Pressroom Cleaners, Inc.

National Labor Relations Board - Administrative Judge Opinions

Mar 29, 2013

34-CA-071823 (N.L.R.B. Mar. 29, 2013)

JD(NY)–14–13
Hartford, CT
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
NEW YORK BRANCH OFFICE
PRESSROOM CLEANERS
and Case 34-CA-071823
SERVICE EMPLOYEES
INTERNATIONAL UNION, LOCAL 32BJ
Sheldon Smith, Esq. and Thomas E. Quigley, Esq.,
Hartford, CT for the General Counsel.
Raymond R. Aranza, Esq. (Scheldrup Blades
Schrock Smith Aranza PC), Omaha, NE for
the Respondent.
Andrew Strom, Esq., New York, NY for the Charging
Party.
DECISION
Statement of the Case
Steven Fish, Administrative Law Judge: Pursuant to charges and amended charges filed
by Service Employees International Union, Local 32BJ, herein called the Union or Charging
Party, on January 4, 2012 and March 9, 2012,1 respectively, the Director for Region 34 issued a
complaint and notice of hearing on May 31, alleging that Pressroom Cleaners, herein called
Respondent, violated Section 8(a)(1) of the Act by interrogations, threats, creating impression
that their union activities were under surveillance 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 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., herein called 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 complaint 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

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.
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
Continued
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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,
Connecticut (the Courant facility).
During the twelve-month period ending April 30, 2012, Respondent 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 within 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 services 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 newspapers
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 granddaughter of Roy Lilledahl) and
has the title of promotions director, where she is involved with marketing, human resources and
supply management of Respondent’s operations. Steve 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
_________________________
is corrected as follows:
Page 30, line 6 “bit” should read “bid”
Page 60, line 23 “Thirteen dollars, fifteen cents” should read “Thirteen dollars, fifty cents”
Page 66, line 4 “talk” should read “take”
Page 81, line 9 “Ramon” should read “Razmik”
Page 178, line 11 “Yes” should read “No”
Page 510, line 19 “research” should read “resources”
Page 531, line 6 “Lubowska” should read “Lubowicka”
4 Steve Lilledahl is also half-owner of the company.
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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
employees whom it hired to replace Pena as site supervisor. Teran was an admitted 2(11)
supervisor of Respondent from January 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. Capitol 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
limited to general supervision of areas to be cleaned.”
The Union has been the collective representative of the Capitol Cleaning employees
employed at the 285 Broad Street facility for many years. That recognition is based on Capitol
Cleaning’s membership in the Hartford Cleaning Contractors Association and authorizations
signed by Capitol Cleaning, authorizing 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 December 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 collective bargaining representative for the Capitol Cleaning employees employed at the
Hartford Courant’s 285 Broad Street facility. The Union did not represent any of Capitol
Cleaning’s employees 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 bids to various companies, including Respondent, for janitorial
services at a number of its business units. The facilities included 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,

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.
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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 contract 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 employees at a salary of $9.00 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
employees.
D. The Applications for Employment by Capitol Cleaning Employees.
In early September of 2011, Wojciech Pirog, field representative 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 performing industrial cleaning at the Hartford Courant facility and that the
person to contact from the Hartford Courant was Bernard 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 Gulotta. 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 Gulotta to provide the information “to our
Service Employees International 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 unconditional application for employment with the newly
contracted cleaning contractor, which we understand will be at the facility
beginning September 30, 2011.
Please advise our collective bargaining representative, Service 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 leaflets
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. During the
leafleting, Gulotta rushed out of the building with a security guard and asked Pirog why the
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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 Cleaning 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 repeated his comments that everything is fine and that the
employees 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 parking 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 Company, 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 unionized 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
contractor. The company has not responded to their requests.
Kurt Westby, Connecticut State Director for SEIU 32BJ, said 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
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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 Washington, 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 directly. 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 applying for work in Hartford. Mason informed Pirog that
Respondent was interested in hiring people and would send him a job application. Mason faxed
Pirog a job application immediately. 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 six 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
Respondent, entitled “Hartford Courant job applications for Custodians.” Along with the email,
he resent the eight completed applications.
The email stated that the eight janitors “would all like to apply 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
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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 Respondent. Madiera called her back a
half-hour later and suggested that evening at 7:00 pm. McSharry agreed to that time and
informed Madiera that she would be interested in interviewing employees Lubowicka, Figueroa,
Hovhannisyan, Zhamkochyan, De Jesus and Korzeniecki. According to McSharry, Respondent
excluded employees Ramon Garcia and Eddie Williams form this process because it had
decided not to consider them for employment because of negative recommendations 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 employees about the meeting.
The meeting was held at 7:00 pm, as scheduled, at the Hartford Courant facility. Present
were Steve Lilledahl, McSharry and employees Lubowicka, Figueroa, Hovhannisyan,
Zhamkochyan 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 Respondent charges less for its services than Capitol
Cleaning and that is why Respondent won the bid. He added that if employees agreed to work
for Respondent, they would be paid $9.00 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. 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

7 The employees had been earning at Capitol Cleaning between $13.00 and $13.80 per
hour and had health insurance and other benefits under the contract between Capitol Cleaning
and the Union.
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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 $9.00 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 Representative
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 number and left a message
stating that all six former Capitol Cleaning employees were interested in accepting jobs with
Respondent. 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 Respondent’s offer of employment. McSharry responded that Respondent was still
looking into its options and would let the employees know of its decision.
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.

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 Lubowicka 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 non-union company. 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.”
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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
organizational campaign at the facility, and a union representative named Gabriel began
speaking to employees as they entered the building about the Union and handing out literature
and union cards to the employees.
On a day during the first week of January 2012, Respondent'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 approached them. He said to the
employees that they “couldn’t talk to him (referring to Gabriel) because he was from the Union.”9
Teran added that if the employees talked to him (Gabriel), 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 recommended 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 previous 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 Gabriel, and Gabriel discussed joining the Union with the employees,
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.
 Promised or give you a raise, a promotion, or additional 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 Union.
 Discriminate or treat employees differently because they support the

9 Rosario further testified that Teran already knew Gabriel because “he is from the Union
and he already knew him.” Rosario did not testify how he became aware that Teran knew that
Gabriel was from the Union.
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Union, including making assignments, 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 gentleman (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 because of that.”
A few minutes later, Cruz and Rosario were in Teran’s office. 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 $12.00 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 harassment. 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.

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.
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H. Respondent’s Hiring Decisions
Respondent presented three witnesses, who testified in regard 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 Tribune 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 facility and were decided in a
conference call with Tribune officials, in which he participated, sometime in November.12
Respondent was awarded the janitorial contract at 285 Broad Street as well as the contract to
clean and maintain the pressroom at that facility, which it had been previously performing.
Capitol Cleaning as the low bidder for the Courant’s Wormley and East Elliott facilities
retained those locations, and Respondent was not successful in its bids to service those
facilities.
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 Capitol 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 November 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 successful 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 pushing 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.

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 November 18.
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Finally, Gulotta testified about “shadowing,” which he described 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 introduced himself and McSharry and informed the
employees that Respondent would be the new contractor, he informed the employees that
Respondent would pay $9.00 per hour with no benefits 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 Respondent.
Lilledahl insisted that he did not offer any jobs to anyone at the meeting but merely
informed the employees of what Respondent 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 $9.00 an
hour and no benefits. Indeed, Lilledahl further conceded that in many of the contracts that
Respondent acquires, it will normally hire the employees previously working at the particular
locations.13
Lilledahl recalled that about a week after the November 8 meeting with the Capitol
Cleaning employees, McSharry received notification from the Capitol Cleaning employees that
all of these employees were interested in working for Respondent. Lilledahl was uncertain and
vague about how the process continued and the ultimate decisions made, testifying that
McSharry was primarily responsible for the subsequent interviews 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 Respondent 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 two or three days, and both concluded that the Capitol

13 Notably, Lilledahl further conceded that none of these prior locations, where Respondent
hired the workforce employed by the prior contractor, involved employees, who had been
represented by a union.
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Cleaning employees 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 Respondent based on a projection of 6.25 FTEs at a salary of
$9.00 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 participated 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 Florida 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 contract.
Therefore, Respondent decided to take care of these matters first and arrange to put the crew
that had been working for Respondent at Tampa to transfer to the Orlando site. This process
required the attention of McSharry and Lilledahl, so it decided to hold off staffing the Hartford
location until it completed 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
operations. 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 start-up issues and to conduct interviews. This was, as McSharry
testified, because “Bernie wanted to start sooner than later.”
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 Ramon 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

14 Craigslist is a website that runs ads for various types of items.
15 Referring to Gulotta’s alleged complaints about these two employees. As I have noted
Continued
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McSharry’s testimony about the interviews is relatively consistent 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 $9.00 per hour with no benefits.
When asked on direct testimony by her counsel why Respondent didn’t hire them at the
time, she explained Respondent’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 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 confidence in your people.
McSharry further testified Respondent had received a “stellar” response from the ads
that it placed on craigslist on November 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 hiring market in Hartford was
_________________________
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.
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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 Respondent had spent a few days “shadowing the employees” and
concluded that they were moving too “slow” and that Respondent concluded based on these
observations that the employees “were not going to be able to cut it with what they were
showing 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 three days,
Wednesday, Thursday and Friday, December 6-8, before the job started on Monday, 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 employees 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 Respondent decided to hire
while rejecting the former Capitol Cleaning employees.
McSharry stated further that Respondent again received significant 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 numerous 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 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 “shadowed” the five employees once again that evening and
concluded 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 moving 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.

16 All except Daniel Korzeniecki, who worked as a day porter.
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.
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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
experience 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 being 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 December 9 email included
supervisor Pena, Rosario, Buhanji and applicants Paige James, Heriberto Ramirez and Juan
Cruz. Cruz and Ramirez were, according to McSharry, both recommended 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 Rosario,
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 available
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 employed 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 Rosario’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 also recommended by
Rosario. According to McSharry, Ramirez was very experienced in the janitorial field, and

18 His job application listed his previous jobs as picking fruit and delivering pizza.
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Respondent wanted to hire him as a full-time day porter.19
Paige James was interviewed and hired on December 9. According to McSharry, she
answered Respondent’s craigslist ad and had cleaning experience. McSharry stated that James
and her sister-in-aw 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
Martinez and Wesley Mendez.
McSharry testified that Teran had 14 years of experience in the janitorial field,21 and he
was interviewed and hired on December 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. However, 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 $9.00 per hour.
Further, he had done some janitorial work before.23
Christopher Martinez was also interviewed and hired on December 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 maintenance 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 Respondent.

19 I note, however, that Ramirez’s job application did not list any experience 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 bathrooms before moving to Puerto Rico.
24 It listed a previous job at Price Rite as a cashier, produce and carts and at a bug
company.
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McSharry further testified that of its initial crew of 8 employees, 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 (11:00 pm to 7:00 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 Respondent’s initial crew. McSharry also testified that Escobar was
extremely motivated and really wanted the night shift, graveyard position, which is difficult to
fill.25
Subsequent to the initial start date, the record establishes, and McSharry concedes, that
Respondent experienced a significant 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 employees of Respondent.
McSharry testified that Respondent did not consider for hire or hired any of the former
Capitol Cleaning employees for these openings for the same reasons that she testified that it did
not have them initially. These new employees were hired on various dates in January through
April of 2012.
The bulk of these employees were hired by Respondent’s supervisors, 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 application 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 Systems in Windsor, Connecticut but does not reflect what her
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, according to the document submitted by Respondent, resigned
on February 5, 2012.
Ricardo Lopez was hired on January 20, 2012. His job application listed that he had
been employed by the Hartford Hospital 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

25 The resume submitted by Escobar reflects that she had previous experience as a
housekeeper, cleaning and maintaining rooms, removing trash, sweeping and mopping for both
a nursing home and hotel.
26 A document submitted by Respondent reflected that she was terminated on April 15,
2012.
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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 Respondent on
January 8, 2012. There were no job applications for these individuals in the record.
As detailed above, Madelyn Castro, who testified in this proceeding, was hired on
January 8, 2012. She was recommended by relatives of hers, who worked for Respondent, and
was interviewed 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 Capitol Cleaning employees lacked such flexibility, in her
direct testimony, backed off that assertion when pressed in questioning by the undersigned and
admitted that this alleged flexibility was not a reason why Respondent did not hire the former
Capitol Cleaning 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 employees 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 Respondent’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 November 8 meeting, including Lubowicka.
However, the record reflects based on Lubowicka’s unrefuted 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
company (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 normally 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 Gulotta’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, December 10 at 6:46 pm. This email is
as follows:
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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 evening 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 supporting documents in
connection with the investigation. In these documents, Respondent explained its reasons for not
hiring any of Capitol cleaning employees and for hiring others instead.
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
advised 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 received notification that three of
the individuals were willing to work at $9.00 per hour.27
However, by that time, according to the paper, Respondent had run its first
advertisement in craigslist, had received communications 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 potential 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
reduced the number of man hours to equal 7.5 full-time positions while previously Capitol
Cleaning utilized 8-9 full-time employees.

27 These three were, according to the document, were Lubowicka, Hovhannisyan and
Zhamkochyan.
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It goes on to state that Respondent filled its crew in during interviews conducted on
December 8 through 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 janitor 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 candidates chosen were a better fit for the work
and for Pressroom's demands. The Capitol employees were not happy with the
compensation. Pressroom 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. 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 reason 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 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 these 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 important.
Most significantly, there is not a single word in this document 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 employees played any role in
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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
applicants that Respondent paid employees $9.00 per hour with no benefits, also told them that
Respondent is non-union, 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 employees that Respondent was a non-union company.
I find in agreement with Charging Party and General Counsel that the comments made
by Lilledahl to the prospective employees were coercive and unlawful, even crediting the
version of Respondent's witnesses that he merely stated that Respondent was non-union.
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
prospective 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 obligation the employer was
free to operate on a non-union basis. The Board observed as follows:
The Charging Parties contend that the judge misinterpreted 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 employees
because they are union members or to avoid being required to recognize the
union. Under Burns, the purchasing 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 represented 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 non-union 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
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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 non-union, it indicated that it intends to discriminate against the
predecessor’s employees to insure its non-union 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 non-union, 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 “non-union” company
and “intended to stay that way,” violative of Section 8(a)(1) of the Act); Galloway School Lines,
321 NLRB 1422, 1432 (1996) (statement by employer that company 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 non-union shop, unlawful citing Kessel Food, supra);
Williams Enterprises, 301 NLRB 167 (1991), enf. in pert. part 956 F.2d 1226, 1234 (DC 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 non-union and implicitly conveyed a message to those individuals that
“any conduct which is not consistent with that stance may jeopardize their employment
possibilities or security,” 301 NLRB 167-168); Worcester Mfg., 306 NLRB 218 (1992) (informing
employees that it expects to operate non-union); 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 starting up as a non-union 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 enforcement 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 non-union 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 significantly distinguishable from the
instant case in several respects. It is noted that the court therein relied on the fact that the
company 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
statements about the Union and the Union’s future were made in unsolicited comments, not in

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 contingent on
abstaining from union representation.” 233 F.3d at 1181.
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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 employed 200 non-union employees, and if there were only one
bargaining unit, 20 union employees would not change Brown & Root‘s non-union 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 representative, in response to a question from a predecessor’s employee,
stated that the employer was a “non-union company.” 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 pre-existing
operation as a non-union 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 refusal 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, frequent transfers of employees between job sites from building to
building30 and uniform personnel and benefits to each location. Further, there was no on-site
supervisor so that all employees were commonly supervised out of the central office. Based on
such evidence, the Board concluded that employees at the particular 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 non-union 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
operate the Richmond plant as a non-union plant” was coercive, as I detailed above. Notably,
that case was appealed to the DC Circuit, where the Court affirmed the Board’s finding of a
violation 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”

29 Lilledahl told the Capitol Cleaning employees that Respondent is non-union, does not
work with unions, does not deal with unions and does not want a union at all.
30 Even though no transfers were made to the location in question. The employer testified
that it did not make anyone such transfers because 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 workforce at the building.
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on which it would base its statement that it would remain non-union, 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).
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 employment 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 intention 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 employer knew,
when it absorbed seven of the predecessor’s eight employees into its workforce
of approximately 175 employees, 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 decision, whether a majority of its production staff
would be former 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 statements 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 non-union was not coercive since the hiring of the predecessor’s
employees would not change Brown & Root’s non-union 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 Cleaning 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 Respondent does have facilities throughout the United Sates, no
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evidence 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 non-union but included additional coercive statements of threats of futility. Commercial
Erectors, supra, 343 NLRB at 942 (it does not work with unions, it does not deal with unions).
Accordingly, based on the foregoing analysis and precedent, I conclude that
Respondent’s comments by Lilledahl on November 8 were coercive and violative of Section
8(a)(1) of the Act. Kessel Food, supra; Smoke House, supra; Williams Enterprises, 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 walking 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. Rosario 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 approached them and said that they
could not talk to “him” (referring 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. Additionally,
Teran informed Cruz and Rosario that the crew that used to work there had the Union and that
is why they weren’t working at the Hartford Courant.
General Counsel contends, and I agree, that Teran’s statement to employees that they
would be fired if they continued to talk to the Union is a classic and blatant unlawful threat to
discharge 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 Cleaning 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 trying to organize for the union,
unlawful threat to discharge employees because of their union activity).
The complaint alleges, and the General Counsel contends, that Teran created the
impression of surveillance that its employees’ union activities were under surveillance by
Teran’s comments and conduct. Stevens Creek Chrysler Jeep Dodge, 357 NLRB #57 slip op at
6 (2011), affirming previous decision issued by two-member Board, 353 NLRB 1294 (2009)
(asking employees during a shop meeting who paid for pizza at the previously held union
meeting).
I do not agree. Here, Teran observed Cruz and Rosario talking to the union
representative and obtaining union cards, looking 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
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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 constituted an unlawful giving the impression of surveillance of
employees’ union activities is not correct. The Board’s test for determining whether an employer
has created an unlawful impression of surveillance is whether “under all the relevant
circumstances 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
surveillance. 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 supervisor’s comments, detailing knowledge of union’s success on
obtaining cards. Board reverses judge and notes that although supervisors comment that 80%
of employees signed cards indicated awareness of union’s success, it was based on open
conducted card drive and “reasonably suggested that Respondent had observed this open
activity on its premises”); Michigan Roads Maintenance Co., 344 NLRB 617 at fn. 4 (2005)
(dismissing impression of surveillance allegation, where employer’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 impression 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 surveillance.
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
flyers to the employees. As the employees were entering the building, 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 office and asked them to tell him
what the union representative had given them. Rosario showed Teran the union card and union
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.
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His questioning of the employees about why they were talking 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 employees 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 activities, which are both independently
unlawful threats to discharge employees.32 Swardson Painting, supra.
On February 9, Rosario complained to Teran about not receiving a raise and observed
that by law he should be getting paid $12 per hour. Teran responded by commenting that
Rosario 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 contractor, 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
Security Services, 406 U.S. 272 (1972); Howard Johnson's v. Detroit Local Joint Executive
Board, 417 U.S. 249 (1974). Some of the factors relied on by the Board in establishing such a
violation 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 staffing 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 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 refusals 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 relevant to the announced positions.

32 The fact that former Capitol Cleaning employees were not discharged 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
Respondent is a clear threat to Respondent’s current employees that union activities on their
part could result in a similar loss of their employment.
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.
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Subsequent to FES, some Board cases continued to apply a Wright Line analysis to
refusals to hire in successorship contexts34 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 context, essentially because these matters are
essentially assumed or not in dispute in such cases. Planned Building Services, supra, 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 antiunion 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
predecessor’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 employees 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
decision not to hire the six discriminatees.
Here, I have found that at the November 8 “interview” of the discriminatee-applicants,
Lilledahl informed those applicants that Respondent was a non-union 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
observed 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
unlawful condition of employment.” Advanced Stretchforming, supra, 323 NLRB at 530
(statement by general manager at interview that they will be a non-union facility); W&M
Properties of Connecticut, 348 NLRB 162, 163 (2006) (informing employees that if they accept a
job it would be non-union, thereby, conditions their employment on refraining from union
activities, thereby, violating 8(a)(1) of the Act); The Concrete Company, 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

34 Waterbury Hotel Management LLC, 333 NLRB 482 (2001); Jennifer Matthew Nursing &
Rehabilitation, 332 NLRB 300 (2000).
35 The Concrete Company, 336 NLRB 1311, 1311-1312 (2001).
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interview that company was going to be a non-union mine held to be evidence 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 non-union 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 supervisor 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 Hartford 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 facility. On several
occasions during January of 2012, Teran confronted 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 Section 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. 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 employees, 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
evidence” 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 explanation 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 inference that Teran was
fabricating. I note further in this connection 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 circumstances, 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 motivation 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
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Sierra McSharry conceded that it would have been easier if Respondent 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 motivation. Planned Building Services, supra,
347 NLRB at 708 (hiring practice contrary to prior practice of offering jobs to incumbent
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 existing employees); Waterbury Hotel Management
LLC, 333 NLRB 482, 550 (2001) (deviation from employer’ normal practice 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 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 Region.
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 informed 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 $9.00 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 Respondent 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

36 These employees had from 5-15 years of experience working at the location.
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testified further that from the events of the meeting, such as the “body language” of the
employees and their comments about Respondent,37 it was his impression that these
employees did not want to work for Respondent.
Lilledahl also conceded that Respondent became aware within 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 Respondent's decision not to
acknowledge the employees’ acceptance 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
counsel, he testified that Respondent decided to continue the interviewing 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 employees” for two to three days and concluded that the Capitol
Cleaning 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 examination.
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 working for them at $9.00 per hour with no benefits, she was
asked by Respondent's counsel why Respondent did not hire the employees 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, Respondent’s brief fell back on the
alleged “shadowing” as the sole reason for Respondent’s decision not to hire any of the

37 “We must not be much of a company if that’s all we can afford to pay.”
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discriminatees.
Significantly, in this regard, McSharry abandoned her testimony 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 Respondent was made at a time
in early December, when it was engaging in a frenzied hiring effort to recruit, screen and train a
new workforce in order to meet the pressure imposed by Gulotta 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 obvious that Respondent’s
decision to “ignore the obvious choice” of hiring an experienced and available workforce
supports 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.” Neither of Respondent’s witnesses presented any specific testimony 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 conclusionary testimony is hardly sufficient to
meet Respondent’s burden of proof. Moreover, if it was so important for Respondent 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 performance rather
them wait until a few days before it made its decision in mid-December to allegedly “shadow”
them? Respondent 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 Gulotta’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 contractor to see how the prior contractor operated, where various
items are stored and other matters. This description of shadowing’s purpose was, in fact,
conceded by Respondent’s own witnesses. Thus, I find that shadowing is not done for the
purpose of making decisions or to evaluate the performance of the prior contractor’s employees
but to simply see how they conducted its operation.
The emails between Respondent and Gulotta serve to confirm this fact as well as
contradicting McSharry’s testimony as to the frequency and timing of the “shadowing.” Thus, on
Friday afternoon on December 9, 2011, McSharry emailed Gulotta, giving him an update on
Respondent's progress. She informed 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 Respondent was fully staffed with a crew of 8, plus Joe (the supervisor). She

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.
39 According to McSharry, this number referred to five employees, plus the site supervisor,
whom it had hired.
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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 shadowing was not to assess
performance of Capitol Cleaning 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 shadowing 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
shadowed 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,
Respondent presented no evidence at all that it ever shadowed or observed Korzeniecki, so it,
therefore, could not have considered him to be “slow” or otherwise incapable of performing the
work required by Respondent.
Also, McSharry insisted that she shadowed all five employees (excluding Korzeniecki),
which included Lubowicka. However, 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
Respondent started its operations with new employees. Accordingly, this finding brings the
number of employees that Respondent could not have, and did not, shadow to two and further
undermines the validity of Respondent’s defense that its decision not to hire the discriminatees
was based on the “shadowing.”
Finally, and perhaps most importantly, Respondent’s attorney submitted a position paper
to the Region during the investigation, in which it detailed its reasons for not hiring the former
Capitol Cleaning employees. This document provided several reasons for its decision. They
included that the employees were rude and upset at the meeting, they were disgusted with the
offer of $9.00 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 Respondent was notified that the
employees were willing to work for $9.00 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 “flexibility 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 employees and all exhibited an eagerness to
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work at $9.00 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 former 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 damaging to Respondent’s attempt to meet its burden of proof. Position
papers submitted by attorneys for Respondent are admissible as admissions and have
frequently been considered significant, where, as here, it contradicts record testimony of
Respondent’s witnesses as to the reasons for the action taken by it. Planned Building Service,
supra; Black Entertainment Television, 324 NLRB 1161 (1997); Steve Aloi Ford, 179 NLRB 229
fn. 3, 230 (1969).
The above evidence demonstrates that Respondent had advanced shifting reasons for
its decision not to hire the incumbent employees, which substantially detracts from the validity of
its defense and demonstrates the pretextual nature of its explanation for its actions. Planned
Building Service, supra; Douglas Foods, 330 NLRB 821 (2000).
Where, as here, an employer has vacillated in offering a consistent 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 Television, supra; Sound One
Corp., 317 NLRB 854, 858 (1995).
I find such an inference is clearly warranted here and conclude that the real reason for
Respondent’s conduct in not hiring 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 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 business as the predecessor employer and (2) whether a
majority of the new employer’s work force in an appropriate unit are former 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 employer conducts essentially
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the same business as the predecessor employer is whether the similarities between the two
operations 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 engaged in essentially the same
business as Capitol Cleaning (cleaning the offices at the Hartford Courant) and the employees
were performing the same jobs and performing the same functions as the Capitol Cleaning
employees (dusting, sweeping, 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 expected to perform more duties within a shorter timeframe
as compared to Capitol Cleaning’s workforce. Further, Respondent 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 Cleaning and that there was a substantial continuity between the enterprises. 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); Hydrolines, supra, 305 NLRB 422-
423; Commercial Forgings, 315 NLRB 162, 165 (1994).
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,
particularly since it involves the same type of industry (janitorial contractor at a building).
The Court held:
In particular, the seven factors which we have identified 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 remained committed to the
same type and nature of business as Pritchard operated and has merely

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.
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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 offered.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 employer. 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 “successor employer” because the difference
between part-time and full-time employees constitutes a substantial difference in
the enterprise. We find this argument to be meritless.
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 previously
provided by Pritchard. To allow a “successor employer” to escape its duty to
bargain notwithstanding the continuation 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 “successor employer.”
Systems fundamentally misunderstands the nature of being a “successor
employer.” In order to prevent the label, 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 employment.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 deal with it as
the bargaining representative.” In deciding this issue the Board
must examine the “totality of the circumstances,”
(Emphasis added) (citations omitted).
The indicia which we have recognized to conclude that Systems
continued the existence of the Pritchard enterprise, 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 because 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
reduction 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 “successor employer's” obligation to negotiate.
Therefore, applying the seven factor analysis to the instant record leads
to conclude that both of the criteria leading to successorship have been satisfied,
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and that accordingly, Systems must be deemed a successor to Pritchard. As
such, Systems became liable under the Act for its discriminatory conduct.
10 Only one of the indicia was not found in that Systems employed different
supervisors than those employed by Pritchard. The second indicia, “whether the
new employer 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 distinguished 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 Seventh 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 employer continued with workforce of
only 50 workers as compared to pre-purchase complement of 500 workers); Commercial
Forgings, 315 NLRB 162, 165 (1994), enf. 77 F.3d 482 (6th Cir. 1996) (successorship
established where changes eliminated most of predecessor’s non-unit jobs, but jobs of unit
employees not altered); Planned Building Services, supra, 347 NLRB at 674, fn. 17 (successor
bargaining obligation where new employer planned to employ a smaller workforce consisting
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 successor’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 relationship 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 operation, 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 disturbed, 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 appropriate. Mammoth Coal, supra;
Mayfield Holiday Inn, 335 NLRB 38, 39 (2001) (historical unit consisted of housekeeping
employees at two hotels; each hotel was sold to separate new owners; separate unit of
housekeeping employees at each hotel found to be historically appropriate units of
housekeeping employees, both new employers found to be successors and ordered to bargain
with the union). See also Planned Building Services, supra at 717-718 (single location for each
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building, where employees performed unit work, found to be appropriate units).
Respondent has adduced no evidence nor has it made any arguments or contentions
that the historically recognized unit is repugnant to the Act or that it is no longer appropriate. I,
therefore, 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 discrimination against them.
Mammoth Coal, supra at 728; Planned Building Services, supra at 674; New Concept Solutions,
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 presumed that these employees continued to support the
Union and would have continued to work for Respondent but for the discrimination. Thus, the
second prong for successorship has been met, and Respondent is the legal successor to
Capitol Cleaning’s operation at the facility. Mammoth Coal, supra at 729; Planned Building
Services, supra at 674; New Concept Solutions, supra, 349 NLRB at 1157; Love’s Barbeque
Restaurant, 245 NLRB 78, 82 (1979), enfd. in relevant part sub nom. Kallman v. NLRB, 640
F.2d 1094 (9th Cir. 1981).
Respondent also argues that it cannot be found to be a successor to Capitol Cleaning
since the Union never made a demand 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 bargaining futile. Mammoth Coal, supra at 729; Planned Building Services, supra at
718; Smith and 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 generally 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, Respondent 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 employment that it intends to operate non-union 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;
Stretchforming, supra, 323 NLRB at 530; Smoke House Restaurant, 347 NLRB 192, 204-205
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(2006); Concrete Co., supra, 336 NLRB at 1311. Accordingly, Respondent was required to
follow 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 unilaterally 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 informing employees that it
intends to operate its business as a non-union entity and/or that it is a non-union business,
threatening its employees with discharge because of their support for or activities on behalf of
the Union and by coercively interrogating 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
conditions of employment of its employees in the unit without prior notification and bargaining
with the Union.
7. The aforesaid unfair labor practices affect commerce within the meaning of Section
2(6) and (7) of the Act.
Remedy
Having found that the Respondent had engaged in certain unfair 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
positions for which they would have been hired, absent the Respondent’s unlawful

41 The discriminatees are Razmik Hovhannisyan, Epifania De Jesus, Mariana Lubowicka,
Daniel Korzeniecki, Anahit Zhamkochyan and Emilio Figueroa.
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discrimination, or, if those positions no longer exist, to substantially equivalent positions without
prejudice 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 practiced 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 Kentucky River Medical Center, 356 NLRB No. 8 (2010). The Respondent
shall also be required to expunge from its files any reference to the unlawful refusal to hire and
to notify the discriminatees in writing that this has been done.
Respondent shall file a report with the Social Security Administration 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 No. 44 (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 conditions of employment, and if
an agreement is reached reduce the agreement to a signed written contract. Additionally, the
Respondent shall on request of the Union, rescind any departures from terms of employment
that existed before the Respondent's takeover and retroactively restore preexisting terms and
conditions of employment, including wage rates and contributions to benefit funds, that would
have been paid, absent the Respondent'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 prescribed in Kentucky River Medical Center, supra. The Respondent
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. 2v(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 Horizons, supra,
compounded daily as prescribed in Kentucky River Medical Center, supra.
The Respondent’s backpay liability for both its unlawful discrimination 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 compliance 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 existed 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

42 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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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 representatives of the Union.
(c) Informing employees or applicants for employment that it is a non-union 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 engaging in these activities.
(e) Refusing to recognize and bargain in good faith with Service Employees International
Union, Local 32BJ as the exclusive 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 employees, 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 effectuate 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 Section 9(a) of the Act and that it will bargain with the Union
concerning 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 welfare and pension contributions, and other benefits, until it
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negotiates in good faith with the Union to agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy section 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 employment to the following former unit
employees of the predecessor, Capitol Cleaning, who would have been employed by
Respondent 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 suffered by reason of the Respondent’s unlawful refusal to hire
them, in the manner set forth in the remedy section of the decision.
(g) Within 14 days from the date of this Order, remove from its files any reference to the
unlawful refusal to hire the employees named in the paragraph 2(e) and, 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.
(h) Preserve and, within 14 days of a request, or such additional time as the Regional
Director may allow for good cause shown, provide at a reasonable place 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
analyze 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 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
conspicuous places including all places where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices shall be distributed electronically, such as
by email, 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 altered, defaced, or covered
by any other material. If the Respondent has gone out of business or closed the facility involved
in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employees employed by the Respondent at any
time since December 12, 2011.

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 National Labor Relations Board” shall read “Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
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(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.
Dated, Washington, D.C. March 29, 2013
____________________
Steven Fish,
Administrative Law Judge
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to
post and obey this Notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities
WE WILL NOT coercively interrogate our employees concerning their membership in or activities
on behalf of Service Employees International Union, Local 32BJ (the Union).
WE WILL NOT threaten our employees with discharge if they engage in activities in support of
the Union or if they speak to representatives of the Union.
WE WILL NOT inform our employees or applicants for employment that we are a non-union
business or that we intend to operate as a non-union 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 employees 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 representative of our 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
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 employees 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 employees in the
exercise of the rights guaranteed them 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 employees 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 agreement.
WE WILL, on request of the Union, rescind any departures from terms and conditions of
employment that existed immediately prior to the our takeover of predecessor Capitol Cleaning’s
operation, retroactively restoring preexisting terms and conditions of employment, including 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 takeover of predecessor Capitol
Cleaning’s operation, subject to our demonstrating in a compliance hearing that had we lawfully
bargained with the Union, we would have, at some identifiable time, lawfully imposed less favorable terms
than those that had existed under our predecessor.
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 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
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, subject to our demonstrating in a compliance hearing that, had we lawfully
bargained with the Union, we would have, at some identifiable time, lawfully imposed less favorable terms
than those that had exited under our predecessor.
WE WILL file a report with the Social Security Administration 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 refusal 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
(Employer)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor Relations Act.
It conducts secret-ballot elections to determine whether employees want union representation and it investigates and remedies
unfair labor practices by employers and unions. To find out more about your rights under the Act and how to file a charge or election
petition, you may speak confidentially to any agent with the Board’s Regional Office set forth below. You may also obtain information
from the Board’s website: www.nlrb.gov.
A.A Ribicoff Federal Building and Courthouse
450 Main Street, 4th Floor
Hartford, Connecticut 06103-3022
Hours: 8:30 a.m. to 5 p.m.
860-240-3522.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST
NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS
NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, 860-240-3006