State Dis-
tributing Co., 292 NLRB 1048 (1987). Concerning the infer-
ence that former employees would have been retained, also see
New Breed Leasing Corp. v. NLRB, 317 NLRB 1011, 1025
(1995); American Press, Inc. v. NLRB, 833 F.2d 621, 626 (6th
Cir. 1986); and Shortway Suburban Lines, 286 NLRB 323
(1987).
Thus, since Respondent meets the “continuity of the employ-
ing enterprise” under Fall River Dyeing, supra, and the Union
would have continued to enjoy majority status but for the dis-
crimination in hiring, Respondent is a Burns successor if it in
fact discriminated in the hiring process. If that is shown, Re-
spondent would also have violated Section 8(a)(5) by refusing
to recognize and bargain with the Union. Moreover, if it dis-
criminated in the hiring process, GFS’s admitted unilaterally
implemented changes in wages and benefits would be unlawful.
Burns, supra; Kallman v. NLRB, supra; Shortway Suburban
Lines, Inc., supra.
F. Did Respondent Discriminate in its Initial and Subsequent
Hiring in Hartford?
Section 8(a)(3) of the Act bars employment discrimination
based on antiunion motivation. Where a violation of Section
8(a)(3) is alleged, the General Counsel bears the burden of
proving by a preponderance of the evidence that an employee’s
union membership, activities, or other protected concerted con-
duct was a substantial motivating factor in an employer’s ad-
verse action against that employee. This proof, which normally
includes proof of union animus, and adverse action against the
alleged discriminatee, constitutes the General Counsel’s prima
facie case. Once the General Counsel has made a prima facie
case that an employee’s protected conduct was a motivating
factor in the employer’s decision, the burden shifts to the em-
ployer to show that it would have taken the same action even in
the absence of the protected conduct. Wright Line, 251 NLRB
1083 (1980).
Although a successor employer is not obligated to hire its
predecessor’ employees, the successor may not refuse or fail to
hire predecessor employees because of their union membership
or in order to avoid the obligations of a successor employer
under NLRB v. Burns Security Services, 406 U.S. 272 (1972).
In U.S. Marine, 293 NLRB 669, 670 (1989), the Board summa-
rized the factors that will establish that a successor violated
Section 8(a)(3) by refusing to hire the employees of a predeces-
sor:

substantial evidence of union animus, lack of a convincing ra-
tionale for refusal to hire the predecessor’s employees; incon-
sistent hiring practices or overt acts or conduct evidencing a
discriminatory motive; and evidence supporting a reasonable
inference that the new owner conducted its staffing in a man-
ner 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 [citations omitted].

The Union was the exclusive bargaining agent for the jani-
tors at Hartford Square North since about 1991. Respondent
was aware of this at least by mid-January, when Bourbeau was
informed of this fact by Jacobs during her tour of the building.
Jacobs also warned her that the Union would take steps to get
back into the building if she did not use union labor. Accord-
ingly, Respondent had knowledge of union activities of the
predecessor employees, an ingredient of a prima facie case.
Substantial evidence of union animus is found in the admis-
sion of Bourbeau on March 31, that she “knew the building
management didn’t want a union in that building, and that if
they were union, they would lose the job just like the old con-
tractor did.” It is also found in Bourbeau’s statement on April 1
that if she had to pay the union rates, she would lose the job,
that she would be thrown out of the building, that the manage-
ment company wanted to keep costs down, and that the Union
rates were beyond what she would pay.” Comments about
keeping labor costs down are fundamentally statements of anti-
union animus. Where a refusal to hire is motivated by a desire
to avoid paying union wage scale, that refusal constitutes
unlawful discrimination under the Act. Sierra Realty Corp., 317
NLRB 832, 835 (1995); NLRB v. C.J.R. Transfer, Inc., 936
F.2d 279, 283 (6th Cir. 1991). Not only do Bourbeau’s com-
ments include references to the costs of unionization, but she
admits that Respondent’s employee-related costs would be
higher under the union contract than under Respondent’s cur-
rent terms. The animus is even more evident in Bourbeau’s
GFS BLDG. MAINTENANCE, INC. 753
June speech to her incumbent employees, in which she ex-
pressly stated that she was opposed to having a union there and
did not want it.
The General Counsel submits that Respondent’s hiring prac-
tices for the initial hiring crew in Hartford reflect its antiunion
animus. Antiunion motivation can be inferred from the charac-
ter of the hiring practices of a business assuming an operation.
See Daka, Inc., 310 NLRB 201(1993); Houston Distribution
Services, 227 NLRB 960, 966 (1977). Specifically, the General
Counsel points out that Respondent’s ads were “blind” as to the
location of the building involved and interviews were held off
site. See New Breed Leasing, 317 NLRB 1011 (1965) (blind
ads and off-site interviews were among the factors relied on in
drawing inference of animus). See also Shortway Suburban
Lines, 286 NLRB 323, 328 (1987) (“long distance” hiring prac-
tices among factors relied on) and Systems Management (blind
ads combined with fact that predecessor’s employees were not
notified of job loss until after new employees were hired sug-
gesting prima facie case of discrimination). The General Coun-
sel also cites Systems Management, supra, and Daka, Inc., su-
pra, for the point that the successor disregarded predecessors
employees’ applications and selected individuals for hire who
did not meet the successor’s qualifications, or decided to screen
out, without interview, predecessor employees who met the
successor’s qualifications. The Board in these cases found that
there was an object by the successor to avoid hiring a majority
of the predecessor employees as revealed by the successor go-
ing to great lengths to avoid considering the predecessor em-
ployees as a pool of experienced workers.
I do not find that the factors relied on in the cases cited have
been established here. Bourbeau credibly testified that she does
not hire the employees of a predecessor employer except in the
circumstances where the company offering the cleaning con-
tract requires it. In this regard there are only two or three in-
stances in the Company’s 30-year history where this occurred.
Thus, regardless of Respondent’s antiunion animus, it followed
a long-standing policy here, one which did not originate from
animus. Second Respondent put in unrebutted evidence that ads
for new employees in the cleaning industry are blind as to the
location of the building to be cleaned. A number of ads for
other cleaning contractors from the same newspaper used by
Respondent to hire employees in Hartford are similarly blind.
Bourbeau testified without contradiction that anyone respond-
ing to the ads was told the location for which employees were
being hired, further weakening any argument that Respondent
was trying to hide this information. Third, Respondent offered a
rational reason for interviewing off site, across the street at
Hartford Square West. Its building manager, CP, made fur-
nished and insured space available to it at no cost. If anyone
was hiding the ball about the upcoming changeover to GFS
from Capitol Cleaning to GFS, it was Koll and its employee
Jacobs. He knew the identity of the new contractor as early as
January when he gave Bourbeau the tour of Hartford Square
North. He knew then GFS was a nonunion contractor. At any
time thereafter, he could have told Symolon or Brown that the
contract was likely to be given to GFS. Instead, he waited to the
end of February to tell Symolon that he was likely being re-
placed by a nonunion contractor and Symolon waited a week to
tell Brown that he might be replaced, failing to impart the in-
formation that that contractor was nonunion. Symolon never
told the affected employees that they were losing their jobs
until it was a fact. Telling them of the upcoming change in
contractors would have gotten the information to the Union
before any job interviews were held. Though Symolon testified
that he was relying on misleading inferences given him by CP’s
Marty Schwager, this was clearly wishful thinking in light of
the clear written notice given him February 27 from Wilkinson
that his contract was being terminated and Jacobs warning that
he was being replaced by a nonunion company.
Though the General Counsel is correct in asserting that the
predecessor employees here involved were experienced and
would meet the qualifications needed by Respondent, there is
no corresponding showing that the employees hired by respon-
dent were not likewise experienced and met those qualifica-
tions. In conclusion, Respondent has offered rational, non ani-
mus motivated reasons for the manner in which it conducted its
original hiring in Hartford and I find that it did not violate the
Act in this regard as alleged in the complaint.
There remains however, a question with respect to the legal-
ity of Respondent’s actions after March 31, when it first de-
layed the filing of applications by the predecessor employees
and then refused to consider them when they were filed in July.
In its defense, Respondent points to its long-standing employ-
ment practices. GFS has been in business for about thirty years.
The Company attempts to maintain a family atmosphere, a
philosophy it started with. The founder of the Company would
clean using family members and friends to help. With some
exceptions it hires only from referrals from its existing employ-
ees.11 In the last 2 years, it has had to vary on occasion from
the internal referral hiring system because the labor market in
New Hampshire has been tight. It has for some time maintained
an advertising piece it gives to prospective customers. Inter
alia, it describes the Company’s hiring practice thusly:

The recruitment of GFS employees, a full time work
force, is done 100% through internal referrals and recom-
mendations, creating the atmosphere of an extended fam-
ily, and reinforcing a structure based on team effort. In ad-
dition, the GFS turnover rate is less than 2% annually, far
below the industry average.

With two exceptions, GFS has never hired the employees of
another cleaning company when it has taken a cleaning con-
tract. On two occasions, the party offering the contract to GFS
made it a requirement that GFS give a preference to what were
in house janitors. In one of these cases, GFS offered to inter-
view about 44 previously in-house janitors. Four of these per-
sons showed up for interviews and they were offered jobs.
None accepted. In the other case, the contractor required that
one in-house day porter be retained and the person was hired by
GFS.
Except in the limited instances when forced to do so by the
entity with which it was contracting, GFS departed from its
internal referral hiring practice for the first time in 1996 when it
placed an ad in the “Manchester Union Leader.” It departed
from this practice three times in 1997. The first was its hiring of
employees in Hartford. The second was an ad for job applicants
placed in the “National Broadcaster” in June and the third was
an ad placed in a local New Hampshire paper in 1997. The
reasons for the departure in the case of Hartford has already
been discussed. The other two departures from using internal

11 The Company employs a bonus system to reward employees who
refer new employees who become permanent.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
referrals were caused by an inability of the internal referral
system to produce new employees.
Though I find that the General Counsel has made a prima fa-
cie case under a Wright Line analysis, I find that Respondent
has credibly demonstrated that it would have followed the same
hiring practices in Hartford even in the event the Union was not
involved. Bourbeau credibly testified that she does not hire the
employees of cleaning contractors she replaces and credibly
testified that Respondent follows its internal referral system if
at all possible. This system, as noted above has been used since
the inception of GFS some 30 years ago. The Company has
never departed from its usage except when directed to do so, as
in the hiring of the initial complement of workers in Hartford,
or when internal referrals did not meet is hiring needs. This
system of hiring was clearly not implemented by the Company
to avoid a union. That it has that effect currently in Hartford
does not seem to me to make it unlawful. Bourbeau testified
that she would consider the predecessor employees for hiring if
she could not meet her needs through the internal referral sys-
tem. Thus far, she has been able to hire all the employees she
needs through internal referral. I do not believe that all the fac-
tors set out in U. S. Marine, supra, have been established.
Though GFS clearly harbors animus, I believe it has shown that
it would have conducted its hiring in the same manner absent
any union activity on the part of the predecessor employees. It
has never hired predecessor employees when it took over a
contract, except when directed to do so by its principal. It has
never been shown to have voluntarily abandoned its internal
referral system. Thus its hiring practices in Hartford are not
inconsistent with its past practice which has existed in a union
free environment.12
On the other hand, there was no credible explanation offered
for the delay in supplying the Union or the former employees of
Capitol Cleaning with job applications. I find that this was
clearly caused by Respondent’s animus and was unlawful.
Weco Cleaning Specialists, supra.
CONCLUSIONS OF LAW
l. GFS Building Maintenance, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by its delay
in supplying the Union and its members with job applications
for the employees displaced by Respondent’s takeover of the
cleaning contract at Hartford Square North.
4. Respondent did not commit other unfair labor practices.
REMEDY
Having found Respondent has engaged in conduct in viola-
tion of the Act, it is ordered to cease and desist therefrom and
to post an appropriate notice.

12 It appears to me that to find Respondent’s internal referral system
to be unlawful or to find that it cannot rely on the system because it has
the effect of making it difficult for the Union to get members hired by
Respondent to be a policy determination for the Board. As I have found
that Respondent’s hiring actions are consistent with its past practice in
a nonunion environment, I do not believe I can find them unlawful
under existing case law.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended13
ORDER
The Respondent, GFS Building Maintenance, Inc., Nashua,
New Hampshire, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Delaying supplying job applications to the Union or its
members.
(b) In any like or related manner interfering with, restraining
or coercing employees in the exercise of rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its of-
fice in Hartford, Connecticut, and mail to the Union’s office
copies of the attached notice marked “Appendix.”14 Copies of
the notice, on forms provided by the Regional Director for Re-
gion 34, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, defaced,
or covered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since March 31,
1997.
(b) 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.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
13
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
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
14 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.”
GFS BLDG. MAINTENANCE, INC. 755
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT delay or fail to supply the Union or its members
with job applications upon request.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of rights guaranteed
by Section 7 of the Act.

GFS BUILDING MAINTENANCE, INC.