AM Property Holding Corp.

National Labor Relations Board - Board Decisions

Aug 30, 2007

350 N.L.R.B. 998 (N.L.R.B. 2007)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
350 NLRB No. 80
998
AM Property Holding Corp., Maiden 80/90 NY LLC
and Media Technology Centers, LLC, a single
employer, a joint employer with Planned Build-
ing Services, Inc. and Local 32BJ, Service Em-
ployees International Union.1 and United Work-
ers of America.
AM Property Holding Corp., Maiden 80/90 NY LLC
and Media Technology Centers, LLC, a single
employer, a joint employer with Servco Indus-
tries, Inc. and Local 32BJ, Service Employees
International Union. Cases 2–CA–33146-1, 2–
CA–33308-1, 2–CA–33558-1, 2–CA–33864-1, and
2–CA–34018–1
August 30, 2007
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS
LIEBMAN AND KIRSANOW
This case arose in the context of Respondent AM
Property Holding Corporation’s2 (AM) purchase of an
office building at 80-90 Maiden Lane (80 Maiden Lane)
in the Wall Street section of New York City. Prior to the
purchase, AM had determined that it would not hire the
employees of the building’s incumbent cleaning contrac-
tor, who were represented by Local 32BJ, Service Em-
ployees International Union (32BJ). Instead, AM en-
tered into a contract with Respondent Planned Building
Services, Inc. (PBS) to provide maintenance services for
the building.
Shortly after receiving the cleaning contract, PBS rec-
ognized the United Workers of America (UWA) as the
bargaining representative of its employees at 80 Maiden
Lane.
Approximately 1 year later, AM replaced PBS with
Respondent Servco Industries, Inc. (Servco) as the clean-
ing contractor. At no time relevant to these proceedings
did any of the Respondents recognize Local 32BJ as the
bargaining representative of the employees at 80 Maiden
Lane.
The General Counsel alleges that the Respondents
committed numerous violations of the Act in an effort to
avoid a bargaining obligation with 32BJ. The judge
found that (1) AM and PBS, and subsequently AM and
Servco, were joint employers of the building’s mainte-
nance employees; (2) AM and PBS were joint successors
of the predecessor cleaning contractor, and AM and

1 We have amended the caption to reflect the disaffiliation of the
Service Employees International Union from the AFL–CIO on July 25,
2005.
2 It is undisputed that AM Property Holding Corporation, Maiden
80/90 NY LLC, and Media Technology Centers, LLC constitute a
single employer within the meaning of the Act.
Servco were joint successors of AM and PBS; (3) the
Respondents violated Section 8(a)(3) and (1) by refusing
to hire employees represented by Local 32BJ; (4) the
Respondents violated Section 8(a)(5) and (1) by refusing
to recognize and bargain with 32BJ; (5) PBS violated
Section 8(a)(2) and (1) by recognizing the UWA as the
collective-bargaining representative of its employees at
80 Maiden Lane; and (6) the Respondents, as joint em-
ployers respectively, were jointly and severally liable for
various violations of Section 8(a)(1) and (2) of the Act.3
For reasons discussed below, we reverse the judge’s
finding that a joint employer relationship existed be-
tween AM and PBS, or between AM and Servco. We
also reverse the judge’s findings that the Respondents
were joint successors as alleged, that they had an obliga-
tion to recognize and bargain with 32BJ, and that they
violated Section 8(a)(5) and (1) by refusing to bargain
with that Union. Further, we reverse the judge’s finding
that PBS violated Section 8(a)(2) and (1) by recognizing
the UWA at 80 Maiden Lane. Finally, we find that each
Respondent is solely responsible for its own violations of
the Act.4

3 On May 13, 2003, Administrative Law Judge Steven Davis issued
the attached decision. The General Counsel and Respondent Planned
Building Services, Inc. filed exceptions, supporting briefs, answering
briefs, and reply briefs. Respondents AM Property Holding Corpora-
tion and Servco Industries, Inc. filed exceptions, supporting briefs, and
reply briefs. The Charging Party filed cross exceptions and an answer-
ing brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and record in light of the ex-
ceptions and briefs and has decided to affirm the judge’s rulings, find-
ings, and conclusions only to the extent consistent with this Decision
and Order.
The Respondents have excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all of the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
4 We agree with the judge, for reasons stated in his decision, that Re-
spondent PBS, by its counsel, violated Sec. 8(a)(1) and (4) by threaten-
ing a witness during the hearing that he would “have to get an investi-
gator” and “find out whether she’s here in this country illegally.” We
find no merit in PBS’s argument that the statements were not coercive
because counsel was addressing the judge and not the witness.
Whether counsel was addressing the witness directly is irrelevant, as
the statements were made in the presence of the witness and were likely
to influence her testimony. See Iowa Beef Processors, Inc., 226 NLRB
1372, 1372–1373 (1976), enfd. in relevant part 567 F.2d 791, 796 (8th
Cir. 1977).
We also reject PBS’s contention that there was no violation because
the witness testified through an interpreter and there is no evidence that
she understood the statement. Although the witness testified in Span-
ish, the record shows that she does speak and understand some English,
AM PROPERTY HOLDING CORP. 999
I. FACTS
The relevant facts are set forth more fully in the
judge’s decision. On April 25, 2000, AM purchased 80
Maiden Lane from the Witkoff Group. That same day,
AM entered into a contract with PBS to provide mainte-
nance services for the building. In addition to contract-
ing with PBS for maintenance services, AM directly em-
ployed three engineers, two day porters, and an elevator
operator.5
Prior to the sale, maintenance services at the building
had been provided by Clean-Right, Witkoff’s in-house
cleaning contractor. Witkoff was a signatory to a multi-
employer collective-bargaining agreement with Local
32BJ, and the Clean-Right employees were represented
by 32BJ pursuant to that agreement. The agreement pro-
vided that if the employees were not offered employment
upon sale of the building, they were entitled to 6 months
of severance pay. AM had determined, prior to the clos-
ing, that it would not hire the Clean-Right employees.
Consequently, as a condition of the sale, AM agreed to
indemnify Witkoff for the cost of severance pay and
placed the money in an escrow account.
On the day that AM purchased the building, the Clean-
Right employees were told that the building had been
sold, that the new contractor was bringing in its own em-
ployees, and that there were no applications for them. A
number of Clean-Right employees subsequently sought
employment at the building with PBS, and eight employ-
ees were interviewed in May. The employees were told
that there was no available work at that time, but that
PBS was in the process of obtaining other contracts and
would contact them when positions became available.
Some time in July, PBS offered employment to all eight
employees; two were offered positions at 80 Maiden
Lane, and the rest were offered positions in various other
buildings for which PBS had cleaning contracts. PBS
hired 15 employees at 80 Maiden Lane before making
job offers to the Clean-Right employees.

and there is no indication that she was not able to understand the com-
ment.
32BJ has excepted to the judge’s refusal to grant its posttrial motion
to reopen the record to allow the admission of certain evidence ob-
tained by the United States Attorney’s Office during a racketeering
investigation. We agree with the judge that the evidence is not material
to the issues in this case and affirm his denial of the motion.
We also affirm the judge’s denial of 32BJ’s request to admit into
evidence a transcript of PBS official Michael Francis’ testimony in a
prior Board proceeding, which was offered for the purpose of establish-
ing antiunion animus on the part of PBS. The admission of the tran-
script is unnecessary, as the Board may directly take notice of its find-
ings of animus in the prior case.
5 AM retained the building’s engineers, who had been employed at
80 Maiden Lane for a number of years. AM transferred workers from
its other buildings to fill the elevator operator and day porter positions.
On May 11, 2000, PBS received notice from the UWA
that the Union had obtained a majority of authorization
cards at 80 Maiden Lane and that it was requesting rec-
ognition as the bargaining representative of PBS em-
ployees at that site. The UWA and PBS then entered into
a collective-bargaining agreement effective from May 1,
2000, through April 30, 2003. The agreement contained
a dues-checkoff provision and a union-security clause.
Less than a year later, on February 15, 2001, the UWA
disclaimed interest in representing the employees.
On April 23, 2001, almost all of the PBS employees at
Maiden Lane went on strike. On May 15, 2001, AM
informed PBS that it was terminating the service contract
as of June 15 for economic reasons. AM then contracted
with Servco to replace PBS.
On June 14, having heard rumors that PBS had lost the
contract, a group of the striking employees entered the
building and spoke to AM Night Supervisor Dennis
Henry.6 Henry told the employees that a new company
was coming in and that it was bringing its own employ-
ees. When employees suggested that Henry could help
them get jobs with the new company, he replied that
“they don’t want anyone from the strike.” Additionally,
AM BuildingManager Jack Constantine told the employ-
ees he could not help them because they had made trou-
ble and had not listened when they were told to go back
to work.
Servco began cleaning the building the next day. Al-
though Servco brought in many of its own workers, it
provided employment applications to all PBS employees
who were not on strike. Servco Sales Manager Mark
Giacoia told the PBS employees that it was not certain
that Servco would hire them, and that he would have to
wait and see how it went with his workers. He also
warned employees that they would be fired on the spot if
they talked to the Union. Servco hired eight of the for-
mer PBS employees, none of whom had participated in
the strike.
II. THE ALLEGED JOINT EMPLOYER RELATIONSHIPS
The Board will find that a joint employer relationship
exists between two or more separate business entities
where those entities “share or codetermine those matters
governing the essential terms and conditions of employ-
ment.” Laerco Transportation & Warehouse, 269 NLRB
324, 325 (1984) (citing cases). To establish this relation-
ship, there must be evidence that one employer “mean-
ingfully affects matters relating to the employment rela-

6 Henry was referred to by the parties and the witnesses as a supervi-
sor; however, the judge concluded that he is not a supervisor within the
meaning of Sec. 2(11) of the Act. The parties have not excepted to the
judge’s finding.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1000
tionship such as hiring, firing, discipline, supervision and
direction” of the other employer’s employees. Id. The
question of joint employer status turns on the facts of
each particular case. Southern California Gas Co., 302
NLRB 456, 461 (1991).
A. AM and PBS
The judge found that AM and PBS were joint employ-
ers because he found that AM exercised control over the
hiring and firing of PBS employees at 80 Maiden Lane,
and also directed their work. As discussed below, the
evidence does not support the judge’s findings.
1. Hiring and firing authority
In finding that AM exercised control over the hiring
and firing of PBS employees at 80 Maiden Lane, the
judge relied on the following: (1) a provision in AM’s
contract with PBS that subjected PBS hires to initial ap-
proval by AM; (2) AM’s alleged refusal to allow PBS
applicant Zoila Gonzalez to work in the building; (3) AM
official Jack Constantine’s statements to former Clean-
Right employees regarding employment with PBS; (4)
Constantine’s statement to PBS employee Jorge Cea that
Cea would no longer work in the building; (5) AM’s role
in PBS’s hiring of Dennis Henry and in the determina-
tion of Henry’s wages and benefits; and (6) AM’s later
transfer of Henry to its payroll. Contrary to the judge,
we do not find that this evidence establishes that AM
exercised control over PBS’s hiring and firing decisions.
First, we find that the contractual provision giving AM
the right to approve PBS hires, standing alone, is insuffi-
cient to show the existence of a joint employer relation-
ship. In assessing whether a joint employer relationship
exists, the Board does not rely merely on the existence of
such contractual provisions, but rather looks to the actual
practice of the parties. See TLI, 271 NLRB 798, 798–
799 (1984), enfd. mem. 772 F.2d 894 (3d Cir. 1985)
(employer’s actual role in supervising and directing em-
ployees insufficient to establish joint employer relation-
ship despite provision in lease agreement that employer
would maintain “operational control, direction, and su-
pervision” of employees). See also Goodyear Tire &
Rubber Co., 312 NLRB 674, 677 (1993).
Second, we disagree with the judge’s finding that AM
exercised its contractual right of approval by rejecting
Zoila Gonzalez as a PBS employee. The evidence shows
that when Gonzalez first reported for work at 80 Maiden
Lane, Dennis Henry informed her that she would have to
mop floors as part of her duties. Gonzalez told Henry she
had medical problems that prevented her from mopping.
Henry then went into the building manager’s office, and
when he came out he told Gonzalez that she could not
work there if she did not mop. Based on this evidence,
the judge inferred that AM’s building manager or his
designee told Henry that Gonzalez could not have the job
if she refused to mop. However, as the judge conceded,
there is no evidence concerning whom, if anyone, Henry
spoke when he went into the office. Because there is no
evidence that an AM official vetoed Gonzalez’ hire, we
reverse the judge’s finding that AM exercised its contrac-
tual right of approval.
Third, we do not find that Constantine’s statements to
the former Clean-Right employees regarding employ-
ment with PBS demonstrate that AM was involved in
PBS’s hiring decisions. On the day after AM bought the
building, the former Clean-Right employees returned and
told Constantine that they wanted to apply for jobs.
Constantine informed them that PBS was the new clean-
ing contractor and that were no positions available. He
then took their names, addresses, and phone numbers,
and said that he would contact PBS and see what he
could do. He also told the employees that he would call
them if jobs became available. There is no evidence that
Constantine ever followed through on his promise to
contact PBS about the matter, or that he ever contacted
the employees afterwards.
Unlike the judge, we do not find that this evidence
demonstrates that Constantine influenced PBS’s hiring
decisions. There is no indication that Constantine had
been given any hiring authority to act on behalf of PBS,
that he was authorized to speak on the Company’s be-
half, or that he had input into PBS’s hiring decisions.
Moreover, a number of the employees who had met with
Constantine subsequently went to PBS’s main office to
apply for jobs and were interviewed for positions by PBS
officials. In these circumstances, we do not construe
Constantine’s statements as evidence that he played a
role in PBS’s hiring decisions.
Fourth, we do not find that Constantine’s termination
of PBS employee Jorge Cea from a day porter’s position
at 80 Maiden Lane evinces any control by AM over
PBS’s firing process. As set forth in Section I, the day
porters worked directly for AM and were not PBS em-
ployees. In September 2000, when one of the day porters
quit unexpectedly, AM contacted PBS and requested that
PBS provide someone to temporarily fill the vacancy. In
response to AM’s request, PBS transferred Cea to the
building from one of its other worksites.7
After Cea had been on the job for a few days, Constan-
tine told Cea that he would consider him for the position
on a permanent basis as an employee of AM. At the end
of Cea’s first week, however, Constantine told him that

7 There is no evidence that AM specifically requested that Cea be as-
signed to fill the position.
AM PROPERTY HOLDING CORP. 1001
the position would be filled by someone else. Cea was
then reassigned by PBS to another location.
Although Constantine’s decision resulted in Cea’s
transfer out of the building, Cea remained an employee
of PBS. Thus, Cea’s status as an employee of PBS was
not affected by Constantine’s actions. Accordingly, we
reject the judge’s conclusion that Constantine’s actions
demonstrate that AM significantly influenced PBS’s em-
ployment decisions. See Flav-O-Rich, Inc., 309 NLRB
262, 265 (1992) (employer’s statement to temporary em-
ployee that employment was going to end was not evi-
dence of a joint employer relationship where employee
was reassigned by employment agency).
Finally, we affirm the judge’s finding that AM affected
the hire, wages, and benefits of PBS employee Dennis
Henry, but we give that finding little weight. Henry was
employed by AM as a night porter at 75 Maiden Lane
when AM purchased the building at 80 Maiden Lane. A
few days before the purchase, Henry was informed by his
supervisor that he was going to be transferred to the new
building. On the first day that Henry reported for work
at 80 Maiden Lane, Constantine told him that he was
going to work for PBS. Henry then spoke with Gilbert
Sanchez, a PBS supervisor, who explained that Henry’s
duties were to prepare the supplies for the cleaning crew
and check to see that their work had been done.
Henry was unhappy with the change, particularly the
lower salary he received as a PBS employee, and com-
plained to AM official Paul Wasserman. Wasserman
assured Henry that his benefits would remain the same as
those he had received from AM. As a result of
Wasserman’s intervention, PBS increased Henry’s salary
and gave him a paid holiday. We agree with the judge
that this evidence demonstrates that AM played an inte-
gral role in PBS’s hiring of Henry, and that AM signifi-
cantly influenced Henry’s wages and benefits. As stated
above, however, the evidence does not establish that AM
played any significant part in the hiring of other PBS
employees.
2. Direction of PBS employees
In late July, Henry was transferred back to AM’s pay-
roll, but his position and duties remained the same. The
judge concluded that Henry’s continued oversight of
PBS employees after having been transferred back to
AM’s payroll established that AM was extensively in-
volved in directing the work of PBS employees. We
disagree.
The Board has held that evidence of supervision which
is “limited and routine” in nature does not support a joint
employer finding. See, e.g., G. Wes Limited Co., 309
NLRB 225, 226 (1992). The Board has generally found
supervision to be limited and routine where a supervi-
sor’s instructions consist primarily of telling employees
what work to perform, or where and when to perform the
work, but not how to perform the work. See, e.g., id. at
226; Island Creek Coal Co., 279 NLRB 858, 864 (1986).
Here, we find that Henry’s oversight of PBS employ-
ees is of the type that the Board has found to be limited
and routine.8
Henry’s duties included distributing keys and cleaning
supplies to employees at the start of the shift, preparing
and signing employee timecards,9 and ensuring that em-
ployees did their work properly. If the work was not
properly done, Henry asked employees to do it over.
There is no specific evidence, however, that Henry
trained employees or instructed them how to perform
their tasks.10 Accordingly, we do not find that Henry’s
direction of PBS employees while employed by AM is
sufficient to establish a joint employer relationship.11
For similar reasons, we reject the judge’s finding that
the occasional assignment of work by AM officials to
Diana Vasquez, who was employed by PBS as a day
matron, is evidence of a joint employment relationship.
The record shows that Constantine or another AM em-
ployee sometimes asked Vasquez to redo work that was
not done properly, or asked her to perform tasks that
were not part of her regular duties, such as cleaning a
floor that had been recently rented. As with Henry, we
find that this oversight was limited and routine, and
therefore not indicative of joint employer status.

8 AM and PBS argue that, in assessing whether a joint employment
relationship existed, the judge’s finding that Henry was not a statutory
supervisor precludes any reliance on Henry’s role in directing PBS
employees. We find it unnecessary to address this argument because
even assuming that Henry was a statutory supervisor, we find that the
extent of his direction of PBS employees is insufficient under Board
law to establish that AM and PBS were joint employers.
9 When employees called in sick, Henry reassigned their work to
others, who received overtime pay. The record indicates that employees
could refuse to work overtime, and that Henry obtained the consent of a
PBS supervisor for the assignments either before or after he made them.
Compare, Computer Associates, International, 332 NLRB 1166, 1169
(2000), enf. denied on other grounds 282 F.3d 849 (D.C. Cir. 2002)
(finding joint employer relationship where one employer’s supervisor
exercised discretion in authorizing overtime requests by employees of
second employer).
10 PBS Supervisor Sanchez initially instructed employees on how to
perform their jobs. There was general testimony by employee Ana
Guzman that either she or Henry told new employees “what to do.”
11 See, e.g., Service Employees Local 254 (Women & Infants Hospi-
tal), 324 NLRB 743, 746–749 (1997) (finding no joint employer rela-
tionship where respondent regularly directed maintenance employees to
perform various tasks, but did not instruct employees how to perform
work); Southern California Gas Co., 302 NLRB at 461–462 (respon-
dent’s direction of porters and janitors insufficient to establish that it
was a joint employer where respondent did not engage in the bargain-
ing process, resolve grievances or disputes, or affect wages, benefits,
and hiring or firing of employees).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1002
3. Conclusion
In sum, we find that the totality of the evidence fails to
establish that a joint employer relationship existed be-
tween AM and PBS. Despite AM’s role with regard to
Henry’s hire by PBS and AM’s involvement in setting
his terms of employment, we find that evidence, by itself,
is insufficient to establish that AM and PBS were joint
employers. Compare, Bonita Nurseries Inc., 326 NLRB
1164, 1167 (1998) (evidence that single employee per-
formed some payroll and accounting tasks for one em-
ployer while employed as a controller for another em-
ployer insufficient to establish joint employer relation-
ship where employee did not meaningfully affect matters
relating to employment relationship). Unlike Member
Liebman, we find nothing here that presents a compel-
ling case for revisiting the Board’s joint employer stan-
dard, which has been well-settled law for approximately
20 years. See Airborne Express, 338 NLRB 597 fn. 1
(2002). Accordingly, we reverse the judge’s finding of a
joint employer relationship.
B. AM and Servco
The judge concluded that AM and Servco were joint
employers because (1) AM’s contract with Servco pro-
vided that AM would supervise Servco employees; (2)
Henry supervised the Servco employees; (3) Constantine
supervised the day matron employed by Servco; and (4)
Henry played a role in Servco’s hiring process and in the
determination of employee wages. As discussed below,
the evidence does not support the judge’s conclusions.
1. Direction and supervision
As set forth above, the Board’s inquiry with regard to
the direction and supervision of Servco employees is
properly focused on the practice of the parties, not the
language of the contract.12 The evidence shows that the
direction of Servco employees by Constantine and Henry
was similar to their direction of PBS employees as dis-
cussed above. The evidence also shows that Servco pro-
vided its own onsite supervision, initially by Servco Su-
pervisor Isaac Paredes.13 Although Paredes was not pre-
sent on a daily basis, he had the overall responsibility for
seeing that the employees’ work was done properly, and
had instructed employees that if they had a problem they
should go to him, not Henry. In these circumstances, we
find that AM’s direction of Servco employees was lim-
ited and routine, and therefore not indicative of a joint
employment relationship.

12 In finding that the contract provided for AM’s supervision of
Servco employees, the judge relied on a provision stating that Henry
would continue as a night supervisor in AM’s employ.
13 Paredes was replaced in December 2001.
2. Hiring of former PBS employees
We also reverse the judge’s finding that Henry’s role
in the hiring of former PBS employees demonstrates that
AM and Servco are joint employers. When Servco took
over the cleaning contract, Henry suggested the names of
employees that he felt Servco should retain. Servco then
independently interviewed the employees before making
any hiring decisions. In these circumstances, we do not
find that Henry meaningfully affected Servco’s hiring
decisions. See Martiki Coal Corp., 315 NLRB 476, 478
(1994) (employer’s role in providing employment forms
to applicants and making recommendations insufficient
to establish joint employer relationship).
32BJ argues that AM involved itself in Servco’s hiring
process by taking steps to ensure that Servco did not hire
the former PBS employees who were on strike at the
time that Servco was awarded the cleaning contract. As
explained in section I, the record shows that when the
striking employees sought applications from Henry and
Constantine, they were told that they were ineligible for
employment because of their participation in the strike.14
32BJ contends that these statements by Constantine and
Henry establish that AM was involved in the hiring proc-
ess and that a joint employer relationship existed. We
disagree.
In support of its argument, 32BJ relies on Le Rendez-
vous Restaurant, 332 NRLB 336 (2000), in which the
Board found that a hotel’s involvement in keeping a un-
ion work force out of an independently operated restau-
rant on the hotel’s premises was indicative of joint em-
ployer status. We find, however, that Le Rendezvous
Restaurant is distinguishable on its facts. In that case,
the hotel’s management was actively involved in the res-
taurant’s hiring of a nonunion work force, and also exer-
cised its authority under an agreement with the restaurant
to discipline restaurant employees. Here, there is no evi-
dence that Servco had authorized either Constantine or
Henry to make any representations on it behalf, or that
Servco had involved them in its hiring process. Further,
there is no evidence that AM otherwise affected the
terms and conditions of Servco employees. In the ab-
sence of such evidence, we find that the statements by
Constantine and Henry do not demonstrate the existence
of a joint employer relationship.
3. Determination of wage rates
Further, we find no evidence that Henry had an effec-
tive role in determining the wages of Servco employees.
On the day that Servco began servicing 80 Maiden Lane,
Sales Manager Mark Giacoia met with employees and

14 As discussed below, we affirm the judge’s finding that the state-
ments by Henry and Constantine violated Sec. 8(a)(1).
AM PROPERTY HOLDING CORP. 1003
told them that they would be paid $6 per hour. Henry
then said that the employees were good employees, that
they had been making $7 per hour, and that it would only
be fair to continue to pay them the same wage. Giacoia
said he would have to think about it. The final decision
concerning the wage rates was made by Servco President
Cestaro, who ultimately decided to pay the employees at
their prior rate. There is no evidence that Henry was
consulted or had any input into that decision. Conse-
quently, we find that Henry did not meaningfully affect
employee wage rates. Compare, Quantum Resources
Corp., 305 NLRB 759, 760–761 (1991) (joint employer
relationship found where respondent designated wage
rates, authorized changes in rates, and pushed through
raises for employees).
4. Other considerations
The General Counsel cites additional evidence, not re-
lied on by the judge, in support of the argument that a
joint employer relationship existed between AM and
Servco. First, the General Counsel argues that Henry’s
role in preparing and signing the timecards of Servco
employees demonstrates that AM exercised control over
the hours of its employees. We find no merit in this ar-
gument, as there is no evidence that Henry had any re-
sponsibility for determining employee work hours.
Rather, the evidence shows that Henry’s role in this re-
gard was limited to recordkeeping.
The General Counsel also argues that the inclusion of
Servco employee Zoila Henry’s name on a flyer that was
distributed by AM in December 2001 demonstrates that
AM held itself out as the employer of the Servco em-
ployees. The flyer, which was distributed to the build-
ing’s tenants, stated that “Building Management & Staff
Extend Their Warmest Greetings of the Season & Pros-
perity in the New Year,” and listed the names of the day
shift employees and their titles. We reject the General
Counsel’s contention that AM’s failure to specifically
identify Zoila Henry as a Servco employee demonstrates
that AM held itself out as her employer. The flyer did
not purport to be a representation of AM employees;
rather, it appears to have been the equivalent of a holiday
greeting card. Thus, we find no merit in the General
Counsel’s argument.
5. Conclusion
We find that AM’s role in overseeing the work of
Servco employees, in recommending employees for hire,
and in recommending Servco wage rates is insufficient to
establish the existence of a joint employer relationship.
Accordingly, we reverse the judge and dismiss the alle-
gation that AM and Servco were joint employers.
III. SUCCESSORSHIP
The judge found that AM and PBS, as joint employers,
were joint successors to Clean-Right because they re-
fused to hire the former Clean-Right employees to avoid
a bargaining obligation with 32BJ. The judge further
concluded that, as joint successors, the Respondents were
obligated to recognize and bargain with 32BJ, and that
they violated Section 8(a)(5) and (1) by refusing to honor
the bargaining obligation.
As explained in section IV below, we agree with the
judge that AM and PBS independently violated Section
8(a)(3) and (1) by refusing to hire the former Clean-
Right employees or to consider them for hire. However,
we reverse the judge’s findings that AM and PBS were
joint successors to Clean-Right, that they had an obliga-
tion to bargain with 32BJ, and that they violated Section
8(a)(5) and (1) by refusing to honor their bargaining ob-
ligation.
The General Counsel has litigated the 8(a)(5) refusal-
to-bargain allegation solely on the theory that AM and
PBS, as joint employers, refused to hire the Clean-Right
employees because of their support for 32BJ, and there-
fore were joint successors obligated to recognize and
bargain with 32BJ.15 Because we have found that AM
and PBS are not joint employers, we find that the Gen-
eral Counsel has failed to establish that they are joint
successors to Clean-Right. AM and PBS therefore did
not have a joint obligation to bargain with 32BJ.
We further find that we are precluded from consider-
ing whether either AM or PBS individually was a suc-
cessor to Clean-Right with an obligation to recognize
32BJ because the General Counsel has not litigated a
violation based on that theory. Because AM and PBS
each took over only a portion of Clean-Right’s business,
a key question in determining whether either entity inde-
pendently may be a successor is whether the employees
in that entity’s conveyed portion of the business consti-
tuted a separate appropriate bargaining unit. See, e.g.,
Louis Pappas’ Restaurant, 275 NLRB 1519, 1519–1520
(1985); Stewart Granite Enterprises, 255 NLRB 569,
573 (1981) (and cases cited therein). However, the Gen-
eral Counsel did not allege or establish the appropriate-
ness of the separate units. Consequently, we find that the
issue of whether AM and PBS were independent succes-
sors to Clean-Right is not now properly before us. See,
e.g., Sierra Bullets, LLC, 340 NLRB 242, 243 (2003)
(declining to consider theory of violation not litigated

15 See Love’s Barbeque Restaurant No. 62, 245 NLRB 78 (1979),
enfd. in relevant part sub nom. Kallman v. NLRB, 640 F.2d 1094 (9th
Cir. 1981).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1004
because respondent was not on notice that it would have
to defend against theory).
The judge also found that AM and Servco, as joint
employers, were joint successors to AM and PBS be-
cause Servco continued the cleaning operation in essen-
tially the same manner, employed some of the former
PBS employees, and refused to hire the striking PBS
employees because of their support for 32BJ. For the
reasons discussed above, we reverse. Consequently, we
also reverse the judge’s findings that AM and Servco had
an obligation to bargain with 32BJ, and that they violated
Section 8(a)(5) and (1) by refusing to recognize or bar-
gain with that Union.
IV. THE REFUSAL TO HIRE ALLEGATIONS
A. AM and PBS
Applying the analytical framework set forth by the
Board in FES, 331 NLRB 9 (2000), enfd. 301 F.3d 83
(3d Cir. 2002), the judge found that AM and PBS inde-
pendently violated Section 8(a)(3) and (1) by refusing to
hire the Clean-Right employees or to consider them for
hire.16 We affirm the judge’s findings of the violations
for the reasons set forth in his decision.
AM has excepted to the judge’s finding on the basis
that it did not hire any employees when it purchased 80
Maiden Lane, but rather transferred employees from its
other locations to fill the vacant day shift positions. We
find no merit in this exception. It is undisputed that the
day shift positions became vacant upon AM’s purchase
of the building, and that the employees who filled those
positions were employed by AM. Whether AM ulti-
mately hired new employees or transferred employees
from another building is irrelevant: the question here is
whether AM’s failure to hire former Clean-Right em-
ployees to the vacant positions was based on an unlawful
motive.17 We agree with the judge that AM refused to
consider or hire the former Clean-Right employees be-
cause of their support for 32BJ.18

16 The Board has recently held that FES is not applicable in cases in
which a successor employer refuses to hire the employees of its prede-
cessor because of their union sympathies. Rather, in such cases the
Board’s traditional analysis under Wright Line, 251 NLRB 1083
(1980), enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. de-
nied 455 U.S. 989 (1982), is appropriate. See Planned Building Ser-
vices, 347 NLRB 670 (2006) (PBS III). Here, however, the question of
whether PBS and AM were individual successors to Clean-Right was
not litigated. Thus, we find that the judge’s application of FES is ap-
propriate.
17 See, e.g., PBS III, supra at 707 (finding a refusal to hire violation
where respondent transferred employees to fill available positions to
avoid hiring predecessor’s employees).
18 We reverse the judge’s finding that AM unlawfully refused to con-
sider for hire former Clean-Right day matron Maria Hernandez. The
evidence shows that the day matron was employed by PBS, not AM.
AM also argues that the former Clean-Right employ-
ees gave up their right to employment in the building and
their right to file unfair labor practice charges by arbitrat-
ing a claim for severance pay under the collective-
bargaining agreement with the Witkoff Group. As men-
tioned above in section I, the agreement between Witkoff
and 32BJ provided that employees would receive sever-
ance pay if they were not retained by Witkoff’s succes-
sor. A separate clause in the agreement provided for
termination pay in the event of a reduction in force. The
arbitration upon which AM bases its argument arose as a
result of a dispute over whether the Clean-Right employ-
ees were entitled to termination pay. The sole issue ad-
dressed by the arbitrator was whether the sale of the
building resulted in a reduction in force as defined by the
collective-bargaining agreement. The arbitrator found in
favor of the employees and awarded the termination pay.
Relying on Spielberg Mfg. Co., 112 NLRB 1080
(1955), AM argues that the arbitration award provides an
affirmative defense to its refusal to hire the employees.
We disagree. The alleged contractual breach—Witkoff’s
denial of termination pay—has not been alleged as a vio-
lation of the Act. And AM’s refusal to hire the employ-
ees was not presented to the arbitrator as a breach of the
collective-bargaining agreement—nor could it have been
because AM was not a party to the collective-bargaining
agreement. Because its refusal to hire the former Clean-
Right employees was not before the arbitrator, we reject
AM’s arbitration-based defense.
Finally, AM contends that the Clean-Right employees
waived their right to continued employment at 80
Maiden Lane by accepting the termination pay. We find
no merit in this contention. The employees had specifi-
cally reserved their rights under article XV of the collec-
tive-bargaining agreement, which provides that nothing
in the agreement shall be deemed to limit the Union’s
right to enforce the agreement “against any transferee
pursuant to applicable law concerning the rules of suc-
cessorship or otherwise” or to “limit or diminish in any
way the Union’s or any employee’s right to institute pro-
ceedings” under Federal labor laws. In light of this pro-
vision, we reject AM’s waiver argument.
B. Servco
The judge found that Servco violated Section 8(a)(3)
and (1) by refusing to hire the striking PBS employees or
to consider them for hire. The judge based his finding on
(1) his conclusion that Servco departed from its usual
hiring practices; (2) the antiunion statements made by
Constantine and Dennis Henry to the striking PBS em-
ployees; and (3) Servco Manager Giacoia’s threat to fire
employees for talking to union representatives. For rea-
sons discussed below, we reverse.
AM PROPERTY HOLDING CORP. 1005
First, we find that the judge’s conclusion that Servco
deviated from its usual hiring practice is not supported
by the evidence. Giacoia testified that there was a
“mixed group of employees” who staffed 80 Maiden
Lane on the first day Servco took over, that “a lot of
them were brand new employees that Servco had hired”
and that “there were some from the previous company
that was there.” Giacoia was then asked by counsel what
the hiring process was “with respect to the new employ-
ees that you said Servco had hired.” He responded that
people generally would come to Servco’s main office in
the Bronx to fill out applications, which were then
screened by Servco’s office manager in charge of hiring.
Based on this testimony, the judge apparently con-
cluded that Servco typically hired employees for all of its
facilities through its Bronx office and had thus deviated
from its routine practice by retaining the nonstriking PBS
employees at 80 Maiden Lane. In our view, however,
Giacoia’s testimony, considered in context, refers solely
to how the new employees at 80 Maiden Lane were
hired. Moreover, there is no evidence as to whether
Servco typically hires incumbent employees upon taking
over a building in which there is a preexisting work
force. In the absence of such evidence, we reject the
judge’s conclusion that Servco departed from its usual
hiring procedures at 80 Maiden Lane.
Second, we find that, in the absence of a joint em-
ployer relationship between AM and Servco, there is no
basis for attributing to Servco the antiunion statements
made by Constantine and Henry to the striking PBS em-
ployees. Based on these statements, and on Giacoia’s
statement to Servco employees that they would be fired
if they talked to union representatives, the judge con-
cluded that it would have been futile for the PBS em-
ployees to apply for positions with Servco. There is no
evidence, however, that Servco had authorized Constan-
tine or Henry to communicate with the employees on its
behalf, or that Servco had done anything to lead the em-
ployees to believe that Constantine and Henry were act-
ing as its agents. Consequently, we find that the judge
could not properly rely on these statements in finding
that it would have been futile for the strikers to apply for
positions with Servco.
Third, although we agree with the judge that Giacoia’s
statement violated Section 8(a)(1), we find that this
statement, by itself, is insufficient to establish that it
would have been futile for the PBS strikers to apply for
positions with Servco. The statement was made to the
nonstriking PBS employees, and there is no evidence that
it was disseminated to the strikers. Thus, there is no ba-
sis on which to conclude that the strikers failed to apply
for jobs because Servco indicated to them that it would
have been futile to do so.
We disagree with our colleague that assertions by AM
officials to the strikers that Servco did not want anyone
from the strike are sufficient to excuse their failure to
apply. That the strikers may have acted on what they had
been told by Constantine and Henry is irrelevant. The
question is whether Servco did anything to discourage
the strikers from applying or to ensure that applying
would be futile, and it did not. See, e.g., E. S. Sutton
Realty Co., 336 NLRB 405, 408 (2001) (violation found
where employer took steps to ensure that workers could
not make timely application for positions); Systems
Management, 292 NLRB 1075, 1097 (1989). Accord-
ingly, we reverse the judge and dismiss the complaint
allegation.
V. PBS’S RECOGNITION OF THE UWA
We affirm the judge’s findings that PBS violated Sec-
tion 8(a)(2) and (1) by (a) soliciting authorization cards
for the UWA; (b) requiring employees to authorize the
deduction of union dues from their paychecks; (c) de-
ducting union dues from employee paychecks without
their authorization; and (d) deducting union dues for the
UWA after it had disclaimed interest in representing em-
ployees. However, we reverse his finding that PBS’s
recognition of the UWA as the bargaining representative
of the employees at 80 Maiden Lane violated Section
8(a)(2) and (1).
As discussed above, the judge found that the recogni-
tion was unlawful because it occurred at a time when
PBS, as a joint successor (with AM) to Clean-Right, had
a duty to recognize and bargain with 32BJ. Because we
have rejected the judge’s findings that PBS had an obli-
gation to bargain with 32BJ as a joint successor em-
ployer, we reverse his finding that PBS’s recognition of
the UWA was unlawful because it was obligated to bar-
gain with 32BJ.
The General Counsel also alleged and argued to the
judge that the recognition was unlawful because the
UWA did not represent an uncoerced majority of em-
ployees at the time of recognition. The judge found it
unnecessary to reach this argument because of his suc-
cessorship finding.
The General Counsel has not excepted to the judge’s
failure to rule on the alternative argument. PBS, in its
brief in support of its exceptions, argues that it recog-
nized the UWA based on a majority of lawfully obtained
authorization cards. In his answering brief, the General
Counsel argues that the UWA did not represent an unco-
erced majority of the bargaining unit at the time of rec-
ognition because PBS had unlawfully assisted the UWA
in obtaining the authorization cards.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1006
Contrary to our colleague, we find that the issue of
whether the UWA represented an uncoerced majority at
the time of recognition is not properly before us. The
General Counsel failed to raise a timely exception to the
judge’s failure to rule on the issue, and the Board’s Rules
and Regulations do not permit a party to assert cross-
exceptions in an answering brief. American Red Cross
Missouri-Illinois Blood Services Region, 347 NLRB 347,
354 (2006) (finding that issue raised by cross-exception
in answering brief was not properly before the Board);
Teddi of California, 338 NLRB 1032 (2003) (refusing to
consider issue raised in answering brief in the absence of
timely exception). Therefore, we dismiss the allegation
that PBS’s recognition of the UWA was unlawful.
VI. AM’S TERMINATION OF THE CONTRACT WITH PBS
We reverse the judge’s finding that AM’s termination
of its contract with PBS violated Section 8(a)(3) and (1)
because the violation is contingent upon the existence of
a joint employer relationship between the two Respon-
dents. Although the judge found that AM terminated the
contract because of the strike by PBS employees, it is
well established that an employer who refuses to do
business with a subcontractor because of the protected
activities of the subcontractor’s employees does not vio-
late the Act. Plumbers Local 447 (Malbaff Landscape
Construction) 172 NLRB 128, 129 (1968). Thus, in the
absence of a joint employer relationship there is no basis
for finding a violation.
We also reverse the judge’s finding that AM violated
Section 8(a)(5) and (1) by terminating the contract with-
out first bargaining with 32BJ over the termination, as
we have concluded that AM had no such bargaining ob-
ligation.
VII. AM’S ALLEGED RESCISSION OF A JOB
OFFER TO JORGE CEA
The judge found that PBS employee Jorge Cea had
been offered a position by AM Building Manager Con-
stantine, and that the offer was unlawfully rescinded after
Constantine had observed Cea speaking to a representa-
tive of 32BJ. AM contends that the evidence does not
support the judge’s finding that Constantine observed
Cea talking to the union representative or that Constan-
tine offered Cea a position. We affirm the judge’s find-
ings regarding Constantine’s observation of Cea;19 how-
ever, we agree with AM that the evidence does not dem-
onstrate that Cea received a job offer from Constantine.

19 We hereby grant the General Counsel’s request to strike the
judge’s purported dismissal of an allegation that Constantine created
the impression of surveillance by observing Cea, as there is no such
allegation in the complaint.
The credited testimony shows that a few days after Cea
began working at 80 Maiden Lane, Constantine told Cea
that he liked the way Cea worked and asked Cea if he
wanted to continue working in the building. Cea replied
that he would like to continue to work there. Constantine
then asked whether Cea would prefer to work for PBS or
work directly for him. Cea told Constantine that he
would rather work for him because he would make more
money. Constantine told Cea that he had a positive feel-
ing about Cea’s work, that he was doing a good job, and
that he would consider Cea for a job in the building.
Some time after this conversation took place, Constan-
tine observed Cea talking to a 32BJ representative while
sweeping the sidewalk in front of the building. The next
day, Constantine told Cea that although he liked Cea’s
work, he was going to hire a relative of one of the build-
ing’s engineers for the position.
Although Constantine indicated that he was consider-
ing Cea for a position, there is nothing here to indicate
that an offer of employment was ever made. Accord-
ingly, we reverse the judge and dismiss the complaint
allegation.20
VIII. THE INDEPENDENT 8(A)(1) VIOLATIONS
A.
The judge found the following violations of Section
8(a)(1):
(1) AM official Stanley Cunningham threatened
employees that they would lose their jobs if they
joined 32BJ.
(2) AM official Terry Donahue interrogated
Diana Vasquez about her intention to strike.
(3) Jack Constantine created the impression of
surveillance by telling Diana Vasquez that she had
been seen talking to a striker; asked Vasquez to let
him know if she heard anything about a strike
against PBS; and told former PBS employees that he
could not help them in obtaining jobs with the new
contractor because of their strike activities.
(4) Dennis Henry told PBS employees that they
would be taken out of the building if they joined
32BJ, and told former PBS employees that Servco
did not want anyone from the strike.21
(5) Mark Giacoia told prospective Servco em-
ployees that they would be discharged immediately
if they spoke to representatives of 32BJ.

20 The General Counsel did not allege or attempt to prove that AM
refused to hire Cea. Rather, the complaint alleged only that AM re-
scinded a job offer to Cea in retaliation for his support for the Union.
21 Although the judge found that Henry was not a supervisor, he
found, and we agree, that Henry was an agent (at least of AM), and
therefore that his actions are attributable to AM.
AM PROPERTY HOLDING CORP. 1007
We affirm the violations for reasons set forth by the
judge. However, we reverse the judge’s findings that
AM and PBS, or AM and Servco, respectively, were
jointly and severally liable for the violations as joint em-
ployers. Instead, we find that the violations by Cunning-
ham, Constantine, Henry, and Donohue are attributable
only to AM, and that Giacoia’s violation is attributable
only to Servco.
B.
The General Counsel has excepted to the judge’s fail-
ure to make specific findings as to some of the complaint
allegations, findings that would follow logically from the
facts and the violations he did find. Because the issues
were alleged and fully litigated, and the violations are
directly associated with violations found by the judge,
we grant the General Counsel’s exceptions and find these
additional violations of Section 8(a)(1):
(1) PBS supervisor Al Hernandez threatened em-
ployees with job loss and indicated that support for
32BJ would be futile by telling employees that it
would be difficult to organize 80 Maiden Lane be-
cause PBS’s contract stated that PBS would have to
leave the building if it accepted the Union.22
(2) Terry Donohue indicated that support for
32BJ would be futile by telling employees that the
Union would not enter the building.23
(3) Dennis Henry unlawfully assisted the UWA
by directing employees to attend UWA meetings and
by escorting them to the meetings.24
(4) Dennis Henry and Gilbert Sanchez were pre-
sent at or near the place where employees met with
union representatives.25
C.
We reverse the judge’s finding that PBS Supervisor Al
Hernandez engaged in unlawful surveillance of employee
union activities in July 2000, as the surveillance was nei-
ther alleged in the complaint nor litigated during the
hearing. Rather, the judge’s finding was based solely on
the content of a memo written by Hernandez and in-
cluded in a personnel file that was introduced into evi-
dence by 32BJ. The memo is dated July 19 and states,
“Last night these three new workers were speaking with

22 See, e.g., Mr. Z’s Food Market, 325 NLRB 871, 889 (1998), enfd.
in relevant part 265 F.3d 239 (D.C. Cir. 2001) (employer statements
communicating that organizing drive would result in job loss and store
closure found to be unlawful threats).
23 See, e.g., T & J Trucking Co., 316 NLRB 771, 779 (1995), enfd.
86 F.3d 1146 (1st Cir. 1996) (employer statement that it would not
permit the union to come in found to be unlawful).
24 See, e.g., Famous Castings Corp., 301 NLRB 404, 407 (1991).
25 See id.
. . . 32B&J People . . . Will Monitor.” There was no tes-
timony regarding the memo or the circumstances sur-
rounding it, nor was it offered for the purpose of estab-
lishing unlawful surveillance. In these circumstances, it
cannot be said that the issue was fully litigated; accord-
ingly, we reverse. See Desert Aggregates, 340 NLRB
289, 292–293 (2003) (issue was not fully litigated where
facts giving rise to issue emerged incidentally during
hearing).
IX. JOB OFFERS TO FORMER CLEAN-RIGHT EMPLOYEES
The General Counsel has excepted to the judge’s fail-
ure to address a complaint allegation that the employ-
ment offers made by PBS to former Clean-Right em-
ployees for positions at other buildings were contingent
upon the discriminatees accepting an unlawful bargain-
ing relationship between PBS and the UWA.26 The Gen-
eral Counsel argues that in PBS III, supra, the Board
found that PBS’s recognition of the UWA as the bargain-
ing representative of the employees at those buildings27
violated Section 8(a)(2) and (1), and that any job offers
contingent upon accepting working conditions pursuant
to the bargaining relationship are unlawful. We agree,
and grant the General Counsel’s exception.
The record shows that PBS sent each discriminatee a
letter offering employment at a particular worksite. The
letter also stated that “[t]he actual terms [of employment]
are spelled out in the Collective Bargaining Agreement
between Planned Building Services, Inc., and the United
Workers of America.”28 In addition to the letter, the dis-
criminatees received a separate attachment of “a Sum-
mary of Wages and Benefits governing [the] initial terms
and conditions of employment.”
We agree with the General Counsel that this offer
makes clear to the discriminatees that if they were to
accept the position, their working conditions would be
subject to the terms of a bargaining agreement that we
have previously found, in PBS III, to have been unlaw-

26 The General Counsel has alleged that offers made to former
Clean-Right employees at 80 Maiden Lane are unlawful for the same
reason. However, because we have dismissed the allegation that PBS’s
recognition of the UWA at 80 Maiden Lane was unlawful, we find that
subsequent offers made to applicants at that building under the terms
and conditions of the UWA collective-bargaining agreement were not
unlawful.
Because Member Liebman would find that the recognition was
unlawful, as set forth below, she would also find that the offers made to
applicants that were conditioned on the acceptance of the UWA agree-
ment were unlawful.
27 The buildings are located at 32–42 Broadway and 39 Broadway.
28 The master collective-bargaining agreement between PBS and the
UWA in effect at the time contained a union-security provision requir-
ing the discriminatees to become members after 60 days of employ-
ment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1008
ful.29 Consequently, we find that PBS has violated Sec-
tion 8(a)(2) and (1). See Fairmont Foods Co., 245
NLRB 915, 923 (1979) (finding violation where em-
ployer conditioned employment on acceptance of an
unlawfully recognized union).
X. THE ALLEGED CONFLICT OF INTEREST
PBS argues that counsel for the General Counsel Lau-
ren Esposito’s participation in this case was improper
because of her prior employment with a law firm that has
represented 32BJ, and that it was entitled to a hearing on
this issue. PBS also argues that Esposito’s participation
amounts to prosecutorial misconduct and that this mis-
conduct is an affirmative defense to the alleged unfair
labor practices. We find no merit in these arguments.
PBS initially raised the conflict of interest argument
with the Regional Director, who investigated the matter
and determined that Esposito did not do any work on
behalf of 32BJ while employed by the law firm. The
Regional Director also sought the advice of the Agency’s
Ethics Officer and the Division of Operations Manage-
ment, who concurred that Esposito’s participation in the
case did not pose a conflict. The Regional Director in-
formed PBS of her findings, and PBS moved for a sepa-
rate hearing on the issue prior to the trial.
The motion went before Judge Biblowitz, who found
no merit in the conflict of interest allegation. Judge
Biblowitz found that under the applicable statute, an em-
ployee of the Agency may not participate in a matter
involving a person with whom he or she has a “covered
relationship.” See 5 CFR § 2635.502. A covered rela-
tionship includes a person for whom the employee has,
within the last year, served as an attorney or consultant.
Based on representations by the Regional Director, Judge
Biblowitz found that Esposito did not have a covered
relationship with 32BJ and that there was no conflict of
interest with regard to her participation in this case. He
further found that, even if a covered relationship existed,
there was no real or apparent conflict that would prevent
Esposito from participating in the case. Thus, he denied
the motion.
PBS again raised the conflict of interest argument with
the trial judge, who, like Judge Biblowitz, found no con-
flict of interest in Esposito’s participation in this case.
The judge also struck PBS’s affirmative defense of

29 We find no merit in PBS’s argument that we may not rely on PBS
III in finding a violation here. The Board may rely on specific findings
from prior decisions involving the same party in determining whether
that party has committed additional violations of the Act. See, e.g.,
Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1328–1329
(2006) (relying on violations found in prior case in determining that
employer unlawfully polled employees and withdrew recognition).
prosecutorial misconduct, finding that it was not a valid
defense to the complaint allegations.
For reasons set forth above, we affirm that Esposito’s
participation in this case posed no conflict of interest,
and that PBS’s contention that it was entitled to a sepa-
rate hearing on the issue is without merit. PBS has pre-
sented no evidence throughout any of these proceedings
to support its position that Esposito’s participation in the
case violated any government regulation. Indeed, in its
motion for a hearing, PBS admitted that it could not
“submit complete evidence of a violation” at that time,
but rather asserted that was “the purpose of a trial.”
Given this admitted lack of evidence, we reject PBS’s
assertion that it was improperly denied a hearing on this
issue.
We also affirm the judge’s finding that PBS’s asserted
defense of prosecutorial misconduct is not a valid de-
fense to the allegations in this case. Notwithstanding, we
agree with PBS’s contention that the judge’s striking of
the defense deprives PBS of an opportunity to preserve
the issue for appeal. Thus, while we reject the Respon-
dent's defense on its merits, we grant PBS’s exception
alleging that the defense was improperly stricken by the
judge. See, e.g., Purolator Products, 272 NLRB No. 161
fn. 1 (1984) (not reported in Board volumes).
AMENDED REMEDY
Having found that AM, PBS, and Servco have engaged
in various unfair labor practices, we shall order that they
cease and desist from such acts and take certain affirma-
tive action designed to effectuate the policies of the Act.
We have found that AM and PBS, as separate business
entities, have violated Section 8(a)(3) and (1) by refusing
to hire the former Clean-Right employees named in the
Order below because of their support for Local 32BJ.30
Accordingly, we will order that AM and PBS instate
those employees, respectively, and make them whole for
the discrimination against them. Whatever backpay is
found to be due the employees shall be calculated in ac-
cordance with F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Because PBS ceased providing maintenance services
at 80 Maiden Lane before the start of these proceedings,
we shall order PBS to offer the discriminatees substan-
tially equivalent positions at the other facilities that it
services. We shall leave to compliance the issue of
whether the discriminatees would have been retained by

30 We do not order instatement or make-whole relief for former
Clean-Right employee Eva Sequinot, as there is no evidence that she
applied for a position with either PBS or AM. Rather, Sequinot’s status
as a discriminatee is dependent on the judge’s finding that AM and PBS
were joint successors, which we have rejected.
AM PROPERTY HOLDING CORP. 1009
PBS after the contract for 80 Maiden Lane was termi-
nated. See, e.g., Mark Industries, 296 NLRB 463, 463
fn. 3 (1991); Compuware Corp., 320 NLRB 101, 104
(1995), enfd. 134 F.3d 1285 (6th Cir. 1998).
We have also found that PBS violated Section 8(a)(2)
and (1) by continuing to deduct union dues from em-
ployees’ paychecks after the UWA had disclaimed inter-
est in representing those employees. We shall therefore
order PBS to reimburse the employees for any dues or
fees that were unlawfully deducted.
Finally, for reasons set forth in the judge’s decision,
we shall issue a broad order against PBS in this case.
We shall also order a corporatewide cease-and-desist
Order and notice posting. This is the fourth in a series of
cases in which the Board has found that PBS has violated
Section 8(a)(2) and (1) by unlawfully soliciting union
authorization cards.31 Additionally, the violations found
to have been committed by PBS in this case are similar
in nature to the violations found by the Board in PBS III.
Where, as here, there is a clear pattern or practice of
unlawful conduct by an employer, the Board may find it
appropriate to issue a corporatewide order and notice
posting. See, e.g., Beverly Health & Rehabilitation Ser-
vices, 346 NLRB 1319, 1330 (2006); Miller Group, 310
NLRB 1235, 1235 fn. 4 (1993), enfd. 30 F.3d 1487 (3d
Cir. 1994).
We find that absent a corporatewide remedy, Respon-
dent PBS remains likely to commit unlawful actions at
other facilities against other employees. Accordingly,
we will issue a single, corporatewide remedial order ad-
dressing all of the violations found. We will also require
the posting of two versions of the notice to employees -
one to be posted at PBS’s office that had been responsi-
ble for overseeing the contract at 80 Maiden Lane, and
the other to be posted at each of the other facilities ser-
viced by PBS and at PBS’s other offices (if any) that
oversee such facilities.32 Beverly Health & Rehabilita-
tion Services, supra.
In addition to the remedies provided, 32BJ requests
special access to nonwork areas at PBS worksites, a pub-
lic reading of the notice, an order that PBS provide the
union with names and addresses of its employees, and an
order that PBS refrain from soliciting building owners to
deny 32BJ access.33 Although the Board may order ex-
traordinary remedies where an employer’s unfair labor
practices are “so numerous, pervasive, and outrageous”

31 See PBS III, supra; Planned Bldg. Services, Inc., 330 NLRB 791
(2000) (PBS II); and Planned Bldg. Services, 318 NLRB 1049 (1995)
(PBS I).
32 The notice shall be posted in English and Spanish.
33 We find that 32BJ’s other remedial exceptions are moot in light of
our finding that AM and PBS are not joint employers.
that ordinary remedies are not sufficient to overcome the
coercive effects of the violations,34 we find that the viola-
tions committed here by PBS do not warrant such ex-
traordinary remedies. Accordingly, we deny the request.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below, and orders that
A. Respondent AM Property Holding Corp., Maiden
80/90 NY LLC, Media Technology Centers, LLC (col-
lectively AM), a single employer, New York, New York,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to hire employees, or to consider them for
hire, because of their support for Local 32BJ, Service
Employees International Union (Local 32BJ).
(b) Threatening its employees with discharge for sup-
porting Local 32BJ.
(c) Interrogating its employees about their support for
and their activities on behalf of Local 32BJ.
(d) Creating the impression that its employees’ pro-
tected activities are under surveillance.
(e) Telling employees that engaging in protected ac-
tivities affected their eligibility for employment.
(f) Indicating to its employees that support for Local
32BJ would be futile.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
instatement to Nehat Borova and Renier Sabajo to their
former positions at its facility at 80/90 Maiden Lane,
New York, New York, or, if those jobs no longer exist,
to substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges they
would have enjoyed if they had been hired, if necessary
terminating the service of employees hired in their stead.
(b) Make whole Nehat Borova and Renier Sabajo for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the amended remedy section of the Board’s deci-
sion.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-

34 See Fieldcrest Cannon, Inc., 318 NLRB 470, 473 (1995) (and
cases cited therein), enfd. in relevant part 97 F.3d 64, 74 (4th Cir.
1996).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1010
cial security payment records, timecards, personnel re-
cords 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.
(d) Within 14 days after service by the Region, post at
its 80/90 Maiden Lane facility copies of the attached
notice marked “Appendix A.”35 Copies of the notice, on
forms provided by the Regional Director for Region 2,
after being signed by Respondent AM’s authorized rep-
resentative, shall be posted by Respondent AM and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent AM to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings,
Respondent AM has gone out of business or closed the
facilities involved in these proceedings, Respondent AM
shall duplicate and mail, at its own expense, a copy of
the notice to all current and former employees employed
by Respondent AM at any time since April 25, 2000.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent AM has taken to
comply.
B. Respondent Planned Building Services, Inc. (PBS),
Fairfield, New Jersey, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Refusing to hire employees or consider them for
hire because of their support for Local 32BJ.
(b) Threatening its employees with discharge for sup-
porting Local 32BJ.
(c) Indicating to its employees that support for Local
32BJ would be futile.
(d) Directing its employees to meet with representa-
tives of the United Workers of America (UWA).
(e) Having company officials present at or near the
place where union officials are meeting with its employ-
ees.
(f) Directing, ordering, or instructing its employees to
sign authorization cards or dues-authorization forms for
the UWA.
(g) Deducting dues for the UWA from the salaries of
its employees who have not authorized such deductions.

35 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
(h) Deducting dues for the UWA after the union dis-
claims interest in representing its employees.
(i) Threatening employees with an investigation re-
garding their immigration status in retaliation for giving
testimony at a National Labor Relations Board proceed-
ing.
(j) Making employment offers contingent upon an ap-
plicant’s acceptance of terms and conditions established
under an unlawful collective-bargaining agreement with
the UWA.
(k) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to
the following employees instatement to their former po-
sitions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their seniority
or any other rights or privileges they would have enjoyed
if they had been hired, if necessary terminating the ser-
vice of employees hired in their stead:
Ramon Cedeno Elizabeth Zavala
Maria Hernandez Trinidad Machado
Maria Marin Virginia Matos
Mark Menzies Marie Michel
Shah Uddin Nehat Borova
(b) Make whole, in the manner set forth in the
amended remedy, the employees listed above, and Zoila
Gonzalez and Renier Sabajo, for any loss of earnings and
other benefits suffered as a result of the discrimination
against them.
(c) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords 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.
(d) Within 14 days after service by the Region, post at
its office that was responsible for overseeing the contract
at the facility involved in these proceedings copies of the
attached notice marked “Appendix B.”36 Copies of the
notice, on forms provided by the Regional Director for
Region 2, after being signed by Respondent PBS’s au-
thorized representative, shall be posted by Respondent
PBS and maintained for 60 consecutive days in con-

36 See fn. 35.
AM PROPERTY HOLDING CORP. 1011
spicuous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by Respondent PBS to ensure that the no-
tices are not altered, defaced, or covered by any other
material. Because it is undisputed that Respondent PBS
no longer performs services at the facility involved in
these proceedings, Respondent PBS shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent and former employees employed by Respondent
PBS at that facility at any time since April 25, 2000.
(e) Within 14 days after service by the Region, post at
all facilities it currently services and all of its offices that
oversee those facilities copies of the attached notice
marked “Appendix C.” Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by Respondent PBS’s authorized represen-
tative, shall be posted by Respondent PBS and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent PBS to ensure that the notices are not altered,
defaced, or covered by any other material.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent PBS has taken to
comply.
C. Respondent Servco Industries, Inc. (Servco),
Bronx, New York, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge for
speaking with representatives of Local 32BJ.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
the facility involved in these proceedings, and its office
that oversees that facility, copies of the attached notice
marked “Appendix D.”37 Copies of the notice, on forms
provided by the Regional Director for Region 2, after
being signed by Respondent Servco’s authorized repre-
sentative, shall be posted by Respondent Servco and
maintained for 60 consecutive days in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent Servco to ensure that the notices are not
altered, defaced, or covered by any other material. In the

37 See fn. 35.
event that, during the pendency of these proceedings,
Respondent Servco has gone out of business or no longer
services the facility involved in these proceedings, Re-
spondent Servco shall duplicate and mail, at its own ex-
pense, a copy of the notice to all current and former em-
ployees employed by Respondent Servco at that facility
at any time since June 15, 2001.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that Respondent Servco has taken to
comply.
MEMBER LIEBMAN, concurring in part and dissenting in
part.
This case illustrates the shortcomings in the Board’s
current approach to determining which economic rela-
tionships are appropriate for collective bargaining, in the
context of the subcontracting of work. Here, the Board
finds no joint employment relationship between a build-
ing owner (AM Property Holding Corporation) and its
successive cleaning contractors, Planned Building Ser-
vices, Inc. (PBS) and Servco Industries, Inc. That find-
ing seems correct under current law, whatever its flaws,
and so I reluctantly concur that none of the respondents
were successors to the unionized company (Clean-Right)
that originally provided cleaning services at the building.
With the same reluctance, I concur in the application
of controlling law to conclude that building-owner AM
Property lawfully terminated its contract with PBS be-
cause PBS employees engaged in statutorily-protected
activity.
But, in contrast to the majority, I would: find that
Servco unlawfully refused to hire, or consider for hire,
striking employees of PBS; find that PBS unlawfully
recognized the United Workers of America; and grant
extraordinary remedies against PBS. In all other re-
spects, I agree with today’s decision.
I.
Here, AM Property purchased an office building ser-
viced by a unionized cleaning contractor, Clean-Right.
Rather than hire Clean-Right’s employees, who had been
represented by Local 32BJ of the Service Employees
International Union, AM Property engaged PBS, which
brought in new employees. PBS then recognized the
United Workers of America (UWA), which (in contrast
to Local 32BJ) ultimately disclaimed interest in repre-
senting the workers. When some PBS employees went
on strike, AM Property terminated its contract with PBS
and engaged a new nonunion contractor, Servco. Servco,
in turn, hired none of the striking PBS employees, al-
though it did hire some nonstrikers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1012
Today, the Board finds that AM Property and PBS vio-
lated Section 8(a)(3) of the Act by refusing to hire, or
consider for hire, the former Clean-Right employees,
represented by Local 32BJ. The Board also finds that
AM Property was not a joint employer with either PBS
or Servco, and accordingly that none of the companies
were required to recognize and bargain with Local 32BJ,
as joint successors. Finally, the Board finds no violation
with respect to AM Property’s termination of its contract
with PBS or with respect to Servco’s refusal to hire strik-
ing PBS employees.
II.
Commentators have persuasively explained the basic
flaw in the Board’s joint-employer doctrine, as applied in
cases like this one:
[T]he restructuring of employment through the injec-
tion of a contractor between the client and the employ-
ees utterly insulates the client from the basic legal obli-
gation to recognize and bargain with the employees’
representative.
Craig Becker, Labor Law Outside the Employment Re-
lation, 74 Tex. L. Rev. 1527, 1543 (1996). This is be-
cause under current Board law, the “emphasis is on the
question of supervisory control, rather than on the provi-
sion of capital.” Michael C. Harper, Defining the Eco-
nomic Relationship Appropriate for Collective Bargain-
ing, 39 Boston College L. Rev. 329, 348 (1998). This
approach, Professor Harper and others argue, frustrates
effective collective bargaining by permitting the real
party in interest—the entity that provides the capital that
employees, in turn, make productive—to avoid the bar-
gaining table. See id. at 348–351.1 Indeed, a client com-
pany may effectively prevent employees from unionizing
by terminating its relationship with a contractor. Id. at
345 & fn. 82, 349 & fn. 90, citing Plumbers Local 447
(Malbaff Landscape Construction), 172 NLRB 128
(1968). I have argued, and I still believe, that the Board

1 Professor Harper offers the building-services industry as an exam-
ple of how his alternative approach would work:
[A] building owner that engaged a cleaning services contractor would
be legally required to bargain, along with the contractor, concerning
the compensation and working conditions of the cleaning workers.
The union could not insist on bargaining concerning the division of
management authority or returns between the employees’ two em-
ployers or on the ultimate source of the employees’ compensation, but
it could insist that both employers guarantee the level of that compen-
sation. The building owner would not be allowed to transfer the
cleaning contract because the contractor’s employees had organized a
union, or because they had demanded higher wages than the owner
wanted to pay.
Id. at 349 (footnotes omitted).
should revisit this area of labor law. Airborne Express,
338 NLRB 597, 597–599 (2002) (concurring opinion).
In this case, it seems clear that AM Property was the
dominant economic actor. It owned the building, and it
determined who would clean it. AM refused to hire the
unionized former employees of Clean-Right, unlawfully
discriminating against them, as we find. It selected non-
union PBS, discarded it after PBS employees struck, and
replaced PBS with nonunion Servco. But AM was not a
joint employer with either PBS or Servco. This result, I
acknowledge, follows from the Board’s current joint-
employer doctrine, which focuses on the evidence of
supervisory control by AM Property over the workers
who were employed to clean its building by the contrac-
tors that AM chose.
Control over hiring, of course, may establish a joint-
employer relationship. Yet while AM, in a very real
sense, determined who worked at the building—that is,
which contractor—the record evidence does not conclu-
sively establish that AM was directly involved in actual
hiring decisions with respect to individual employees.
Under our law, moreover, it is not enough that AM had
the contractual right to approve PBS hires.2 That rule is
open to question—surely the existence of contractual
authority, whether or not it is actually exercised, demon-
strates AM’s superior role in the workplace—but the
Board follows it.
As for a joint-employment relationship between AM
Properties and Servco, the most significant evidence con-
sists of statements by AM Property officials Dennis
Henry and Jack Constantine to striking PBS employees
that they were ineligible for employment with Servco
because of their participation in the strike. That evi-
dence, in my view, supports finding a refusal-to-hire vio-
lation with respect to Servco, as I will explain. But I
agree with my colleagues that the statements alone do
not compel the inference that AM, despite its established
antiunion animus, was directly involved in Servco’s ac-
tual hiring decisions, which is what the Board’s joint-
employer standard demands.
Finally, as the Board’s decision explains, because AM
Properties was not a joint employer with PBS, it was
privileged to terminate its relationship with PBS, even if
that decision was in response to the statutorily-protected
activity, striking, of PBS employees. That is the rule of
the Board’s much-criticized decision in Malbaff, supra,
which I have questioned. See Airborne Express, supra,
338 NLRB at 598 fn. 1.

2 See TLI Inc., 271 NLRB 798(1984), enfd. mem. 772 F.2d 894 (3d
Cir. 1985).
AM PROPERTY HOLDING CORP. 1013
III.
Although I concur with my colleagues that no joint
employment relationship between AM Properties and its
contractors has been proven here (and thus that no joint-
successorship relation, as expressly alleged, has been
established), I disagree with their view that Servco can-
not be held liable for discriminatorily refusing to hire or
consider the PBS strikers.
Our decisions make clear that such a violation will be
found even if incumbent workers fail to apply for jobs,
where a successor employer has obstructed their efforts
for discriminatory reasons. See, e.g., E.S. Sutton Realty
Co., 336 NLRB 405, 408 (2001) (collecting cases). I
would apply this principle here, notwithstanding our
finding (for reasons explained by the majority) that
Servco was not a joint successor. Considered in context,
the statements of AM and Servco officials to PBS em-
ployees, taken together, establish that the PBS strikers
were effectively precluded from seeking positions with
Servco, as a means of preventing unionization.
First, the assertions of AM Property officials Constan-
tine and Henry to the PBS strikers—that Servco did not
wish to hire employees connected to the strike—
reasonably tended to discourage them from applying.
AM, of course, determined whether Servco worked at the
building, a fact that could not have been lost on the PBS
strikers. AM’s antiunion animus, in turn, is established
by its unlawful refusal to hire the Clean-Right employ-
ees, as found here. It is clearly reasonable to infer both
that AM opposed unionization by employees of its clean-
ing contractor and that AM’s contractors, including
Servco, acted accordingly. Second, the statement by
Servco official Giacoia to nonstriking PBS employees—
that employees seen talking to the Union would be
fired—confirms that Servco would not have hired the
pro-union PBS strikers (and so jeopardized its contract
with AM). It would have been futile in fact, then, for
PBS strikers to apply to Servco, and the evidence
strongly suggests that the PBS strikers knew as much.
Under these circumstances, Servco is properly held liable
for refusing to hire or consider for hire the striking PBS
employees.
IV.
Despite correctly finding that PBS unlawfully solicited
authorization cards for the UWA, the majority declines to
find that PBS unlawfully recognized the UWA because
that union lacked the support of an uncoerced majority of
employees. Contrary to the majority, I do not believe that
the General Counsel’s failure to except from the judge’s
failure to rule on this theory of liability prevents us from
finding the violation. Rather, that finding flows logically
from the determination that PBS unlawfully solicited au-
thorization cards for the UWA and directed employees to
meet with UWA representatives. Those actions tainted the
UWA’s supposed majority support. PBS would not be
unfairly prejudiced if we found the violation: It addressed
the question of UWA’s majority support in its brief to the
Board, arguing that it recognized the UWA based on a
majority of lawfully obtained cards. The Board’s rules are
to be “liberally construed to effectuate the purposes and
provisions of the Act.” NLRB Rules and Regulations,
Section 102.121. Under the circumstances, I would excuse
the General Counsel’s technical error in failing to except.
V.
Finally, I would grant the extraordinary remedies
against PBS that Local 32BJ requests. This is the fourth
time that the Board has found that PBS violated Section
8(a)(2) and (1) by soliciting employee support for a par-
ticular union. Given PBS’s demonstrated propensity to
interfere with the Section 7 right of its employees to
freely choose their bargaining representative, special
remedies are warranted.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LABOR LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire employees or to consider
them for hire because of their support for Local 32BJ,
Service Employees International Union (Local 32BJ).
WE WILL NOT threaten our employees with discharge if
they support Local 32BJ.
WE WILL NOT interrogate our employees about their
support for and their activities on behalf of Local 32BJ.
WE WILL NOT create the impression that our employ-
ees’ protected activities are under surveillance.
WE WILL NOT tell employees that engaging in pro-
tected activities affected their eligibility for employment.
WE WILL NOT indicate to our employees that support
for Local 32BJ would be futile.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1014
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer instatement to Nehat Borova and Renier
Sabajo to their former positions at 80/90 Maiden Lane or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges that they would have enjoyed
had they been hired, discharging if necessary any em-
ployees hired in their place.
WE WILL make whole Nehat Borova and Renier Sabajo
for any loss of earnings and other benefits suffered as a
result of the discrimination against them, less any net
interim earnings, plus interest.
AM PROPERTY HOLDING CORPORATION
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LABOR LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire employees or consider
them for hire because of their support for Local 32BJ,
Service Employees International Union (Local 32BJ).
WE WILL NOT threaten our employees with discharge if
they support Local 32BJ.
WE WILL NOT indicate to our employees that support
for Local 32BJ would be futile.
WE WILL NOT direct our employees to meet with repre-
sentatives of the United Workers of America (UWA).
WE WILL NOT have company officials present at or
near the place where union officials are meeting with our
employees.
WE WILL NOT direct, order, or instruct our employees
to sign authorization cards or dues authorization forms
for the UWA.
WE WILL NOT deduct dues for the UWA from the sala-
ries of our employees who have not authorized such de-
ductions.
WE WILL NOT deduct dues for the UWA after the union
disclaims interest in representing our employees.
WE WILL NOT threaten our employees with an investi-
gation regarding their immigration status in retaliation
for giving testimony at a National Labor Relations Board
proceeding.
WE WILL NOT make employment offers contingent
upon an applicant’s acceptance of terms and conditions
established under an unlawful collective-bargaining
agreement with the UWA.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of the Board’s
Order, offer to the following employees instatement to
their former positions or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges they
would have enjoyed had they been hired, discharging if
necessary any employees hired in their place:
Ramon Cedeno Elizabeth Zavala
Maria Hernandez Trinidad Machado
Maria Marin Virginia Matos
Mark Menzies Marie Michel
Shah Uddin Nehat Borova
WE WILL make whole the employees listed above, and
Zoila Gonzalez and Renier Sabajo, for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against them, less any net interim earnings,
plus interest.
PLANNED BUILDING SERVICES, INC.
APPENDIX C
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LABOR LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
AM PROPERTY HOLDING CORP. 1015
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
WE WILL NOT refuse to hire employees or consider
them for hire because of their support for Local 32BJ,
Service Employees International Union (Local 32BJ).
WE WILL NOT threaten our employees with discharge if
they support Local 32BJ.
WE WILL NOT indicate to our employees that support
for Local 32BJ would be futile.
WE WILL NOT direct our employees to meet with repre-
sentatives of the United Workers of America (UWA).
WE WILL NOT have company officials present at or
near the place where union officials are meeting with our
employees.
WE WILL NOT direct, order, or instruct our employees
to sign authorization cards or dues-authorization forms
for the UWA.
WE WILL NOT deduct dues for the UWA from the sala-
ries of our employees who have not authorized such de-
ductions.
WE WILL NOT deduct dues for the UWA after the union
disclaims interest in representing our employees.
WE WILL NOT threaten our employees with an investi-
gation regarding their immigration status in retaliation
for giving testimony at a National Labor Relations Board
proceeding.
WE WILL NOT make offers of employment contingent
upon an applicant’s acceptance of terms and conditions
established under an unlawful collective-bargaining
agreement with the UWA.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce you in the exercise of the rights listed
above.
WE WILL, within 14 days from the date of this Order,
offer to instate those employees whom we have unlaw-
fully refused to hire to their former positions or, if those
jobs no longer exist, to substantially equivalent positions,
without prejudice to their seniority or any other rights or
privileges they would have enjoyed had they been hired,
discharging if necessary any employees hired in their
place.
WE WILL make whole the employees we have unlaw-
fully refused to hire for any loss of earnings and other
benefits suffered as a result of the discrimination against
them, less any net interim earnings, plus interest.
PLANNED BUILDING SERVICES, INC.
APPENDIX D
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LABOR LAW GIVES YOU THE RIGHT TO
Form, join, or assist any union
Choose representatives to bargain on your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten our employees with discharge
for speaking with representatives of Local 32BJ, Service
Employees International Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
SERVCO INDUSTRIES, INC.
Lauren Esposito and Olga C. Torres, Esqs., for the General
Counsel.
Stephen A. Ploscowe and Dean L. Burrell, Esqs. (Grotta,
Glassman & Hoffman, P.A.), of Roseland, New Jersey, for
Planned Business Services, Inc.
Allen B. Breslow, Esq. (Frank & Breslow, P.C.), of Farming-
dale, New York, for AM Property Holding Corp., Maiden
80/90 NYLLC, and Media Technology Centers, LLC.
Martin Gringer, Esq. (Franklin & Gringer, P.C.), of Garden
City, New York, for Servco Industries, Inc.
Elizabeth Baker and Judith I. Padow, Esqs., of New York, New
York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. Based on
charges and amended charges filed in the above cases by Local
32BJ, Service Employees International Union, AFL–CIO (Un-
ion or Local 32BJ), an amended consolidated complaint was
issued on January 11, 2002 in Cases 2–CA–33146–1, 2–CA–
33308–1, and 2–CA–33558–1 against AM Property Holding
Corp., Maiden 80/90 NY LLC, Media Technology Centers
LLC, a single employer, a joint employer with Planned Build-
ing Services, Inc. The United Workers of America (UWA) was
alleged as a Party in Interest. Based on charges and amended
charges filed in the above cases by the Union, a consolidated
complaint was issued on January 30, 2002 in Cases. 2–CA–
33864 and 2–CA–34018 against AM Property Holding Corp.,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1016
Maiden 80/90 NY LLC, Media Technology Centers LLC, a
single employer, a joint employer with Servco Industries, Inc.1
The complaint,2 as amended at the hearing, alleges essen-
tially that AM upon its purchase of the building at 80–90
Maiden Lane in April, 2000, engaged PBS as its cleaning con-
tractor, and thereby became a successor to the previous build-
ing owner and cleaning contractor which had a collective-
bargaining agreement with Local 32BJ.3 The complaint further
alleges that AM and PBS, as a single employer and joint em-
ployers, together engaged in a “hiring scheme” in which they
refused to hire and refused to consider for hire 13 employees
who would have constituted a majority of their employees who
had previously been employed at the building. The complaint
further alleges that PBS made it more difficult for those em-
ployees to apply for work and also that it unlawfully recognized
and signed a contract with UWA in April or May, 2000. Vari-
ous unfair labor practices are alleged attendant upon that con-
tractual relationship.
The complaint further alleges that as the successor to the
previous employing entity, AM and PBS failed to recognize
and bargain with Local 32BJ as the representative of the 80–90
Maiden Lane unit, and unilaterally set initial terms and condi-
tions of employment for the employees working there. It is also
alleged that PBS and AM rescinded an offer of employment to
Jorge Cea in retaliation for his union activities, and thereafter,
PBS caused his termination by offering him a work schedule it
knew he would not be able to accept.
In April, 2001, certain employees at the building went on
strike. Thereafter, in May, AM terminated the cleaning contract
with PBS. The complaint alleges that the termination of the
contract was because of the employees’ support of the Union
and because they engaged in concerted activities, and further
that the termination constituted an unlawful unilateral change in
the employees’ conditions which resulted in the termination of
25 employees.
Following the termination of PBS’ cleaning services by AM,
on June 15, Servco became the cleaning contractor. The com-
plaint alleges that AM and Servco, as joint employers, became
the successor to AM and PBS at the building, and failed to
consider for employment and failed to hire 17 employees who
had been jointly employed by AM and PBS and who were en-
gaged in the strike. The complaint further alleges that AM and
Servco unlawfully unilaterally set the initial terms and condi-
tions of employment for the employees they employed at the
building.
Finally, the complaint alleges that certain Respondents inter-
fered with its employees’ rights by unlawfully telling employ-
ees that they would not be considered for work because of their
activities in behalf of Local 32BJ and that they would be fired
if they engage in union activities in behalf of the Union; threat-
ening employees with discharge if they support the Union;
interrogating employees concerning their union activities; cre-

1 All the Respondents admit the filing and service of charges against
them in each of these cases.
2 The complaints will be referred to collectively.
3 The building may be variously referred to as 80–90 Maiden Lane
or 80 Maiden Lane.
ating the impression of surveillance of employees’ union activi-
ties; and promising employees wage increases. The complaint
also alleges that on March 27, 2002, the attorney for PBS
unlawfully threatened employees with an investigation regard-
ing their immigration status.
The Respondents’ answers denied the material allegations of
the complaint and allege certain affirmative defenses.4 On 17
days in March, April and May, 2002, a hearing was held before
me in New York City.
Several post-hearing motions were filed:
1. PBS attempted to file a “reply brief” which purported to
address certain alleged inaccuracies in the brief filed by Local
32BJ. I grant the motions of the General Counsel and the Union
to strike the brief. No permission was given to file such a brief
and it is accordingly struck. A.H. Belo, 285 NLRB 807, 810 fn.
1 (1987).
2. Local 32BJ filed a motion to reopen the hearing to receive
in evidence transcripts of a criminal investigation purporting to
contain conversations with certain individuals. All the other par-
ties, including the General Counsel, opposed the motion and I
denied the motion. The papers relating to the motion were placed
in the Rejected Exhibit file as Charging Party Exhibit 40.
3. Local 32BJ moved to correct the testimony of Nehat
Borova which referred to his starting date of employment and
the first time he met Stanley Cunningham. AM has no objection
to the motion. PBS objected. I overrule the objection and grant
the motion. Based upon Borova’s testimony as a whole it is
clear that the transcript should be corrected as moved. The mo-
tion and PBS’ objection are received in evidence as Charging
Party Exhibit 41.
4. The General Counsel moved, without objection, to substi-
tute two amended charges for those currently in evidence. The
motion is granted and the two amended charges have been
placed in the exhibit file.
5. The General Counsel moved to correct the transcript in
certain respects. PBS objected to only one proposed correction,
that of De La Cruz’ testimony. No other party objected to the
motion. I grant PBS’ objection to the motion in that one respect
since the proposed correction offers no more logical version
than the recitation in the transcript. The motion and PBS’ ob-
jection are received in evidence as General Counsel Exhibit
1(iii).

4 PBS asserted the affirmative defense of prosecutorial misconduct
in that the Regional Office assigned counsel for the General Counsel
Lauren Esposito to the investigation and prosecution of this case. PBS
alleges that Esposito, who worked for a law firm which represented
Local 32BJ, had herself represented Local 32BJ prior to her employ-
ment with the Regional Office. Subpoenas were served on Esposito and
various officials of the Board. I revoked all of the subpoenas and I also
struck the affirmative defense. I held that the subpoenas must be re-
voked because the written consent of the General Counsel for the pro-
duction of documents or the testimony of individuals had not been
obtained. I further decided that the Agency had satisfied its duties and
obligations by obtaining the opinion of its Ethics Officer that no real or
apparent conflict existed in Esposito’s participation in this case. I also
held that the affirmative defense was not a valid defense to the com-
plaint’s allegations. All the relevant documents are in evidence as PBS
Exh. 1.
AM PROPERTY HOLDING CORP. 1017
6. PBS moved to change an amended page of the transcript.
Initially, there was no answer to a question posed to Elizabeth
Zavala set forth on page 842 in the transcript. PBS requested
that the court reporting service examine the transcript and de-
termine if an answer was given. The reporting service reviewed
the tape and determined that the answer was “no” and issued an
amended transcript page on June 7, 2002. PBS moves that the
answer be changed to “yes” because it believes that the
amendment was incorrect and did not accurately reflect Za-
vala’s testimony. In the alternative, PBS moves to be permitted
to review the tape to determine whether its proposed correction
is appropriate. The General Counsel and Local 32BJ object to
the motion. The motion is denied. At the request of PBS, the
organization entrusted with the obligation to report this hearing
and to accurately transcribe it has reviewed its tape and issued
an amended transcript page. There is no reason to question its
validity.
Upon the evidence presented in this proceeding and my ob-
servation of the demeanor of the witnesses and after considera-
tion of the briefs filed by all parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent Planned Building Services, Inc. (PBS), a corpo-
ration having an office at 167 Fairfield Road, Fairfield, New
Jersey, has been engaged in providing cleaning and mainte-
nance services at various commercial and residential buildings.
Annually, PBS performs services valued in excess of $50,000
directly for enterprises located within New York State and pur-
chases and receives goods valued in excess of $5000 directly
from suppliers located outside New Jersey.
Respondent AM Property (AM), a corporation having an of-
fice and place of business at 80 Maiden Lane, New York, NY,
has been engaged in providing commercial property manage-
ment services at various buildings. Annually, AM performs
services valued in excess of $50,000 directly for businesses
located within New York and purchases and receives goods
valued in excess of $5000 directly from suppliers located out-
side New York State.
Respondent Maiden 80/90 NY LLC (Maiden 80/90), a cor-
poration having an office and place of business at 80 Maiden
Lane, New York, NY, has been engaged in the ownership of
commercial properties, including 80–90 Maiden Lane, New
York City. Annually, Maiden 80/90 performs services valued in
excess of $50,000 directly for businesses located within New
York and purchases and receives goods valued in excess of
$5000 directly from suppliers located outside New York State.
Respondent Media Technology Centers LLC, (Media Tech-
nology) a corporation having an office and place of business at
80 Maiden Lane, New York, NY, has been engaged in provid-
ing publicity services for various commercial properties.
Respondent Servco Industries, Inc. (Servco), a corporation
having an office and place of business at 1315 Blondell Ave-
nue, Bronx, New York, has been engaged in providing janitor-
ial services to commercial buildings in New York City. Annu-
ally, Servco derives gross revenues in excess of $50,000 and
receives goods valued in excess of $5000 directly from suppli-
ers located outside New York State.
Respondents PBS and AM admit and I find that they are em-
ployers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. Servco admits the facts concerning
jurisdiction, above, and I find that Servco is a statutory em-
ployer. Maiden 80/90 admits that is an employer of its employ-
ees within the meaning of the Act. Media Technology denies
the jurisdictional facts and also denies that it is a statutory em-
ployer.
AM, Media Technology, and Maiden 80/90 admit and I find
that they have been affiliated business enterprises with common
officers, ownership, directors, management and supervision;
that they have administered a common labor policy; have
shared common premises and facilities; have provided services
for and made sales to each other; have interchanged personnel
with each other; and have held themselves out to the public as a
single integrated business enterprise. They admit and I find that
they constitute a single integrated business enterprise and a
single employer within the meaning of the Act.
It is admitted and I find that Local 32BJ and UWA are labor
organizations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. The initial events concerning the ownership of the building
and its cleaning contractor
a. Ownership of the building by Witkoff
The building located at 80–90 Maiden Lane is a large office
building in the Wall Street section of Manhattan. Prior to the
events at issue here it was owned by the Witkoff Group which
is a member of the Realty Advisory Board on Labor Relations,
Inc. (RAB), a multiemployer association.
The Witkoff Group is a signatory to a collective-bargaining
agreement between RAB and Local 32BJ, and upon its pur-
chase of the building in 1998 applied that contract to the em-
ployees working at the building. Witkoff had an “in-house”
cleaning contractor called Clean-Right. Witkoff became subject
to the successor contract between RAB and Local 32BJ which
ran from January 1, 1999 to December 21, 2001.
b. The purchase of 80-90 Maiden Lane by AM
On January 6, 2000, Jeffrey Wasserman, a principal in AM,
signed an agreement for the purchase of 80–90 Maiden Lane,
and the closing was held on April 25, 2000. It is undisputed that
at the time of the purchase, Wasserman and AM were aware
that prior owner Witkoff had applied the RAB agreement to the
building.
The contract of sale listed the names of the 12 cleaning per-
sons then employed by Witkoff, noted the fact that they were
members of Local 32BJ, and listed their rates of pay at $16.43
per hour.5
Jeffrey Wasserman testified that, prior to the closing, AM
decided not to accept the RAB-Local 32BJ contract, and also
decided not to employ the Local 32BJ represented employees in
the building. The Union-RAB contract provided that if the em-

5 Except for Ramon Cedeno who earned $13.14 per hour. He had
been employed only 4 months at the time of the building’s sale.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1018
ployees were not offered employment by the predecessor em-
ployer or hired by the successor, or if the purchaser failed to
assume and adopt the Union contract, the employees were enti-
tled to an additional 6 months’ severance pay. Accordingly the
building purchase contract specified an amount of $300,000 as
liquidated damages to be paid by AM to the Clean-Right em-
ployees.6 Wasserman stated that an escrow account was created
if the purchaser did not want to accept the union contract. He
also testified that his goal is to employ outside subcontractors
to provide cleaning services to the buildings owned by his
companies. It should be noted that none of the six buildings
managed by AM has a contract with Local 32BJ. I note that
Jeffrey Wasserman became aware of a successor company’s
obligation to bargain with the union that represented the em-
ployees of the predecessor. I reject his denial that he saw a
Regional office dismissal letter, which was addressed to him in
January, 1999, and which set forth that principle regarding
AM’s refusal to hire two employees at 65 Broadway.
AM’s counsel stated at the hearing that “we paid over
$300,000 to the union, and the workers candidly testified that
they got their money. Now if we are paying them money to go
away, why do we still have them? They should be gone. This is
one of the unique cases where the buyer or seller actually paid
the employees to go away, and the employees are still there. ‘I
want to work again.’”
The complaint alleges that AM took over the building main-
tenance services in unchanged form and manner. AM argues
that it did not take over the building maintenance services.
Rather, it says that AM was the managing agent which then
hired PBS to clean the building.
The complaint further alleges that AM set the initial terms of
employment which were different than those under the collec-
tive-bargaining agreement with Witkoff. AM argues that there
is no proof that it set any terms and conditions of employment
at the building. Rather, it hired PBS at a set price and the terms
of employment set by PBS were of no concern to AM.
Stanley Cunningham was employed as the building manager
of 80–90 Maiden Lane by Forrest City Ratner from 1988 to
1998 when it was sold to the Witkoff Group. He therefore knew
many of the building service employees who were employed at
the building during that period of time.
Cunningham became employed by AM in February, 2000,
showing space to prospective tenants in the building. While
there he saw the Clean-Right employees, some of whom testi-
fied that they had heard rumors that the building would be sold
and that they might lose their jobs.7 Prior to her leaving for
vacation on April 19, 2000, employee Maria Hernandez told
Cunningham that she hoped to see him again. He said “why
not? Everything will be okay.” In late March, employee Vir-
ginia Matos was introduced to Jack Constantine by Cunning-
ham. Constantine became employed by AM on April 1, 2000,

6 The Clean-Right employees later received the additional severance
pay in an arbitration proceeding brought by Local 32BJ.
7 PBS asserts that, although the Union was aware of these rumors, it
took no steps to learn the name of the new contractor or request that the
employees be considered for hire by it until June 14 when the Union
attorney wrote to PBS, as discussed below.
as the building manager at 80–90 Maiden Lane. He was trained
by Cunningham, the prior building manager. Matos told Con-
stantine that she had worked in the building for many years.
Constantine remarked that he would like to have people like her
working for him.
c. AM contracts with PBS
On April 25, 2000 AM entered into a contract with PBS to
provide cleaning services for AM at 80–90 Maiden Lane. In
examining the circumstances surrounding that contract it is
important to discuss the earlier relationship between the two
companies.
In January, 2000, PBS contracted with AM to provide clean-
ing services for 65 Broadway. AM official Paul Wasserman
stated that he negotiated the contract with Michael Francis, the
chief executive officer of PBS, and Robert Francis, his son who
is the vice president of PBS. However, Michael Francis, cor-
roborated by Robert, denied being involved with that negotia-
tion. However, Robert stated that he consulted with his father
concerning problem areas or questions that he had.
Sixty-five Broadway was the first sale for Robert Francis,
who had just become employed by PBS. He conducted a walk-
through of the building in which he noted the number of com-
mon areas and bathrooms to be cleaned, and the types of clean-
ing necessary. He was also told by Paul Wasserman what clean-
ing was required. Robert Francis stated that the negotiation
encompassed a period of 6 to 8 weeks, and PBS began cleaning
services at 65 Broadway on January 17, 2000.
Robert Francis negotiated with Paul Wasserman in February,
2000 for the cleaning services at 75 Maiden Lane. Michael
Francis was not involved in the negotiation but it was Robert’s
custom to inform his father prior to submitting a bid for the
cleaning contract and discuss any issues that arose, such as
staffing. Robert stated that the specifications used for 65
Broadway were used as a “template” for negotiations for 75
Maiden Lane. Raymond DeArmas, who was then the opera-
tions manager for PBS, did a walk-through of that building and
told Robert the number of staff members needed to service the
building. Robert stated that AM employed its own employees
there so the number of workers needed was known. The nego-
tiation for this building took about two months, and PBS began
its work on April 19, 2000.
Before PBS signed the contract for 65 Broadway, Robert
Francis became aware that AM was purchasing 80-90 Maiden
Lane. He called Paul Wasserman more than one time request-
ing an opportunity to submit a bid for the cleaning work.
Wasserman told him to wait until AM purchased the building.
On April 24 or 25, he again called Wasserman who told him to
submit a bid. In that conversation, Wasserman did not give him
any specifications regarding what cleaning work was required
because they incorporated the cleaning requirements from the
ones they used for 65 Broadway and 75 Maiden Lane. They
discussed the square footage of the building, the number of
tenants, the occupancy of the building, the number of restrooms
and floors and whether the lobby was marble, stone or granite.
PBS did not conduct a walk-through of the building. Francis
took the square footage needed to be cleaned and used a “for-
mula” to calculate the number of employees needed. Francis
AM PROPERTY HOLDING CORP. 1019
also consulted a real estate reference book, Yale-Robbins,
which contains the physical specifications of buildings in Man-
hattan.
Stanley Cunningham, AM’s building manager for 80 Maiden
Lane, stated that he did not discuss with Paul Wasserman the
fact that in the past the cleaning contractors at 80 Maiden Lane
had a contractual relationship with Local 32BJ. Although he
knew the Clean-Right employees because he had been involved
in the building’s operations for ten years prior to the sale to
AM, and some of those employees had been continuously em-
ployed during that period of time, he did not speak to Paul
Wasserman concerning the employees working at 80 Maiden
Lane or the specific people who worked there prior to AM’s
acquisition of the property.
Regarding staffing, Robert Francis stated that he did not dis-
cuss staffing for 80–90 Maiden Lane with his father. Paul
Wasserman stated that he probably told Robert Francis that he
wanted at least the level of service provided by Witkoff, the
previous owner. Wasserman did not know the number of ser-
vice staff required, but Stanley Cunningham stated that he told
Paul Wasserman the number of cleaning staff used by Witkoff.
Robert Francis submitted a bid on April 25 and received an
acceptance 2 hours later. That evening, PBS began cleaning the
building. Francis stated that he did not discuss anything regard-
ing the building with his father prior to submitting a bid, and
that his first conversation with Michael Francis was after the
contract was signed. As set forth above, Michael Francis testi-
fied that ordinarily Robert discusses bids before him before
submitting them, but he could not recall whether he did so for
80–90 Maiden Lane.
Robert Francis testified that when he submitted the bid he
did not know that a union represented the employees who
cleaned the building at that time. He stated that the situation
was “very immediate.” He submitted the proposal and it was
immediately accepted. He was told that the building was
“empty staff-wise.” He sated that he “imagined” that people
were cleaning the building but never thought about who was
doing that work since it was not a “major concern.” According
to Robert, his father Michael did not become involved with any
aspect of PBS providing services to the building, except that he
handled the negotiations with UWA.
Robert Francis learned of the disputes between Local 32BJ
and PBS 3 to 5months after he began work with PBS in the
Spring of 1998.
d. The contract between AM and PBS
The 4-year contract between AM and PBS provides for the
following staff: 1 full-time night supervisor, 4 full-time night
porters/matrons, and 12 part-time night porters who will per-
form the services contracted for “as well as any other chores
and functions directed by your management.” (Emphasis in
original.) The contract further states that “all employees hired
to perform services at your complex shall be subject to the ini-
tial approval of your management.” Regarding supervision, the
contract states:
The planning, organization, control and coordination of the
daily and periodic cleaning requirements and maintenance
services shall be determined and scheduled by our Site Man-
ager in conjunction with the directions, requests and sugges-
tions of your management and maintained in accordance with
the quality control of our Regional Supervisor.
The contract also contains the following footnote:
Any employee that is retained from your existing staff at your
request who is receiving wages and/or benefits in excess of
those contained with the wage rate structure and benefits
within union collective agreement, shall continue to receive
said rates differential and/or other benefits. In that event, PBS
shall invoice Owner only for the actual differential plus a
twenty-five percent direct labor overhead factor plus the ac-
tual costs of any additional benefits which are to be provided
(emphasis in original).
The contract itself states that “at your request, the monthly
rate incorporates the retention of one night supervisor @
$10.00/hr., with single health coverage, holidays and sick
days.”
Michael Francis testified that the collective-bargaining
agreement referred to was based upon the “premise that there
will be a union agreement—any union agreement.” It is clear
that an agreement with Local 32BJ was not the union contem-
plated by PBS since its employees were paid $7 to $7.50 per
hour according to Francis, which was far below Local 32BJ’s
$16.34 hourly rates. It is also clear, as will also be seen below,
that the intended union was UWA, which entered into a con-
tract with PBS effective May 1, 2000, for the employees at 80–
90 Maiden Lane, only 5 days after PBS began work there.
2. The alleged discrimination against the cleaning employees
a. The alleged refusal to hire
The complaint alleges that on about April 25, 2000, PBS and
AM, by Stanley Cunningham, informed the 80–90 Maiden
Lane employees that they would not be hired to perform build-
ing service work at the building.8
The heavy equipment such as buffers and shampooing ma-
chines used by Clean-Right had been removed from 80-90
Maiden Lane during the days prior to April 24, 2000.9 Clean-
Right foreman Mark Menzies testified that even 2 weeks before
that date he saw what he believed to be new cleaning employ-
ees entering the building. Building manager Vincent Baffa told
them to leave because the building had not yet been sold. Men-
zies noted that he knew for some time that the building was for
sale and he informed the Local 32BJ delegate of that fact.
Nehat Borova, the elevator operator at 80–90 Maiden Lane,
testified that at about 3 p.m. on April 25, he and Frank Mayer, a
Clean-Right manager, removed the timeclock and timecards
from the sub-basement, and then Mayer asked the employees to
“stand by.” At about 4:30 p.m., Mayer told the employees that
the building was sold to a new owner, and that they should
leave the building.

8 Zoila Henry is listed in the complaint as having been terminated
unlawfully. There was no evidence that she was terminated or refused
hire and her name is struck from the complaint.
9 Zoila Gonzales testified that the equipment began to be removed on
April 24.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1020
When Menzies, the Clean-Right foreman arrived for work at
about 4:30 p.m., he was told by Vincent Baffa, the building
manager, that he should not punch in. Mayer told him that
Clean-Right lost the contract, and Baffa told him the building
was sold. Menzies testified that he asked Mayer if the new
contractor would offer the employees work. Mayer said he did
not know. AM official Jack Constantine was also present in the
building at that time.
Menzies stated that he asked Constantine whether he had ap-
plications for work for the new company, whether the new
contractor would be hiring the current workers, and whether the
new employer had its own workers. Constantine replied that the
new contractor had its own workers.
Menzies told the Clean-Right employees, as they arrived for
work, that the building was sold and that the new contractor
was bringing its own workers and they would not be given
applications. Clean-Right employee Zoila Gonzales testified
that upon arriving at work that evening she was told that the
building was sold. Cunningham told her that the new cleaning
company did not have the same union as she belongs to (Local
32BJ), and therefore the new salaries and benefits would not be
the same. He suggested that she “try” to apply for work with
the new company. She asked whether applications were avail-
able. Cunningham said no, and Constantine added that there
were no applications in the building. Gonzales and employee
Virginia Matos asked Mayer if there were jobs available and he
told them to go to their union.
As testified by Cunningham and PBS night supervisor Den-
nis Henry, Gilbert Sanchez, the Regional Supervisor of PBS,
was also present at 80 Maiden Lane at the time the employees
sought applications. However, they did not address him, and
Sanchez did not offer any applications or advice on obtaining
them.
That evening, employees of PBS began bringing cleaning
supplies to the building from 75 Maiden Lane, and began to
work.
The following day, April 26, the former Clean-Right employ-
ees went to Local 32BJ and told delegate Mary Kertestan that
they were “kicked out” of the building. Kertestan told them to
apply for jobs at PBS at 65 Broadway, and they went there.
Those employees included Nehat Borova, Shah Uddin, Maria
Michel, Eva Seguinot, Trinidad Machado, and Renier Sabajo. A
number of employees were admitted to the building management
office, which was not PBS’ office, and were told to go to 80
Maiden Lane to apply for work. The secretary told them that PBS
was the new contractor and gave them its phone number.
Several employees then went to 80 Maiden Lane. Borova
stated that he and the group he was with went to the 19th floor
of that building. He told AM official Constantine that they were
told by Local 32BJ to apply for jobs there. They wrote their
names, addresses and phone numbers on a sheet of paper which
Constantine took. Constantine told them that PBS was the new
contractor, and that he would contact that company and see if
there were any jobs or if there was any other way he could help
them.10 According to employee Marie Michel, Constantine told
them that no positions were then available but when there were
jobs he would call them. Michel added that Constantine told her
that the new company pays $7 per hour and that it does not like
Local 32BJ.
Constantine testified that Cunningham was involved with the
list, and conceded that the only purpose of the list was to con-
sider those employees for jobs. He stated that he told the em-
ployees that he and Cunningham would “see what we could
do.” Constantine did not know what use was made of the list.
Nevertheless, Constantine admitted that neither he nor Cun-
ningham called any of the workers on the list for a job. How-
ever, as will be set forth below, certain employees applied for
work with PBS and were given interviews.
b. Hiring at 80–90 Maiden Lane
i. The hire by AM
On April 26, 2000, AM directly employed the following day
shift building service employees at 80–90 Maiden Lane: Ed-
ward Guerrero, who was transferred from another AM location
at 65 Broadway; John Jones, who was transferred from 75
Maiden Lane; and Jesus Martinez, who was transferred from 75
Maiden Lane. Guerrero worked as the elevator operator at 80–
90 Maiden Lane, and Jones and Martinez worked as porters.
AM also directly employed the building engineers who worked
in the building for many years.
By transferring Guerrero, Jones and Martinez from its other
buildings, AM did not hire the two former Clean-Right em-
ployees who were employed at 80–90 Maiden Lane in the same
classifications: elevator operator Nehat Borova and porter
Renier Sabajo.
ii. The hire by PBS
(1) The cleaning personnel
On April 25, Robert Francis discussed staffing the building
with Wasserman. Francis knew that PBS would begin cleaning
the building that evening. Francis told Wasserman that he
would do the best he could, considering the “immediacy” of the
start-up. Wasserman told him to do the best he could but he
would understand if less than a full complement of staff was
employed that night. Wasserman said that he had a “stack of
resumes downtown”, but that Francis should fill the positions in
the best way he could.
Robert Francis testified that he and Paul Wasserman never
spoke about the Clean-Right workers, and in fact Wasserman
had not mentioned that Clean-Right was the prior cleaning
contractor, and Francis did not know that Clean-Right was the
former contractor. Francis denied speaking with Wasserman
regarding the union representation of those workers. Further,
Robert Francis denied knowing, in April, 2000, that if a major-
ity of the PBS workers employed at 80 Maiden Lane had been
employed by Clean-Right, PBS would be required to recognize
Local 32BJ.

10 In this respect, I do not credit Borova’s hearing testimony that Con-
stantine said that he would contact the workers if there were jobs at 80
Maiden Lane. That testimony contradicted Borova’s pretrial affidavit.
AM PROPERTY HOLDING CORP. 1021
Francis stated that Wasserman told him that PBS was going
into an “empty building staffwise,” and that Francis should
bring his personnel in to work in the building. This appears to
be the case as evidenced by Wasserman’s testimony that he did
not intend to hire the cleaning personnel then servicing the
building.
Nor did Francis discuss with Raymond DeArmas, the com-
pany’s operations manager whether those workers might have
been represented by Local 32BJ. Similarly, Francis did not
discuss the former building service workers with its Regional
Supervisor Gilbert Sanchez.
Robert Francis also denied discussing the staffing for 80
Maiden Lane with his father, Michael Francis who was aware,
in April, 2000, that if PBS hired a majority of its employees
who were represented by Local 32BJ it would have an obliga-
tion to recognize and bargain with the Union. Michael dis-
cussed that principle with Robert, but could not recall when he
did so. Michael Francis conceded that in the past, when staffing
new building accounts, he made hiring decisions based upon
whether an obligation to bargain with the Union would result.
He had testified in an earlier Board case that he made a deci-
sion that he would not offer jobs to most employees because if
PBS hired a majority of people represented by the Union PBS
would be obligated to recognize it. At this hearing he stated that
that consideration was not the primary reason why jobs were
not offered, but was only one of several factors. The primary
reason was economic—rate of pay; the performance of the
work; change in the hours of work; the substantial benefits
involved; and the fact that the employees would be asked to
clean more area than they had, for less pay.
Even before the contract was signed with AM, Robert Fran-
cis contacted PBS Regional Supervisor Gilbert Sanchez and
told him that PBS would be servicing 80 Maiden Lane that
night, and directed him to “staff the building.” Francis denied
knowing where Sanchez obtained the employees who were
hired for 80 Maiden Lane, and did not know if PBS transferred
them from other buildings it serviced. Francis described San-
chez as “scrambling to get staff.”
Robert Francis described the criteria used by PBS in consid-
ering for hire building service and maintenance employees.
PBS is looking for people with a “willingness to want to work
who are looking for work.” It will employ people willing to be
trained if they do not know the basics of cleaning work, and
those who will appear for work on time and “do their job.” PBS
values loyalty and those who “stay at the job” since the industry
suffers from a large turnover of employees.
Prior to April 25, Sanchez interviewed prospective employ-
ees at the other downtown locations serviced by PBS, and upon
the start-up of work at 80 Maiden Lane, the following employ-
ees were assigned to that location by Sanchez: Xiomara Aguil-
era applied on April 12 and was hired on April 26; Else
Andrade applied on April 18 and was hired on April 25 (when
interviewed she told Sanchez she had no experience. One week
later he told her to report for work in 30 minutes); Josefina
Castellanos applied on March 15 and was hired on April 25.
She was called on April 25 and told to report to work immedi-
ately. Maria de la Cruz was interviewed in February, 2000 and
began work in early May. She was called for work and asked to
start work the same day. None of these employees were former
Clean-Right workers.
On April 25, PBS employed a total of 11 employees at 80
Maiden Lane. There were seven new hires: Andrade, Jose Ba-
tista, Castellanos, Luis Colon, Alvaro Quiroz, David Ramirez
and James Wilson. PBS also transferred the following four
employees from other buildings to work at 80 Maiden Lane on
April 25: Antonia Garcia, Amarilys Gonzalez Hance, Asuncion
Navarro and Claudia Varela. Others were employed at 80
Maiden Lane immediately thereafter: April 26 - Sofia Gomez, a
transfer; May 1—Ana Guzman, a new hire, and Juan Marte, a
transfer.
(2) Dennis Henry
Prior to the purchase of 80-90 Maiden Lane, Dennis Henry
was employed by AM at 75 Maiden Lane as a night porter and
was a member of Local 2. He received family health insurance
coverage and benefits such as vacation pay, sick days and paid
holidays.
Paul Wasserman told Robert Francis that he should consider
Henry for a “supervisory role” for the building. In fact, Francis
included the footnote in the contract, set forth above, to cover
the employment of Henry. This was apparently done even be-
fore Henry was interviewed by Gilbert Sanchez, the Regional
Supervisor for PBS. A couple of days prior to April 25, 2000,
Henry’s superintendent, Joe Corana, told him he would be
working the day shift at 80—90 Maiden Lane.
On April 25, Henry was told by Constantine that he would
be working for PBS at 80—90 Maiden Lane during the night
shift, and asked him to meet with Gilbert Sanchez, PBS Re-
gional Supervisor, at the building. Henry reported to the build-
ing at 4p.m. that day and found a cleaning crew ready to start
work. He watched Sanchez assign the employees to jobs, train
them, and instruct them concerning their duties. Sanchez told
him that his duties were to prepare the supplies for the cleaning
personnel and check to see that the work had been done. A
payroll information document lists his title as “site supervisor
nights. Non-union supervisor.” Henry did not write that infor-
mation. Apparently a PBS employee wrote that note.
Henry was not happy being on the PBS payroll since he was
not receiving certain benefits with PBS that he had enjoyed
while on the AM payroll. Only one day after beginning his
work with PBS he complained to AM official Paul Wasserman
that he was not receiving enough money for the responsibilities
he now had. Wasserman told him that his pay would be raised
from $9.75 per hour to $11. Henry asked “why me”—why had
he been chosen for the night shift at 80–90 Maiden Lane.
Wasserman complimented him on his fine performance and
said he would receive the same benefits he had received while
on the AM payroll.
Henry continued to be unhappy with his employment by
PBS. In July, 2000, he complained to Wasserman that he did
not get paid for the July 4 holiday. Wasserman called Robert
Francis, telling him that he was entitled to be paid for the holi-
day. Henry continued to complain to Wasserman that the PBS
health insurance was too expensive and he was not being paid
for holidays. When he flatly refused to continue to work for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1022
PBS. Wasserman transferred him back to the AM payroll in late
July, 2000. He stated that his duties remained the same follow-
ing his transfer from the PBS payroll to the AM payroll.
c. Clean-Right employees’ attempts to obtain employment
i. The applications for work by the Clean-Right employees
and their interviews
Menzies testified that union delegate Kertestan “recom-
mended” that the former Clean-Right employees go to PBS in
New Jersey in order to obtain applications. Zoila Gonzalez
testified that she called PBS and told the receptionist that she
had been employed at 80 Maiden Lane and wanted to continue
to work there. Receptionist Felicia Woods offered to mail her
an application. Gonzales asked if she could visit the office since
she lived in New Jersey. Apparently, Woods agreed.
On May 2, certain Clean-Right employees traveled to PBS
headquarters in New Jersey and were given applications. Some
filled them out there and returned them at that time, and others
took the applications and mailed them back. The following
employees completed applications either in person or by mail
which were received by PBS on May 2 or in about the first
week in May: Ramon Cedeno, Zoila Gonzales, Maria Hernan-
dez, Trinidad Machado, Maria Marin, Virginia Matos, Mark
Menzies, Marie Michel, Renier Sabajo, Shah Uddin and Eliza-
beth Zavala. Those who completed the application in the PBS
office were told that PBS would contact them. Nehat Borova
testified that about two to four weeks after April 25, he called
PBS and asked for an application. He gave his name, address
and phone number, but never received an application and did
not pursue the matter.
Robert Francis became aware that the former Clean-Right
employees applied for jobs, and he asked PBS operations man-
ager DeArmas, to “interview them and give them jobs” wher-
ever there were openings. He directed DeArmas to hire them if
he believed that they were “suitable” to work. Francis stated
that he was somewhat motivated in giving this direction by his
attorney’s advice that PBS hire these workers, who, Francis
knew by that time, had been represented by Local 32BJ, and
some of whom had been sent by that union to apply for work.
Although Francis stated that he was not involved in the in-
terview or hiring process, he stated that he told “them”, proba-
bly meaning DeArmas, that there were no openings at 80
Maiden Lane when he directed DeArmas to interview and hire
for that building. However, Francis then stated that he did not
know whether there were openings at 80 Maiden Lane when he
spoke to DeArmas.
Receptionist Woods contacted five of the former Clean-
Right employees who had submitted applications, and at
DeArmas’ request, told them to report to its New Jersey office
for interviews.
DeArmas testified that the usual hiring procedure is that the
prospective employee completes an application and speaks with
the site supervisor—if the applicant was interested in lower
Manhattan, he would speak to Sanchez. Sanchez gives the ap-
plication to DeArmas who reviews it and returns it to Sanchez.
DeArmas stated that PBS’s New Jersey office is “very rarely”
involved in the hiring process, and that it would have been
easier for him and the applicants who live in the New York
City area to be interviewed at PBS’ district offices in the vari-
ous lower Manhattan buildings it services. But nevertheless, the
applicants came to New Jersey despite some people having
“problems” getting to New Jersey for the interview.
Another rarity was Woods’ memo to DeArmas advising him
that seven people, including Zoila Gonzales, came to New Jer-
sey for applications. She ordinarily does not send such a memo
but was told to do so by Ellen Rose, the PBS executive assis-
tant. Although that was unusual, DeArmas believed that their
trip to New Jersey showed their “eagerness to work.” A further
odd occurrence was DeArmas’ suggestion that a comment
made by applicant Hernandez to Woods be notarized. Hernan-
dez told Woods that Local 32BJ told the applicants to go to the
PBS office to apply for work, and that Hernandez said that she
could not afford to work for PBS but the Union directed her to
apply. DeArmas drew from this exchange that he got “mixed
signals” with the people he interviewed. They were “very nice”
but Hernandez’ mention that the Union sent them indicated to
him that “there is a different agenda.” All these uncommon
incidents caused DeArmas to question how he should proceed
so he suggested to Robert Francis that their attorney become
involved.
The interviews took place at PBS headquarters in New Jer-
sey on May 10. The interviewees were Zoila Gonzales, Maria
Hernandez, Virginia Matos, Renier Sabajo, and Elizabeth Za-
vala.11 A Local 32BJ representative told them that the salaries
offered would be lower than they had received at Clean-Right
but they should accept any job offered and the Union would
pay the difference in their wages. At the time the applications
were pending, DeArmas was aware that the Union had sent the
employees to be interviewed.
At the interview, DeArmas asked Gonzales how much
money she earned, and she told him $16.43 per hour. He asked
if she was a supervisor and she said she was not. DeArmas
asked if she preferred to work in New York or New Jersey and
she said she wanted to return to work at 80 Maiden Lane.
DeArmas told her that PBS would be obtaining other accounts
in early June and he would call her.
DeArmas told Hernandez that there were no openings at 80
Maiden Lane, but the Company was trying to get more build-
ings to service and he would call as soon as it obtains more
contracts. Hernandez stated that DeArmas told her that PBS
was having a “hard time” at 80 Maiden Lane since the new
crew “had no idea what to do in the building,” and that “I wish
they would keep you because you people seem to be a great
crew, and the building is in very bad shape.” DeArmas told
Hernandez that the pay was $5 per hour in New Jersey and $7
or $8 in New York. Hernandez said that she could not work for
$5 per hour, and could not drive to New York. DeArmas said
he would try to find her a job in New Jersey that she could
drive to.
Matos stated that DeArmas told her that he received good
references from other people and that he “wanted to have
workers like us,” but there was no work at that time. However,

11 According to PBS records, an interview with Shah Uddin was ar-
ranged but did not take place. His wife was called and told to contact
PBS.
AM PROPERTY HOLDING CORP. 1023
he expected that two buildings would be available and that he
would call her in early June. DeArmas said that the salary
would be $7 per hour and Matos said that would be acceptable.
DeArmas asked Zavala if she could work in New Jersey. She
replied that she lived in New York and it would be difficult to
work in New Jersey. DeArmas said that he would have work in
New York and that he would call her in June.
DeArmas testified that after their interviews, he decided that
they were good employees and the kind of employees with the
right kind of experience that PBS was looking for. They had
experience in the industry, a very good attitude, they seemed
positive and wanted to work and had long experience at 80
Maiden Lane. However, he stated that in May through July,
2000, PBS had already hired everyone it needed at 80 Maiden
Lane. DeArmas sought authority from Robert Francis to
“spread them around” to the other buildings even though 80
Maiden Lane was already fully staffed—because that would “at
least put them to work and it would help me.” Following the
interviews, DeArmas reported to Robert Francis that the inter-
viewees “seemed like good people” and were “willing to
work.” Robert told him to “put them to work.”
It should be noted that the following non-Clean-Right work-
ers were hired for 80 Maiden Lane on the dates indicated fol-
lowing the filing of the applications by the former Clean-Right
employees: Maria De La Cruz (May 5); Jacinta Tejeda (May
3); Meris Urena (May 8). All but Tejeda were new hires. Te-
jeda was transferred into 80 Maiden Lane from another PBS
location.
Following the date of the interviews on May 10 of certain
former Clean-Right employees, PBS first employed the follow-
ing non-Clean Right workers at 80 Maiden Lane on the dates
set forth: Marino Arias (May 12—transfer); Monica Batista
(May 12—new hire); Cecilia Dacto (June 14—new hire); Felix
Disla (May 24—transfer); Raymond Drayton (June 1—
transfer); Ivellse Espinal (June 2—new hire); Maria Fernandez
(July 24—new hire); Ingrid Gomez (June 19—new hire);
Marily Green (May 25—transfer); Mayra Monnar (July 24—
new hire); Edilberto Morillo Ponte (June 14—new hire);
Yolanda Ronquillo (June 14—new hire); Alexander Rosario
(June 7—new hire); Diony Tejeda (June 21—new hire). It
should be noted that certain of the above people were employed
for only 1 or 2 days.
On June 1, Zoila Gonzalez was participating in a demonstra-
tion of the former Clean-Right employees outside 80 Maiden
Lane. She heard that interviews were being conducted at that
building. In fact, PBS officials were interviewing at 80 Maiden
Lane for jobs at other locations. She entered the building and
was directed to the basement by Cunningham. Sanchez, who
was conducting the interviews, received a phone call before
speaking to her and then told her that he was told by the build-
ing manager that he could not interview people in that building.
Sanchez gave her a phone number to call for an interview at a
different location.
On June 2, Local 32BJ representative Ignacio Velez entered
80 Maiden Lane carrying a Local 32BJ flag and stationed him-
self where Sanchez was interviewing prospective employees.
He introduced himself to Sanchez and remained there for a
couple of hours, during which time he spoke to some inter-
viewees and succeeded in having two of them sign cards for the
Union.
When the former Clean-Right interviewees had not been
called by PBS, on June 14, the Union’s attorney wrote to the
attorney for PBS, inquiring about DeArmas’ statement to the
applicants that he expected that PBS would obtain work in
early June. In reply, the PBS attorney said that additional jobs
became available recently and that the applicants would be
contacted shortly.
On July 3, DeArmas sent letters to former Clean-Right em-
ployees Ramon Cedeno, Trinidad Machado, Maria Marin,
Mark Menzies, and Marie Michel saying that it had received
their applications for employment by PBS and asking them to
contact PBS for an interview. The letters noted that if they did
not call within 10 days PBS would assume that he or she was
no longer interested in employment with it.
The letter to Menzies stated that he had not returned several
telephone messages. Menzies conceded that he received a phone
call from PBS asking him to call for an interview. He did not
respond because he obtained another job from Clean-Right at
another location. DeArmas testified that Cedeno said that he
could not come to New Jersey for an interview, so an appoint-
ment was set up in Manhattan. DeArmas stated that Cedeno did
not appear, however he called PBS and another interview in
Manhattan was arranged. According to DeArmas, Cedeno once
again did not arrive. DeArmas testified that he interviewed in
Manhattan any former Clean-Right employee who asked for an
interview there. In fact, Trinidad Machado, Maria Marin and
Marie Michel were interviewed in Manhattan on July 13 and 14.
DeArmas stated that he was not aware, at the time of his in-
terviews or offers of employment, that a bargaining obligation
arises if PBS hires a majority of its employees from the former
Clean-Right workers. In fact, he was told by Michael Francis
that the employees are permitted to choose their union.
ii. The offers of employment to the former
Clean-Right employees
On July 5, PBS sent written offers of employment to the
former Clean-Right employees it had interviewed: Zoila Gon-
zalez and Reinier Sabato, to work at 80 Maiden Lane; Maria
Hernandez, for 32–42 Broadway; and Virginia Matos and
Elizabeth Zavala to work at 39 Broadway. The letters offered
them work for the 3:30 p.m. to 12 a.m. shift at a rate of pay of
$7 per hour. It asked the women to report for work on July 12.
Gonzales reported to work and was given employment pa-
pers by Gilbert Sanchez. Although her starting rate was sup-
posed to be $7 per hour, Sanchez spoke to DeArmas who of-
fered her “up to” $8.50 per hour. She was met by Dennis Henry
who escorted her to the basement where two work carts were
prepared for her, one containing a mop and materials for heav-
ier work which the male porters did previously at 80 Maiden
Lane. Gonzales asked why she was given two carts. Henry
replied that she had to mop. Gonzales protested that she never
did that heavier work but Henry said she had to do it. Gonzales
said she had a medical problem and did not even mop her own
house. They then went to the building manager’s office. Henry
went inside and emerged later, telling Gonzales that he was
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1024
sorry but all the women employees mopped and if she could not
do so, no other work was available. Gonzales then left.
On July 13, DeArmas wrote a memo to Ellen Rose, the PBS
executive assistant. In it DeArmas listed the former Clean-
Right employees who were hired in Manhattan. He also set
forth the status of offers made to others. DeArmas asked Rose
to check with the PBS attorney for the “tone” of the letter to be
sent to those hired who did not appear to work. The memo also
stated, following a note to call Shah Uddin, that he was part of
the “80 Maiden crew or another site, he can apply with Al
[Hernandez]. We will not continue to overhire since I only had
authorization for five people – one in each building at 32, 42,
39 Broadway and 80 and 75 Maiden. Confirm with Dean
[Burrell – an attorney for PBS] that this is ok—if not speak to
MDF [Michael D. Francis] before asking Al [Hernandez] to
hire anyone else.”
The memo also mentioned the following:
Please let MDF know of status and JD to make a note on the
budget sheets as to the extra personnel so that when the sheets
are looked at, it does not seem like the site is over hiring on
purpose.
On July 13 and 14, Trinidad Machado, Maria Marin, and
Marie Michel were interviewed in Manhattan.
On July 18, PBS sent a letter to Gonzales which stated that
upon being informed of her job duties she declined to begin
employment with the company and was no longer under con-
sideration for employment with PBS.
Matos and Zavala also reported to work when requested.
They both told Al Hernandez, who was the site supervisor at 39
Broadway that they could not accept the job. Matos said that
she was already working and Zavala said that she expected to
have surgery shortly. Hernandez told both women to contact
him if they needed work in the future. Shortly thereafter, they
received letters from PBS which stated that they had been of-
fered positions by the company and declined them. Thereafter,
in October, Zavala asked Hernandez for a job and he said that
no positions were available at that time.
By letter dated July 14, Machado and Marin were offered
jobs at 39 Broadway, and Michel was offered a position at 32–
42 Broadway. Marin reported to 39 Broadway on July 17 but
was told to go to 42 Broadway instead. She went there and
began work that day, and continued working until April, 2001.
On July 19, PBS Supervisor Al Hernandez wrote a memo
which was placed in Marin’s file. The memo stated that “last
night these three new workers were speaking with John Santos
and two other 32BJ reps. I feel that these people are either
plants or have been paid by Union to disrupt operations (no
proof)—will monitor.” Michel began work on July 17 and con-
tinued working there until April, 2001.
All eight of the former Clean-Right employees who were in-
terviewed by PBS received written offers of employment.
After being offered the night shift, Hernandez told DeArmas
that she could not accept that shift because of her commute
from New Jersey. DeArmas told her that when he got another
job he would call. On July 18, PBS wrote to her saying that she
was offered and declined a position in New York and was no
longer under consideration for employment with PBS, but that
she should contact DeArmas if she was interested in work in
New Jersey. Hernandez stated that 2 months later, PBS called
and offered her a position in Paramus, New Jersey, about a 45-
minute drive from her home. Hernandez declined that position
because it was too far from her home, but asked for a job closer
to her home, or a day position in New York.
d. PBS hiring for its other accounts
Astrit Gorana began work for PBS on June 1, 2000 as an ac-
count executive, replacing Gilbert Sanchez. Previously, he had
been an account executive for Golden Mark Maintenance in
charge of the Olmstead Properties buildings which consisted of
six office buildings in Manhattan. Golden Mark had a route
crew which cleaned those buildings on a regular basis. They
were not represented by a union.
On June 1, PBS took over the cleaning responsibilities for
the Olmstead buildings and distributed job applications to the
Golden Mark employees at the Olmstead buildings when it
began servicing those buildings. Gorana decided to hire the
former Golden Mark route crew for PBS because they were
experienced in all the Olmstead buildings. He communicated
that decision to PBS official DeArmas, and the route crew was
hired. Interviews for those positions were held at 80 Maiden
Lane. In addition, the existing cleaning personnel were retained
by PBS and further, it hired 21 new employees for the 6
Olmstead buildings.
3. PBS recognizes and signs a contract with the
United Workers of America
PBS had a master collective-bargaining agreement with
UWA which ran from May 1, 1997, through April 30, 2002.
The agreement provides, where material, that PBS recognizes
UWA as the exclusive collective-bargaining agent for all em-
ployees of PBS employed at all office buildings in New York
where PBS has contracted to do the building service, mainte-
nance and cleaning work. The contract provides that each indi-
vidual site location of PBS shall have its own collective-
bargaining agreement which shall be consistent with the terms
and conditions of the master agreement.
On May 11, 2000, an attorney for UWA wrote to Michael
Francis, stating that his client, Carmine Malgieri, had obtained
a majority of the cards for the employees at 75 Maiden Lane
and 80 Maiden Lane. Francis was asked to extend recognition
to UWA and commence negotiations for a contract. Eleven
authorization cards were enclosed with the letter. All the cards
were dated May 9, 2000.12 Cards were submitted from the fol-
lowing individuals: Xiomara Aguilera, Elsa Andrade, Josefina
Castellanos, Luis Colon, Sofia Gomez, Amariliz Gonzalez,
Alvaro Quiroz, David Ramirez, Madelin Santiago, Meris
Urena, and Claudia Varela.
Four of the eleven card signers testified. Aguilera and
Andrade testified that while at work they were asked by Dennis
Henry to go to the basement. They saw a person from UWA
and their coworkers. Aguilera heard the union agent say that by
signing the card she would become a union member. Andrade

12 The date of signature of the card for Claudia Varela was appar-
ently cut off in the copying process but based upon the regularity of the
other cards submitted I find that it too was dated May 9.
AM PROPERTY HOLDING CORP. 1025
believed that the card was for medical benefits. Castellanos
signed the card in Henry’s office. Henry told her that “John”
left it for her to fill out. Varela testified that Gilbert Sanchez
told her that UWA was a “company union” and that a “regula-
tion” required her to sign the card. Present were Henry and her
coworkers, set forth above.
Maria de la Cruz testified that she signed a card but she ap-
parently was not among those who were given and signed cards
on May 9. She stated that 1 week after she began work Henry
asked her to go to the basement. A UWA agent was present
with about four of her coworkers. She noticed that Sanchez and
Henry were in Henry’s office about 10 steps from where she
stood.
Michael Francis testified that he did not recall how he veri-
fied the signatures on the cards, and that he probably negotiated
the contract on the phone or in a meeting with Malgieri. They
bargained about the percentage of the wage increases and sick
days. No written proposals were presented by either party. They
agreed to the terms of a contract, Francis had it printed on his
office computer, and Malgieri probably came to his office
where they signed it. The contract covers 75 Maiden Lane and
80 Maiden Lane and is effective from May 1, 2000, through
April 30, 2003.
The contract contains a checkoff clause, and a union-security
clause requiring that employees become and remain members
of UWA on or after 60 days following the effective date of the
agreement.
Robert Francis testified that in about June, 2000, his attorney
told the PBS payroll department that it had to have dues au-
thorization cards signed by its employees. Francis directed the
payroll department to send to 80 Maiden Lane and all buildings
where unions represent employees those forms to be signed by
the workers. Diana Vasquez testified that Henry gave her a
dues authorization form, and said that Astrit Gorana, a PBS
supervisor, had given it to him. Vasquez did not sign it and tore
it up. Nevertheless, dues were deducted from her pay both be-
fore and after she was asked to sign the form. Ana Guzman and
Maria de la Cruz testified that in August, 2000, Walter Neme-
cek, who was at that time substituting for Dennis Henry, gave
them dues deduction forms which were attached to their pay-
checks. Neither woman signed the form, but dues were de-
ducted from their pay.
By letter to Michael Francis dated February 15, 2001, UWA
disclaimed interest in representing PBS “at all locations where
UWA currently represents those employees and at any future
locations that PBS may hereafter acquire.” Francis was re-
quested to stop deducting union dues or initiation fees from any
unit employee’s pay and return to any employees any sums that
have been deducted but not yet sent to UWA. Nevertheless, by
check dated March 1, PBS remitted dues to UWA, apparently
for the February dues amounts.
Henry denied telling employees that they had to sign cards
for a union, and also denied distributing cards for UWA. Nor
did he encourage any workers to join a union or tell anyone that
they had to join UWA. He further denied telling any employee
that she would be fired if she signed a card for or supported
Local 32BJ.
4. The meeting of September, 2000
PBS employees working at 80 Maiden Lane received the fol-
lowing note with their paycheck:
NOTICE TO ALL PBS EMPLOYEES
It has come to our attention that agents of Local 32B-32J are
encouraging you to improperly and/or illegally walk off the
job on or about September 18, 2000. This notice is to let you
know that PBS believes that any such walkout would violate
the no strike provision in the existing Union agreement and
would otherwise be unprotected activity under the National
Labor Relations Act. Employees engaged in such an action
may subject themselves to discipline up to and including dis-
charge. We suggest that you continue to work and not hurt our
customers and their tenants by withholding your services. If
you have concerns that you would like to address to Planned
Building Services, we suggest that you inform your manager
and ask him to arrange a meeting with you and PBS officials.
Thank you for your anticipated cooperation.
PLANNED BUILDING SERVICES
At about the time that they received this notice, the workers
were asked to attend a meeting. Present were AM officials
Cunningham13 and Constantine. Henry testified that he brought
the employees to the meeting and then left. A security guard
employed at 75 Maiden Lane translated Cunningham’s remarks
into Spanish. Cunningham said he represented the owners. PBS
employee Ana Guzman testified that Cunningham said that
there were rumors that Local 32BJ would “win back” 80
Maiden Lane. He said that the Union was harassing the work-
ers, and the company was attempting to sue it for harassment.
Cunningham also said that if PBS lost its contract it would try
to keep the workers and raise their salaries.14 He also men-
tioned that he did not want them to sign with Local 32BJ be-
cause they did not want the Union in the building, adding that if
they did sign with the Union they would lose their jobs. He
advised them not to speak to the Union’s representatives in the
building.
Maria de la Cruz stated that Cunningham said that a letter had
been received stating that PBS was being removed from the
building, and that another company was taking over and all the
employees would be replaced. He said that if the workers signed
with Local 32BJ, and that if the Union came in, they would be
“thrown out,” but if they did not sign, their continued work
would be “guaranteed.”
Claudia Varela stated that Cunningham said that Local 32BJ
was “surrounding the building”, and was not telling the truth to
the workers. Cunningham said that he was happy with their work
and did not want to lose them as workers, but that if they signed a
paper for the Union they would automatically lose their jobs. He
also said that he did not believe that a new company was taking
over, but if it did they would be retained by the new employer.

13 Cunningham was described by the workers as the “man with the
white hair.” At the hearing it was clear that he fit that description.
14 Varela said that questions were asked by the workers concerning
why their pay was so low, and Cunningham said that he would try to
“fix that.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1026
Diana Vasquez testified that when she was given the letter set
forth above, she was called into a meeting with Constantine, AM
director of commercial properties Terrence Donahue, and super-
visor Gorana. Constantine told Vasquez that she had been seen
speaking with Trinidad Machado.15 Machado was a former
Clean-Right employee who was on strike. Vasquez admitted
speaking with Machado but said that nothing of importance was
discussed. Donahue said that Local 32BJ would not enter the
building and PBS would not be leaving the building. He said he
just learned that the PBS employees were going on strike, and
asked if she would join the strike because if she was not working
they would have to get another employee to perform her work.
Vasquez also quoted Henry as saying at various times in the late
fall of 2000 that if the workers joined the Union and organized
themselves they would be “taken out of the building.”
Constantine testified that he was informed that the night clean-
ing crew heard that a new contractor might seek to obtain the 80
Maiden Lane account, and suggested that a meeting be held to
allay their fears. During the meeting, Cunningham said that there
would be no change in contractors, the workers’ jobs were safe,
and they were doing a good job. Cunningham also said that he
knew that Local 32BJ organizers were in the area, but that the
workers were not permitted to speak to them “on your shift” but
they could do so after their shift was over. Cunningham denied
telling the employees that they would lose their jobs if they
signed cards for Local 32BJ or if they supported that union, ex-
plaining that they were not his employees—they were the em-
ployees of PBS. Nor did he promise them a raise in pay.
Donohue testified that the meeting was held because the
workers were concerned that they would lose their jobs if PBS
was removed from the building. He told them that he was re-
ceiving proposals from new cleaning contractors, but reassured
them that as long as they did their job nothing would happen to
them. He denied telling the employees that if they signed a card
for the Union they would be fired, or if they did not sign a card
they would receive a wage raise. He also denied saying that the
Union would never get into the building. He further denied that
Cunningham promised any benefits to the workers or threat-
ened to fire them if they signed a card for the Union. Constan-
tine also denied that Cunningham said that the workers would
lose their jobs if they signed cards for the Union.
Vasquez stated that in the following month, October, Con-
stantine asked her if she knew anything about a big strike that
Local 32BJ was planning against PBS. Vasquez replied she did
not know anything about it. Constantine told her to let him
know if she learns anything about it since the Union was giving
him a “headache” and “driving him crazy.”
Vasquez testified that she spoke to Al Hernandez, a PBS su-
pervisor, in December, 2000. A question was asked whether
they should organize for Local 32BJ. Hernandez said that it
would be difficult for those who worked for 80–90 Maiden
Lane to do so because PBS had contracts with those buildings
which stated that if PBS accepted the Union, it would have to
leave the building after 30 days because the owners did not
want the Union in that building.

15 There was some confusion in the record as to who Vasquez was
speaking to. The PBS brief concedes that it was Machado.
5. The alleged unlawful conduct concerning Jorge Cea
Jorge Cea became employed by PBS on June 1, 2000 upon
its acquisition of the cleaning contracts for the Olmstead build-
ings. He had previously been employed by Golden Mark Main-
tenance, which previously had that contract. Cea performed the
same duties with PBS as he had with Golden Mark, which in-
cluded, as part of a route crew, stripping and waxing floors,
shampooing rugs, cleaning the stairs and lobby, and operating
the elevator. Cea’s supervisor was Skender Neziri, who re-
ported to Astrit Gorana. Gorana worked first for Golden Mark
and then for PBS. Gorana hired employees to work at 80
Maiden Lane between November, 2000 and June, 2001.
Neziri believed that Cea was a good worker, apparently fa-
voring him for continued employment by PBS over others at
Golden Mark who had been discharged upon that company’s
losing the contract.
When Cea began work for PBS, the former Clean-Right em-
ployees were engaging in a demonstration outside various build-
ings cleaned by PBS. He testified that during his first month of
employment for PBS, Neziri told him that “we” have nothing to
do with strikes or union related problems, adding that if Cea ever
saw anyone signing cards for Local 32BJ they would “automati-
cally” be fired. Neziri also told him that if he participated in a
strike “or anything to do with the union” he would “not be work-
ing there.” Neziri did not testify at the hearing.
Cea testified that in the summer of 2000, he overheard Go-
rana tell Neziri that if anyone signs a card for Local 32BJ he
(Neziri) should let him know immediately so that person can be
discharged. Later that summer, Cea asked Neziri whether he
should join Local 116 or Local 32BJ. Neziri told him not to
“bother” with Local 32BJ because if he did so he would be
“automatically” fired. Gorana testified, but did not deny having
this conversation.
Cea stated that he first met Local 32BJ organizer Ignacio
Velez when he was employed by Golden Mark. At that time,
Velez gave him cards for that union and Cea distributed them to
the service workers in the buildings.
In August, 2000, Cea was hurt while at work and was out of
work for about 3 weeks. Upon his return to work he presented a
physician’s letter to Neziri. Cea conceded that prior to his in-
jury he had “attendance problems,” but was not warned regard-
ing his absenteeism. In any event, Neziri told Cea to take as
much time as he needed to recover from his injury.
In September, 2000, AM employee Jesus Martinez who was
employed at 80 Maiden Lane went on vacation and never re-
turned. Constantine called PBS Regional Supervisor Sanchez
and asked him to assign a replacement for Martinez. PBS then
assigned its employee Jorge Cea to work at 80 Maiden Lane.
Cea testified that on September 3, 2000, he asked Neziri for
daytime work because he expected to attend school in the eve-
ning.16 Neziri told him to report to Constantine at 80 Maiden
Lane. Neziri told Cea that he might stay at that job “forever.” It
was a daytime job involving work at 80 Maiden Lane only and
not on the route crew where he worked in various buildings

16 However, Cea stated that when PBS asked him to work at night he
did not take day classes.
AM PROPERTY HOLDING CORP. 1027
during his shift. Constantine told Cea that he would be working
at 80 Maiden Lane for a few weeks.
Cea’s job at 80 Maiden Lane consisted of general cleaning
duties, moving furniture and operating the freight elevator. His
supervisor was Constantine. Since he worked during the day-
time he had no interaction with Dennis Henry who supervised
PBS’ evening employees.
Cea stated that a few days after being assigned to 80 Maiden
Lane Neziri told him that he had to do a good job because Con-
stantine said that he was doing a good job and he might be
working in the building “forever.” About 1 day later, Constan-
tine told Cea that he liked the way he worked and asked if he
wanted to continue working in the building. Cea said that he
did and Constantine asked if he wanted to work directly for him
in the building or for PBS. Cea replied that he wanted to work
for him in the building since he would be making more money.
Constantine essentially corroborated Cea’s testimony. Con-
stantine stated that he had a “positive feeling” about Cea’s
work, and that he was a good worker. In fact, he told Cea that
he was doing a good job and that he would consider him for a
job at 80 Maiden Lane.
The same day as the conversation with Constantine in which
Constantine spoke favorably to him about his work, Cea was
assigned to sweep the sidewalk in front of 80 Maiden Lane. At
that time, Local 32BJ was engaging in picketing the premises.
The demonstration was “noisy and hectic” with pedestrian traf-
fic and vehicular traffic. Cea testified that while sweeping,
Union Representative Ignacio Velez approached him and asked
how he was doing. Cea replied that he was happy working for
PBS but the building manager told him that he might be work-
ing for the building. Cea added that he could not talk too much
since he was working, but nevertheless spoke to him for about
10 minutes, with Cea sweeping and Velez following him. Cea
stated that while sweeping with Velez standing next to him he
saw Constantine with another person in front of a restaurant
across the street. He saw Constantine looking at scaffolding
attached to 80 Maiden Lane. He believes that Constantine saw
him speaking with Velez. Cea had not joined that picket line
and had never participated in a Local 32BJ picket line. The
complaint alleges that Constantine created the impression of
surveillance by this conduct.17
Velez testified that his conversation with Cea took place in
the middle of a rally of about 20 persons who were spread out
at the curb and in the street in front of 80 Maiden Lane. Velez
quoted Cea as saying that he was afraid because he believed
that he was being observed. Cea asked him to step back as he
did not want to get into trouble. Cea did not say that someone
was watching him at that time. Velez’ pretrial affidavit contains
no description of his conversation with Cea.
Constantine testified that he knew organizer Velez but de-
nied seeing Cea in front of the building speaking to Velez.
Cea testified that the following day, Constantine told him
that he liked the way he worked, but one of the building engi-

17 I hereby dismiss that allegation. Cea was engaging in his activity
in plain sight. This was the “mere observation of open conduct” and did
not constitute surveillance or the creation of the impression of surveil-
lance. Days Inn Management Co., 306 NLRB 92 fn. 3 (1992).
neers wanted to have a relative work in the building with him.
Constantine said that the engineer’s request carried greater
weight than Cea’s employment and accordingly told him that
Friday would be his last day. Cea thus worked at 80 Maiden
Lane for only 1 week—from September 11 through September
15. The complaint alleges that this conduct constitutes an
unlawful rescission of an offer of employment. Constantine
asked for Cea’s address and phone number in the event that he
was needed in the future. Constantine did not call Cea thereaf-
ter. Thereafter, Cea trained his replacement who he believed
was the man the engineer recommended.
Constantine testified that he did not hire Cea because he was
asked by the chief engineer for 75 Maiden Lane to hire his
brother in law, Robert Amadei. Constantine stated that histori-
cally he has always given a company employee the “benefit of
the doubt” in recommending a new worker. Accordingly, Ama-
dei was hired and was still employed at the time of the hearing.
PBS argues that Cea knew that he would be working at 80
Maiden Lane for only a few weeks. This was done in order to
fill an “emergency” opening, one which PBS did not expect to
fill, to replace AM employee Martinez who went on vacation
and never returned. PBS thus argues that Cea was properly
terminated by Constantine when his assignment ended.
However, his assignment did not end, as shown by the fact
that he was replaced by Amadei. Although Cea was told that he
would be there only a few weeks, nevertheless the conversation
he had with Constantine as supported by Neziri shows that he
was well regarded and would have remained employed in the
building but for his termination, which as will be discussed
below, was for unlawful reasons.
It should be noted that AM hired two porters to work at 80
Maiden Lane at about that time, Amadei and Alejandro Ibarra.
Amadei’s new hire memo states that he was hired as a porter on
September 12, and the new hire memo of Ibarra states that he
was hired as a porter on September 19.
On his last day of employment, Cea called Neziri and told
him what happened. Neziri remarked that he believed that Cea
would remain employment at 80 Maiden Lane. Neziri assigned
him to work at a building on East 62 Street where he worked
during the day shift for about 2 weeks. That job ended because
PBS’ contract expired.
Cea then told Neziri that he wanted a daytime job because he
was going to classes given by the Mason Tenders Union in the
evening. Neziri assigned him to work at a building on Broad-
way during the night shift, from 5 p.m. to 1 a.m. Cea refused
the job because he was attending evening school. Neziri told
him that he was fired because he needed someone who is reli-
able and would follow orders. Cea testified that classes were
given during the day and at night, and that following his dis-
charge he enrolled in daytime classes.
On April 13, 2001, counsel for AM wrote to the Board agent
that Constantine did not know Cea, did not discharge him, and
had no interaction with him.
The complaint alleges that Constantine rescinded an offer of
employment to Cea because of his activities in behalf of the Un-
ion, and failed and refused to restore the offer of employment to
Cea. AM argues that although there were discussions between
Constantine and Cea about future employment, there was no
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1028
offer to Cea. The complaint further alleges that in September,
2000, PBS, by Neziri, caused the termination of Cea by offering
him a work schedule that it knew that he would be unable to
accept. The date of discharge is on about September 20.
6. The events surrounding the strike and the replacement
of PBS with Servco
a. The strike by PBS employees
On April 23, 2001, all the PBS employees at 80–90 Maiden
Lane, with the exception of Zoila Henry, the wife of supervisor
Dennis Henry, went on strike. There was picketing each day,
accompanied by loud noise, through June 15, 2001, when AM
terminated its contract with PBS. An average of 6 to 10 pickets
demonstrated in front of the building, and Constantine recog-
nized some former PBS employees on the picket line. Occa-
sionally, police barricades were set up in front of the building.
The employees of 75 Maiden Lane did not go out on strike
or picket. Those employees were not represented by Local
32BJ and the contract between PBS and AM for the cleaning
work at that building continued in effect through the time of the
hearing.
b. AM terminates its contract with PBS
By letter dated April 20, 2001, PBS official Robert Francis
wrote to AM, advising it that beginning the second year of its
contract it was raising its monthly charge 4 percent. Thereafter,
as set forth above, PBS employees struck 80–90 Maiden Lane.
Robert Francis met with AM official Paul Wasserman to dis-
cuss the increase requested. Present were the labor attorneys for
PBS and AM. Wasserman told Francis that he would terminate
their contract for “economic” reasons. Francis stated that he
would have negotiated a lesser increase than the 4-percent re-
quested or no increase. Francis conceded that the presence of
the attorneys was “unusual,” but stated that the strike was not a
major issue. However, they discussed Local 32BJ, the noise
generated by the demonstrators, and the establishment of a
reserve gate.
On May 15, Wasserman sent a letter to PBS terminating its
services at 80 Maiden Lane as of June 15 due to “several rea-
sons not the least of which is economic.”18 Constantine testified
that he believed that the contract was terminated because of
economic reasons and because the “level of cleaning started to
suffer” after the strike.19 On June 12, Michael Francis sent a
letter to Wasserman protesting his decision to terminate the
contract and questioning its legality, referring to the contractual
language that it is for a period of four years. Francis further
stated that “it is regrettable that a contract has so little meaning
to you, especially when you are fully cognizant of the astro-
nomical legal cost (both retroactively and prospectively) (em-
phasis in original). Michael Francis testified that his reference
to the astronomical legal cost referred to his information that
AM paid $400,000 to settle with Local 32BJ because it did not

18 Employee Nehat Borova testified that in June, 2000, he noticed
that the lobby and elevator were extremely dirty, appearing that they
had not been cleaned in 1 month.
19 Constantine added that Wasserman would be the best person to
explain why the contract was cancelled.
offer employment to the Clean-Right employees, and also the
legal costs to PBS for the NLRB cases.
A similar increase of 4 percent was requested by PBS of AM
for 65 Broadway and 75 Maiden Lane. A 2.5-percent increase
was obtained for 75 Maiden Lane.
Paul Wasserman testified that prior to terminating the con-
tract with PBS he did not notify Local 32BJ of AM’s decision
to terminate its contract or that Servco would be the new con-
tractor. On June 19, 2001, AM sent a letter to the Union stating
that it has changed cleaning contractors. By letter dated June
29, the Union advised AM that AM breached its duty to bargain
by changing subcontractors without prior notice and bargain-
ing. The Union demanded bargaining concerning the decision
to change subcontractors and the effect of that decision. On
July 2, AM replied that it has never employed any employees
represented by Local 32BJ and thus “has no liability to those
employees by virtue of its unilateral decision, based upon eco-
nomic factors, to discuss with you its decision to change con-
tractors or to bargain over the effects of such a change.”
The complaint alleges that AM violated the Act by refusing
to bargain with the Union over the termination of the PBS con-
tract. AM argues that inasmuch as the Union did not represent
the PBS employees, bargaining with the Union over the PBS
contract levels would be futile.
c. AM contracts with Servco
Charles Cestaro, the president of Servco, testified that in
about mid May, 2001, he was told by Paul Wasserman that he
wanted a quote for the cleaning work at 80 Maiden Lane be-
cause he was unhappy with the services being performed, there
was a lot of turnover in the building and the quality of the
cleaning was deteriorating, resulting in many tenant complaints.
Wasserman did not mention the fact that PBS employees were
on strike at the building.
Cestaro did a walk-through of the property in early May. He
stated that at that time he saw no demonstrators in front of the
building and no police barricades. He met with Constantine
who did not mention the strike. Cestaro first became aware that
picketing was being conducted 4 to 6 weeks after he began
servicing the building.
On May 29, Servco offered a proposal and contract and on
May 31 it was signed. The contract provided for prices “with-
out union” and “with union staff”. That clause refers to Local
348S, which is the only union having a contractual relationship
with Servco. The contract also provides that “your present night
supervisor is to remain as night supervisor and compensated by
AM Property Holding Corp.” Cestaro testified that Dennis
Henry was the night supervisor referred to in the contract.
The complaint alleges that AM and Servco unilaterally set
the initial terms and conditions of employment for employees
in the 80–90 Maiden Lane unit. AM argues that it hired Servco
to clean the building at a fixed price and did not set any labor
rates or any other provisions in its contract with Servco.
d. The striking PBS employees seek employment
As set forth above, on April 23, 2001, the employees of PBS
at 80 Maiden Lane went on strike. Picketing and demonstra-
tions took place outside the building.
AM PROPERTY HOLDING CORP. 1029
During the picketing, the striking employees heard a rumor
that PBS was losing the contract and a new company would be
assuming the cleaning duties at 80 Maiden Lane. Local 32BJ
asked the employees to apply for work with the new company.
On June 14, 1 day before Servco was to begin work, a group of
striking employees entered the building and spoke to Dennis
Henry who told them that a new company was taking over. He
told them that he believed that the new company would be
bringing its own employees although he would prefer that it
hire the old workers because new employees would not know
the job. They asked for applications and Henry suggested that
they return on Monday and speak with the owner. Claudia
Varela suggested that since Henry had their phone numbers he
could help them get jobs. Henry responded that “they don’t
want anyone from the strike.”
Varela and Xiomara Aguilera then spoke with Constantine in
the building. Varela asked if a new company was starting, and
requested an application. Constantine said that a new company
would be doing the cleaning work, but that he could “not do
anything” for the workers because they “made trouble—in my
place. That we had not listened when they had told us to get
back to work, go back to work.” Aguilera stated that Constan-
tine said that they were given an opportunity to return to work
but they “preferred to create a disturbance outside the build-
ing.” Constantine suggested that they go to the Union and tell it
to get them a job.
Varela did not return to the building on Monday as suggested
by Henry since she believed that it would be futile to do so
because of Henry’s comment that the new company did not
want anyone from the strike. In any event, she testified that she
did not return because she was a college student.
On Monday, June 18, a few employees returned to the build-
ing at Henry’s suggestion. Constantine told Ana Guzman that a
new company was coming in. She asked for applications, and
Constantine told her that it was out of his hands since the new
company had its own workers. Constantine asked her if she
remembered the meeting with Cunningham in which the work-
ers were told that if PBS lost the contract it would have kept
them under the new contractor if the Union had not found them
jobs, but that they did not want the Union in the building. He
said they made a “bad decision” to go out on strike, but offered
to call them if jobs became available.
Constantine testified that he met with about four former PBS
employees in June, 2001. Varela asked him for applications and
he replied that he could not help them since he did not hire
them when they first worked with PBS and that he could not
hire them now. He said that they should contact Servco. He also
told them that Local 32BJ took them out on strike, which “was
not the best choice,”and perhaps that union could find them
work.
It is undisputed that no applications were requested from
Servco, and Local 32BJ did not contact Servco on or after June
15, 2001 regarding the striking employees at 80 Maiden Lane,
notwithstanding that the employees and Local 32BJ knew the
name of the new company shortly after June 14. It is the theory
of the General Counsel that inasmuch as AM is a joint em-
ployer with Servco, the applications sought from AM consti-
tuted applications to Servco, or that filing applications would
have been futile.
On June 18, Local 32BJ wrote to AM in behalf of 17 named
striking employees who were employed at 80-90 Maiden Lane.
The letter stated that the Union learned that AM was terminat-
ing its contract with PBS, and that the employees desire to con-
tinue their employment with AM or a new cleaning contractor
retained by AM. On June 19, AM replied, stating that AM has
not and does not employ building service employees at 80
Maiden Lane, it discharged its cleaning contractor the prior
week, and that the employees are free to apply for work with
the new contractor.
e. Servco begins operations
Denise Velez became employed by PBS at 80–90 Maiden
Lane on April 25, 2001. In early June she was told by Dennis
Henry that PBS was losing its contract and that Servco would
be taking over. Henry asked her and the other workers to come
in to work early on June 15, the first day of Servco’s work.
Henry added that he was not certain that Servco would be hir-
ing them, but in any event wanted them to train its employees.
On June 15, Velez reported to work and saw about 17 work-
ers from Servco. Servco Sales Manager Mark Giacoia, and
supervisor Isaac Paredes introduced themselves and distributed
applications. Velez testified that Giacoia said that he wanted to
inform all the workers that “nobody better not fucking talk to
the union because if you do, you’ll be fired on the spot.” Gi-
acoia said that he was not certain that Servco would hire them,
and that he would have to “see how it went with his workers”
and then advise them. Giacoia said that their salary was $6 per
hour for a 6-hour day. Dennis Henry said that the workers were
good employees and had been earning $7 per hour with PBS,
and that it was only fair to pay them what they had been mak-
ing. Giacoia said that he would think about it, and later paid
them $7 per hour.
The former PBS workers were told who to train that night,
and thereafter Servco hired eight PBS workers.20 The Servco
workers brought the first night remained for only about 1 week.
Dennis Henry testified that when Servco took over, Giacoia
and Paredes said they would keep certain PBS employees.
Henry said that he had to give them the names of the best
workers. He chose several, who were interviewed by a Servco
manager who selected certain workers and then asked him who
he wanted to stay. Giacoia asked Henry’s opinion regarding
whether they were good workers, and Henry recommended
them. Henry stated that Servco brought in most of the workers
and it needed only five or six prior PBS employees. Henry
stated that he could not recommend all the PBS workers, but
selected those who worked on the floors in which the New
York City Department of Investigation (DOI) was located. That
agency required cleaning employees with no criminal record
and who had undergone a screening process.
Giacoia testified that on June 15, the start-date for Servco,
applications were given to all PBS nonstriking employees. Also

20 Jose Beauchamp, Aquiline Devers, Carmen Gutierrez, Zoila
Henry, Josefa Molina, Gladys Rodriguez, Maria Troche, and Denise
Velez.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1030
present were new employees interviewed and hired by Servco
at its office, which was its usual process for hiring new work-
ers. He spoke to Henry regarding the job duties of the employ-
ees. Giacoia denied asking Henry to identify the five best em-
ployees. Giacoia then asked the PBS employees where they
cleaned—for example, who worked on the DOI floors, who did
bathrooms and who operated the freight elevator. He then hired
and assigned them to those positions. Giacoia denied interview-
ing any of the former PBS employees.
Giacoia denied speaking about Local 32BJ during his meet-
ing with the employees. However, he admitted speaking about
the Union to the workers the following week with Paredes and
Henry present. Giacoia initiated the meeting because of the
“loud, boisterous” picket line. He told the employees that if
they felt any apprehension or believed that the picketing would
be threatening they should enter the building from the rear en-
trance rather than come through the front of the building where
the picketing was occurring. Giacoia specifically denied threat-
ening them with discharge if they spoke to the Union.
Servco president Cestaro stated that he set the initial wages
and benefits for employees working at 80 Maiden Lane without
notification to or bargaining with Local 32BJ.
7. The supervisory status of Dennis Henry
a. When PBS had the contract
As set forth above, prior to AM’s purchase of 80–90 Maiden
Lane, Dennis Henry was employed by that company at 75
Maiden Lane. With the purchase of 80–90 Maiden Lane, Henry
was transferred to the payroll of PBS and worked at that build-
ing from April 25,2000, to July 31, 2000. Thereafter, at Henry’s
request he was reinstated to the AM payroll on August 1, 2000.
Regardless of whose payroll he was on, his duties at 80 Maiden
Lane remained the same—Henry was the night supervisor of
the PBS night cleaning staff. A payroll information document
lists Henry’s title as “site supervisor nights. Non-union supervi-
sor.” In a memo dated July 17, 2000, Robert Francis refers to
Henry as the “supervisor at 80 Maiden Lane.”
Henry denied that he hired, fired, suspended any employees,
or wrote evaluations or issued discipline, or transferred em-
ployees from one building to another. The evidence supports
this testimony. He assigned the cleaning personnel to work by
telling them which floors to clean, and reassigned them to work
on a different floor. If a worker was absent he asked them if
they wanted to work overtime and assigned two workers to
cover the absent employee’s work. It should be noted, however,
that he reported the absence to PBS Regional Supervisor San-
chez who then told him to assign the additional workers.
During the time that PBS Regional Supervisor Sanchez was
employed by PBS, Sanchez told Henry to ask specific employ-
ees to work overtime. However, after Sanchez left the employ
of PBS in the summer of 2000, Henry decided who to ask to
perform the additional work, and then asked the employee, and
only then asked Gorana, Sanchez’ replacement, if it was all
right. Henry stated that in this regard he selected those employ-
ees who he knew would do the job “best” since he knew who
the capable employees were. Henry testified that during the
period May and July, 2000, he operated the freight elevator all
the time—which was only when employees needed to be trans-
ported to and from their floors at the start and conclusion of
their shift. He distributed employees’ paychecks and initialed
their timecards during his tenure at the building. Henry gave the
employees at 80 Maiden Lane his pager number so that they
could call him if they expected to be late or would be absent.
PBS employees testified that when they began their em-
ployment, Sanchez showed them their duties which took about
one-half hour and Henry followed them as Sanchez explained
their tasks. Sanchez and Henry twice told Guzman to train new
workers.
Diana Vasquez was employed by PBS at 80 Maiden Lane
when PBS took over the cleaning responsibilities in that build-
ing in April, 2000. She was the day matron who cleaned the
bathrooms. She worked from 9 or 10 to 5 or 6 p.m. She was the
only PBS employee who worked during the day. Her work time
overlapped with that of Henry who arrived at about 4 p.m. She
stated that at first Sanchez gave her assignments. However,
following Sanchez’ departure in the summer of 2000. Henry
continued to give her specific assignments, such as mopping a
specific floor, and recleaning an area that required more dust-
ing. Vasquez further stated that if her job was not done well or
needed to be redone, Constantine or AM employee Edward
Guerrero called her by radio so they would not have to search
for her in the building.
Vasquez stated that if there were complaints about her work,
or work had to be redone, Constantine and Henry would tell
her. Constantine told her that a new floor was being rented and
that she had to completely clean the bathroom on that floor. On
one occasion, Henry told her to vacuum an area. She advised
him that she was pregnant and such work was too hard. Henry
responded that she must vacuum, and she did. Sanchez told
Vasquez to give vacation request forms to Henry. She gave
certain requests for time off for doctor’s appointments to Henry
and Constantine. At times she called Constantine’s office to
report that she was sick and could not come to work. Henry
testified that employees gave him a written request for a leave
of absence for a couple of days, a week or a month. He signed
the form as supervisor. Henry stated that he then asked his su-
pervisor whether the leave would be granted. Henry stated that
in May, 2000, while still on the PBS payroll, an employee who
expected to be absent called Supervisor Sanchez and not him.
Following the departure of Sanchez, the employees call Henry
who then calls the supervisor who authorizes him to obtain two
employees to cover the work of the absent employee.
It should be noted that Vasquez was specifically supervised
by PBS Supervisor Gorana who told her to take 1 week’s vaca-
tion on her last day at work when she became ill, and she asked
Gorana for permission to return to work.
Vasquez’ replacement, Maria Gonzalez, began work as the
day matron in January, 2001. She stated that Henry gave her
forms for dependents, and that Henry and AM employee Guer-
rero told her to do certain things that were not part of her rou-
tine, and Guerrero told her to redo an area that had to be
cleaned. Henry asked her to work overtime. She also requested
time off from both men.
Varela testified that Sanchez had an office in the sub-
basement of 80 Maiden Lane and was present there each day
when she worked. She told Sanchez that she would be absent
AM PROPERTY HOLDING CORP. 1031
for 1 week. She told Sanchez, and not Henry, although he too
was present in the building, because she was Sanchez’ friend.
Maria de la Cruz stated that she saw Sanchez each day. He
checked the floors she cleaned and then after he left PBS,
Henry began checking her work. If she called in sick she would
call Henry on his pager and advise him. She also asked Henry if
she wanted to leave work early. She stated that she stopped
work for PBS in January or February, 2001 because her wages
were too low. Ana Guzman stated that when she began work at
80 Maiden Lane she saw Sanchez only once or twice per week.
He showed her how to clean and what materials to use. Elsa
Andrade stated that Sanchez was at 80 Maiden Lane perhaps
four times per week.
Claudia Varela stated that, while employed at 80 Maiden
Lane, when she was going to be absent from work she called
Sanchez and Henry. When she had to leave work due to illness
she told Henry.
b. When Servco had the contract
Giacoia testified that Isaac Paredes was the overall supervi-
sor for Servco who was responsible for maintaining the quality
of the work and follow-up to ensure that the work was being
done. He was the liaison between the employees and the main
office. Giacoia also stated that Henry was the “eyes and ears”
of building management. He directed Henry to present any
problems or requests to him or Paredes. Henry testified that he
did the same work as a Servco supervisor as he did when he
worked for PBS.
Servco president Cestaro testified that early in its perform-
ance of the contract, Paredes arrived at the building at about 4
p.m., but then came later, at 6 or 7 p.m. Paredes was replaced
by Tony Battista in December, 2001, who arrives at the build-
ing at about 4:30 p.m. and leaves at 11p.m. The evening shift
employees of Servco are supervised by Dennis Henry who was
on the AM payroll. The contract between the two companies,
set forth above, provides that AM’s night supervisor, which
applies to Henry, is to remain as the night supervisor and would
be compensated by AM.
Constantine stated that inasmuch as there are no Servco su-
pervisors present during the day, Constantine’s office tells the
day matron to remedy any problems that arise. However, Con-
stantine also stated that Paredes was present each day. Constan-
tine would give him reports of complaints and Paredes followed
up. Giacoia is at the building a couple of times per week. He
stated that if there was a problem in a ladies’ bathroom he or a
member of his staff asks the day matron to take care of the
problem.
Denise Velez, who was a PBS employee hired by Servco,
testified that Henry continued to be her supervisor when she
became employed by Servco. She stated that Henry checked
her work, and that Giacoia did so if he received a complaint and
would tell her to redo certain work. She saw Giacoia in the
building twice per week. She also said that Henry relayed com-
plaints about the employees’ work to Paredes who checked the
work. If she had a complaint with Henry regarding her hours
she told Paredes. She asked Henry for equipment. She was
asked by Henry, Giacoia, and Paredes if she wanted to work
overtime if a coworker was absent. Paredes told Velez that if
she had any problems she should tell Paredes and not Henry.
She saw Henry take out the garbage while employed by Servco.
She did not see him perform cleaning work. Occasionally the
workers finished work early—before their 11 p.m. quitting
time, and Giacoia permitted them to punch out early. Henry
was at the building each day when she worked for Servco, and
she interacted with him about two times per shift.
Velez testified that prior to Thanksgiving, 2001, she asked
Henry if the workers would be paid for the Thanksgiving holi-
day. Henry replied that the company “better” pay his wife Zoila
who was then employed by Servco. Henry then wrote “holiday”
on each time card for Thursday, Thanksgiving Day. Velez was
not paid for that holiday. She stated that she was absent for
work with Servco four to five times due to her son’s illness.
Although she brought in notes from her physician, Henry told
her once to try not to miss any more days of work. He sug-
gested that if her son becomes sick she should have someone
else stay with him.
Velez stated that in the beginning of Servco’s work at the
building, Giacoia was present between once and twice per
week, but later Giacoia increased his visits to the building by 1
more day per week. Paredes was there every other day or if he
was not there his brother Felix would be present. After Paredes
and his brother stopped work, Giacoia was at the building more
often, perhaps four times per week.
After September, 2001, Henry worked from 3 p.m. to 11
p.m. He first checks with building management to see if there
are new orders or new cleaning assignments and any com-
plaints. At 4 p.m. he prepares supplies for the cleaning employ-
ees, gives them the keys to the floors, and identification cards.
He visits each floor to ensure that the work is performed, and
then locks the doors and collects the supplies and keys at the
end of the shift. He stated that if the work was not being done
he told the employees to perform the task they did not do.
Henry stated that if a Servco employee expects to be late or
absent she calls the building manager’s office which then noti-
fies Paredes on his radio. Paredes would then tell Henry to
assign two employees to cover the absent employee’s assign-
ment. If an employee wanted to leave early for an emergency,
she called her supervisor, and he assigned that person’s work to
another employee.
8. The alleged threat to employees regarding Their
immigration status
The complaint alleges that during the hearing, PBS attorney
Stephen Ploscowe threatened employees with an investigation
regarding their immigration status in retaliation for their sup-
port for and activities on behalf of Local 32BJ, and in retalia-
tion for their giving testimony at a Board proceeding, in viola-
tion of Section 8(a)(1) and (4) of the Act.
This allegation relates to testimony of employee Diana
Vasquez. On redirect examination, counsel for the General
Counsel Olga Torres asked Vasquez questions relating to her
receipt of a $25 bonus for returning personal property to a ten-
ant. The evidence was intended to support the credibility of the
witness. Stephen Ploscowe, an attorney for PBS, objected to the
question, and I overruled the objection. Torres then asked to go
off the record which I granted. The following colloquy, as rele-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1032
vant, ensued when the on the record hearing was resumed with
Vasquez on the witness stand:
MR. PLOSCOWE: That now means that I have to get an
investigator and I’ll find out whether she’s here in this
country illegally, does she have ..
MS. BAKER (Union’s attorney): Objection.
(Multiple voices.)
. . . .
MS. TORRES: Your honor, that comment was totally
unnecessary.
JUDGE DAVIS: I think it was uncalled for.
MR. PLOSCOWE: They’re addressed to you..
But these things are improper because on my own case
I could go and I may find nothing. Nothing would pre-
clude me from doing such an investigation.
MS. TORRES: Your Honor, it’s unlawful to threaten
employees with deportation because of their union activ-
ity.
MR. PLOSCOWE: Who’s threatening them?
MS. TORRES: You just did.
B. Analysis and Discussion
1. The supervisory and agency status of Dennis Henry
The complaint alleges that Dennis Henry is a supervisor
and/or agent of AM, PBS and Servco.
Section 2(11) of the Act provides:
The term “supervisor” means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay
off, recall, promote, discharge, assign, reward, or discipline
other employees, or responsibly to direct them, or to adjust
their grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such author-
ity is not of a merely routine or clerical nature, but requires
the use of independent judgment.
Section 2(11) is phrased in the disjunctive. The exercise of
authority requiring independent judgment with respect to any
one of the actions specified is sufficient to confer statutory
supervisory status. Queen Mary, 317 NLRB 1303 (1995). The
party asserting that the individual is a supervisor has the burden
of proving that issue. “The Board has observed that, in enacting
Section 2(11), Congress stressed that only persons with ‘genu-
ine management prerogatives’ should be considered supervi-
sors, as opposed to ‘straw bosses, leadmen . . . and other minor
supervisory employees.’” Chicago Metallic Corp., 273 NLRB
1677, 1688 (1985). The Board has a duty to employees “not to
construe supervisory status too broadly because the employee
who is deemed a supervisor is denied . . . rights which the Act
is intended to protect.” “An employee does not become a su-
pervisor merely because he gives some instructions or minor
orders to other employees. . . . Additionally, the existence of
independent judgment alone will not suffice for the decisive
question is whether [the employee has] been found to possess
authority to use independent judgment with respect to the exer-
cise . . . of some one or more of the specific authorities listen in
Section 2(11) of the Act. In short, some kinship to manage-
ment, some empathetic relationship between employer and
employee must exist before the latter becomes a supervisor for
the former” Chicago Metallic, above, at 1689.
There is no question that Henry does not have the authority
to hire, suspend, lay off, recall, promote, discharge, reward, or
discipline employees. The work he performed while PBS and
Servco performed their respective contracts was essentially the
same.
Henry distributed keys and building supplies to the cleaners
at the start of their shift and collected them at the end of the
shift. He was responsible to ensure that the work was done
properly. He inspected the areas that had been cleaned and
directed the cleaning personnel to redo work that had not been
cleaned properly.
The only authority Henry may be deemed to possess is the
authority to transfer, assign or responsibly to direct employees,
or effectively recommend such action. The employees had their
basic work assignments. Henry occasionally assigned them to
work in addition to those assignments when an employee was
absent. In connection with such assignments he assigned over-
time to those workers. I find, in connection with these duties,
his assignment of daily jobs amounted merely to a routine im-
plementation of assignments already known by the employees.
Generally, the employees cleaned the same floors—those with
DOI clearance cleaned those offices. The fact that he had to
cover for absent employees by the assignment of additional
workers is routine. In this regard, while employed during both
the PBS and the Servco contracts, he reported the absences to
his superiors and they authorized him to obtain additional
workers. His request that employees work overtime could be
accepted or not by those selected.21 Guzman’s request to Henry
for a change of assignment was referred to Sanchez. He did not
become a statutory supervisor simply by implementing the
orders of his supervisors, or giving minor orders to employees
unaccompanied by the exercise of independent judgment. Vic-
toria Partners, 327 NLRB 54, 61–63 (1998).
During Sanchez’ employment by PBS, he told Henry which
employees to ask to work overtime. However, following San-
chez’ departure from PBS in June, 2000, Henry decided who
would work overtime based upon who he knew would do the
“best” job based upon his knowledge of their capabilities. In
Hausner Hard-Chrome of KY, Inc., 326 NLRB 426, 427 (1998),
the Board found that such routine assignments were based on a
skilled leadman’s taking note of employees’ skills and experience
with respect to particular tasks. The same is true here.
The fact that Henry ordered Vasquez to perform heavy work
when she complained that she could not do so because of her
pregnancy, and she performed that work is not evidence of
supervisory authority. There was no showing what may have
occurred had she refused to do that work. He was directing her
to do the work which is similar to other routine orders he gives.
Similarly, when Zoila Gonzalez reported to work on July 12,
2000 following her interview, she told Henry that she could not
mop because of medical problems. Henry went into the build-
ing manager’s office while Gonzalez waited outside. Shortly
thereafter, Henry emerged and told her that if she could not

21 Maria de la Cruz said that Dennis’ request to work extra hours was
voluntary.
AM PROPERTY HOLDING CORP. 1033
mop she could not work, and Gonzales left. Gonzalez did not
know who Henry spoke to. Thus, Henry did not on his own
order Gonzales to work despite her refusal. He had to check
with another person and relayed the message to Gonzales that
she could leave if she refused to do that work.
Similarly, while employed during Servco’s cleaning of the
building his work remained the same. Accordingly, the above
principles relate also to that time period. He told Velez, who
had several absences due to her ill son, that she should “try” not
to be absent, and have someone else stay with her son. He thus
did not warn her that she would be disciplined if she missed
work again. This was friendly advice from someone who had
no authority to take disciplinary action against her or effec-
tively recommend such action.
Regarding leaves of absences, Henry signed employees’
forms. However, he did not approve them. His notation of
“holiday” on time cards indicating that he wanted the workers
paid for Thanksgiving was ignored by Servco management.
The relationship between Henry and the cleaning personnel
could be compared to those of a superintendent in a building
which employed porters. In Cassis Management Corp., 323
NLRB 456, 457 (1997), the Board found that the porters’ work
was repetitive and routine, they knew their cleaning jobs, and
that the superintendent did not assign or direct the employees in
a manner requiring the use of independent judgment.
The General Counsel argues that two additional factors con-
stitute evidence that Henry was a statutory supervisor. First,
that Henry was referred to as “supervisor” by Sanchez and in
memos given to the cleaning personnel, and second, because he
was the only person responsible for the cleaners in the building
during the night shift. It is argued that if he was not deemed a
supervisor, the employees would have no effective supervision.
Both factors are secondary indicia of supervisory status. How-
ever, where, as here, there is no evidence that Henry possessed
any one of the several indicia of supervisory status set forth in
Section 2(11) of the Act, these secondary indicia are insuffi-
cient to clothe him with such status since secondary indicia of
supervisory status are not controlling. Bay Area-Los Angeles
Express, 275 NLREB 1063, 1080 (1985). Here, it is clear that
Henry’s supervisor, Sanchez, was available by telephone, and
indeed Henry communicated with Sanchez concerning re-
placements for absent employees. First Western Bldg. Services,
309 NLRB 591, 603 (1992).
There was disputed testimony regarding whether Henry rec-
ommended the best workers when Servco took over. He testi-
fied that he did, but even then stated that after his recommenda-
tions, those employees were interviewed by a Servco manager
who then selected certain of those people. Further, he stated
that his selections consisted of those who worked on the DOI
floors. First, it is clear that even according to Henry’s testimony
his recommendations were subject to a separate, independent
interview by Servco. In addition, no independent judgment was
necessary to recommend those who had already been screened
by DOI for work on those floors.
I accordingly find and conclude that Dennis Henry was not a
statutory supervisor during his employment at 80–90 Maiden
Lane.
The General Counsel argues that regardless of his supervi-
sory status, Henry was an agent of PBS and AM from April 25,
2000, to June 14, 2001 when PBS and AM jointly employed the
PBS employees, and also was an agent after June 15, 2001
when AM and Servco were joint employers of the employees. I
agree.
Section 2(13) of the Act provides:
In determining whether any person is acting as an “agent” of
another person so as to make such other person responsible
for his acts, the question of whether the specific acts per-
formed were actually authorized or subsequently ratified shall
not be controlling.
The Board applies common law principles of agency in de-
termining whether a person is an agent under the Act. Such
principles incorporate the doctrine of apparent authority.
Apparent authority is created through a manifestation by the
principal to a third party that supplies a reasonable basis for
the latter to believe that the principal has authorized the al-
leged agent to do the acts in question. Thus, either the princi-
pal must intend to cause the third person to believe that the
agent is authorized to act for him, or the principal should real-
ize that this conduct is likely to create such belief. Two condi-
tions, therefore, must be satisfied before apparent authority is
deemed created: (1) there must be some manifestation by the
principal to a third party, and (2) the third party must believe
that the extent of the authority granted to the agent encom-
passes the contemplated activity. Citations omitted. Pratt
Towers, Inc., 338 NLRB 61, 72 (2002).
The test is whether, under all the circumstances, the employ-
ees ‘would reasonably believe that the employee in question
[the alleged agent] was reflecting company policy and speaking
and acting for management.’” Southern Bag Corp., 315 NLRB
725 (1994).
The public characterization of Henry as its supervisor estab-
lishes a “manifestation creating a reasonable basis” for the em-
ployees to have believed that Henry was authorized to speak for
management. Thus, AM, PBS and Servco all referred to Henry
as their supervisor, and Sanchez told employee Vasquez that
Henry was her supervisor. PCC Structurals, Inc., 330 NLRB
868, 870 (2000). The employees also referred to him as their
supervisor. They took orders from him, received assignments
from him, had their work checked by him, submitted requests
for leave to him, and he initialed their time cards and gave them
their paychecks. They also asked him for job applications for
Servco when PBS was terminated.
Henry was a conduit of information from management to the
employees. Shortly before Servco began servicing the building,
Henry told the PBS employees that Servco was replacing PBS as
the cleaning contractor, and directed them to remove their per-
sonal belongings because the space was needed for new employ-
ees. He also gave Maria Gonzales forms to complete when she
began work. Victor’s Café 52, 321 NLRB 504 fn. 1 (1996).
Henry’s comments were similar to those of management. It
thus appeared to the employees that he was a spokesman for
management’s view of the Union. Hausner, above, at 428. It is
true that, as noted by PBS, Henry told employee Elsa Andrade
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1034
that he wanted to join Local 32BJ but could not due to his posi-
tion with PBS. That comment, however, does not establish that
Henry would not have made an anti-union comment. Rather, it
tends to prove that he regarded himself as a “company man”
who, because of his status or perceived status with PBS, believed
that he was obligated to adhere to company views on the subject
of unionization regardless of his ability to join the Union.
I accordingly find that given the position in which the Re-
spondents had placed Dennis Henry, it was reasonable for the
cleaning employees to believe that he reflected company policy
and acted for management when he made the comments found
below to be unlawful. Accordingly, I find that his conduct is
attributable to the Respondents. Great American Products, 312
NLRB 962, 963 (1993).
2. The alleged refusal to hire and consider the
Clean-Right employees
a. Legal principles
The complaint alleges that AM and PBS unlawfully refused
to consider for hire and to hire the former Clean-Right employ-
ees when they took over the operations of 80–90 Maiden Lane
on April 25, 2000.
A new owner of an enterprise is not obligated to hire any of
its predecessor’s employees, but may not refuse to hire the
predecessor’s workers solely because they were represented by
a union or to avoid having to recognize a 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). As
the Board stated in U.S. Marine Corp., 293 NLRB 669, 670
(1989):
The Board has held that the following factors are among those
that establish that a new owner has violated Section 8(a)(3) in
refusing to hire employees of the predecessor: substantial evi-
dence of union animus; lack of a convincing rationale for re-
fusal 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 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 suc-
cessorship doctrine.
The Board has also established new standards regarding re-
fusals to hire:
To establish a discriminatory refusal to hire violation, the
General Counsel must show: (1) that the respondent employer
was hiring, or had concrete plans to hire, at the time of the al-
leged unlawful conduct; (2) that the applicants had experience
or training relevant to the announced or generally known re-
quirements of the positions for hire; and (3) that antiunion ani-
mus contributed to the decision not to hire the applicants.
Once the General Counsel has made this showing, the burden
shifts to the employer to show that it would not have hired the
applicants even in the absence of their union activity or affilia-
tion. Tim Foley Plumbing Service, 337 NLRB 598, 599
(2002); FES, 331 NLRB 9, 12 (2000).
In order to establish a discriminatory refusal to consider em-
ployees for hire, the General Counsel must show that (1) the
respondent excluded applicants from a hiring process; and (2)
that antiunion animus contributed to the decision not to con-
sider the applicants for employment. Once this is established,
the burden shifts to the respondent to show that it would not
have considered the applicants even in the absence of their
union activity or affiliation. FES, above at 15.
The following analysis will involve both theories of the
complaint. First, it is clear that AM was hiring for certain day-
time positions, and that PBS was hiring for its new cleaning
contract at 80–90 Maiden Lane. PBS interviewed and hired for
cleaning positions at the time it assumed cleaning responsibili-
ties for the building. It is also clear that the applicants, when-
ever they applied, possessed the experience or training relevant
to the positions sought. They had worked in the building imme-
diately prior to the takeover by AM and PBS.
b. The hire for daytime positions by AM
As set forth above, on April 26, AM transferred three build-
ing service workers from other buildings which it managed to
work in daytime positions of porter and elevator operator. It
did not hire and apparently did not consider for hire the daytime
Clean-Right employees Nehat Borova, elevator operator, Maria
Hernandez, matron, and porter Renier Sabajo. There can be no
question that AM was aware of at least two of those workers
since Cunningham conceded seeing Borova and Hernandez
when he visited the building in February, 2000.
The explanation offered by AM for not considering or hiring
the former Clean-Right workers essentially is that (a) it did not
want to accept the Local 32BJ contract (b) it expected the em-
ployees represented by the Union to leave and (c) it sought to
employ outside subcontractors to clean the building. Its first
two arguments support a finding of unlawful motivation in
refusing to hire or consider them for hire. Its third argument is
undermined since AM did not employ an outside service for the
daytime positions. Rather, it directly employed those three men.
Indeed, it could have considered the former Clean-Right
workers. In fact, on the day the three AM workers were trans-
ferred into the building Constantine made a list of the inquiring
workers, the purpose of which was to consider them for jobs.
Nevertheless, neither Constantine nor Cunningham called any
of the workers on the list for a job. In fact, the day before, April
25, Constantine told the Clean-Right workers that the new
company was coming in with its own staff.
I find that, inconsistent with its stated purpose of contracting
out its cleaning work, AM hired its own employees for work in
the building It could have hired or considered for hire the for-
mer Clean-Right employees but admittedly did not want to
accept the Local 32BJ contract and expected them to leave the
building.
Based upon the above, I find and conclude that AM had a
discriminatory motive in refusing to hire or consider for hire
the former Clean-Right employees for work at 80–90 Maiden
Lane. E.S. Sutton Realty Co., 336 NLRB 405(2001).
AM PROPERTY HOLDING CORP. 1035
c. The hire by PBS
By the time union-represented workers sought jobs, none
were left. It is clear, and I find, that AM and PBS “took steps to
ensure that incumbent cleaning workers could not make timely
applications for work as in-house employees, in order to avoid
hiring union labor.” E.S. Sutton Realty Co., supra at 408.
The former Clean-Right employees “had the experience and
training relevant to the positions, and antiunion animus was a
motivating factor in the decision not to hire them.” E.S. Sutton,
ibid.
“The predecessor employees were not notified until just be-
fore [PBS] took over the contract and new employees had al-
ready been hired that their services were to be terminated.”
Systems Management, 292 NLRB 1075 fn. 2 (1989).
The Respondents’ contention that the employees and the Un-
ion were aware of the “rumors” of the building’s impending
sale and were somehow negligent in not inquiring as to the
identify of the new owner is not the point. The question to be
answered is the motivation for not hiring the former cleaning
workers. An objective examination of the evidence compels the
conclusion that it was for discriminatory reasons.
The speed with which the hiring took place is significant.
PBS official Francis was told to begin cleaning the building the
very first evening that the contract between AM and PBS was
signed. Francis had been told that the building would be empty
– without staff, and that he should bring his own workers in.
Francis assured Wasserman that he would do “the best he
could” but the work may not be adequate if less than a full
complement of staff was employed that night. Francis described
his Regional Supervisor Sanchez as “scrambling to get staff.”
Considering the immediate need for workers, and PBS’ in-
terest in performing its assignment well, it would appear that it
would first look at the former employees who worked in the
building as a source of competent help. The fact that it did not
is some evidence of a discriminatory motive. Daka, Inc., 310
NLRB 201, 205 (1993); Systems Management, 292 NLRB
1075, 1097 (1989).
PBS gave the impression that the decision to employ its ser-
vices was immediate and sudden, thereby necessitating a last-
minute effort to obtain personnel. This would seem to support
its argument that it had to acquire staff in great haste. However,
it is significant, that despite PBS’ alleged immediate need for
workers, Sanchez had been interviewing prospective workers,
as early as March 15, six weeks prior to the start-up and imme-
diately put them to work on April 25. Accordingly, it is clear
that PBS was preparing for work at 80 Maiden Lane and build-
ing a supply of employees ready to begin work. During the
period of time that it was interviewing an outside source of
help, it could have considered the in-house workers who were
then cleaning 80 Maiden Lane. That it did not shows a deter-
mined refusal to consider them for hire and a refusal to hire
them. Daufuskie Island Club & Resort, 328 NLRB 415, 420
(1999).
The former Clean-Right employees would seem to fit Fran-
cis’ criteria of those it would hire: people willing to work who
are looking for work. In this connection, there can be no doubt
that PBS knew that they met its criteria in selecting workers for
its staff. Sanchez, who was then “scrambling” for staff, was
present on April 25, the evening of the takeover, at the time that
the Clean-Right employees were terminated. The other criterion
sought by Francis was that employees be willing to be trained.
Here the former workers were already trained and working in
the very premises that new employees were being hired for.
Another criterion was that PBS values “loyalty” and those who
“stay at the job” since there is much turnover in the industry.
Here, the Clean-Right employees would be considered loyal,
many having worked during the tenure of various cleaning
companies for many years in the building.
In addition, DeArmas told Hernandez that he wished PBS
would keep the crew since they seemed to be a “great crew”
and the building was in bad shape. Similarly, he told Matos that
he wanted to have workers like them. He concluded that the
interviewees were the kind of people with the “right kind” of
experience that PBS wanted, including much experience in the
building. In contrast, the initial people hired by PBS had no
experience at 80 Maiden Lane.
PBS correctly argues that the training period for cleaning
personnel would necessarily be short given the routine, uncom-
plicated nature of their duties. It also contends that the fact that
these applicants had great experience in the building should not
be given great weight since they could be replaced by workers
who could learn the job very quickly. Theoretically that may be
the case but in looking at PBS’ practice in other buildings when
it assumed the cleaning responsibilities there, it retained the
current workers in its other buildings based upon their experi-
ence in those buildings. Waterbury Hotel Mgmt v. NLRB, 314
F.3rd 645 (D.C. Cir. 2003);Weco Cleaning Specialists, 308
NLRB 310, 311 (1992). Thus, Gorana decided to hire the for-
mer Golden Mark employees because they were experienced in
the Olmstead buildings. I am aware that the route crews did
more specialized work, but nevertheless, the current cleaning
employees who did routine cleaning work were also retained at
those locations.
A serious question arises, therefore, that given the practice of
PBS in retaining the current cleaning staff at other locations at
about the same time it took over 80 Maiden Lane, and its inter-
est in loyalty and having people remain on the job, why did
PBS not immediately retain the current cleaning personnel at 80
Maiden Lane. I find that the reason was that it sought to avoid a
bargaining obligation with Local 32BJ. Departing from its
usual hiring practice can be evidence of antiunion motive.
Additional evidence of an unlawful motive is the fact that
when PBS was hiring new employees and transferring its other
employees into the building, it had on file the applications of
the former Clean-Right. An extended interview process was
conducted with them. They filed applications on May 2, were
interviewed on May 10, and offered jobs nearly two months
later, on July 5. Significantly, nearly all those jobs involved
locations other than 80–90 Maiden Lane.
Michael Francis, the chief executive of PBS, was well aware
that hiring a majority of its employees who were Clean-Right
workers would result in an obligation to bargain with the Un-
ion. There was evidence that his son, Robert, handled the nego-
tiation of the PBS contract with AM, and that Robert was not
aware of this legal principle, nevertheless Robert was aware,
prior to his negotiation for 80 Maiden Lane, of the litigation
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1036
before the Board involving PBS and the Union. That litigation
involved the principles of successorship and refusal to hire
predecessor employees in order to avoid a bargaining obliga-
tion with this same Union. Planned Building Services, 330
NLRB 791 (2000); Planned Building Services, 318 NLRB 1049
(1995).
d. More onerous application procedures and the hiring
The complaint alleges that in about early May 2000, PBS
unlawfully required that the former Clean-Right employees
undergo a more onerous application and interview process for
positions at 80–90 Maiden Lane and at other locations.
The General Counsel claims that in order to obtain applica-
tions the prospective employees were “forced” to travel to Fair-
field, New Jersey, PBS’s headquarters, when it was distributing
applications at locations in lower Manhattan, and further that
they were required to return to New Jersey for interviews even
though PBS was interviewing applicants in lower Manhattan at
that time.
PBS did not suggest or require that the applicants go its New
Jersey office for applications. The suggestion was first made by
Union delegate Kertestan who recommended that they travel to
New Jersey to obtain the applications. In fact, the PBS recep-
tionist offered to mail an application to Zoila Gonzales but she
volunteered to come to the office to pick it up since she lived in
New Jersey. Thereafter, on their own, the former Clean-Right
employees traveled to New Jersey on May 2 and obtained ap-
plications there.
I find, however, that PBS could have given applications to
the former Clean-Right employees at the building. Thus, San-
chez was present on April 25 when they were terminated, and
the following day, the workers left their names and addresses
with Constantine and Cunningham who could have given that
list to Sanchez or other PBS officials. This is in contrast to the
distribution, in late May, by PBS of applications at the respec-
tive buildings to current employees of Golden Mark which it
retained to work at the Olmstead buildings.
I further find that the interviews could have been conducted
in Manhattan which admittedly would have been easier for
DeArmas and the applicants, and also consistent with its usual
hiring procedure. In fact, DeArmas noted he was “rarely” in-
volved in the interview process, and that some of the prospec-
tive employees had “problems” traveling to New Jersey for the
interview. Nevertheless, DeArmas requested that the interviews
be held in New Jersey. This is also in contrast to the interviews
for the Olmstead buildings, which was done in late May at 80
Maiden Lane, and also to the interviews, conducted by Sanchez
at lower Manhattan buildings, of non-Clean-Right employee-
applicants for positions at 80 Maiden Lane. I accordingly find
and conclude that, as alleged in the complaint, the former
Clean-Right employees were subject to more onerous applica-
tion procedures and interview requirements.
The interviewing process for the former Clean-Right em-
ployees was apparently given special attention. Thus, DeArmas
informed Robert Francis that they had applied, and asked for
instructions on how to proceed. This is in contrast to Sanchez’
interviews of non Clean-Right applicants apparently without
such high intervention. Further, DeArmas’ interviews of those
people was tainted with his belief that they were applying for
work but had a “different agenda”—meaning that they ap-
peared to be applying in good faith but possibly had been sent
by the Union just to see if they would be hired even though
they had no intention of accepting a job with much lower pay
than their prior job.
Hiring procedures which depart from a company’s usual
practice may be evidence of antiunion motive. Waterbury Hotel
Management v. NLRB, 314 F.3d 645 (D.C. Cir. 2003); Gallo-
way School Lines, 321 NLRB 1422, 1424 (1996). Similarly, an
application process which is designed to frustrate attempts of
union-represented employees to obtain jobs is also evidence of
union animus. Capital Cleaning Contractors, 322 NLRB 801,
807 (1966).
On June 1, PBS took over the cleaning responsibilities for
the Olmstead buildings and distributed job applications to the
Golden Mark employees at the Olmstead buildings when it
began servicing those buildings. Gorana decided to hire the
former Golden Mark route crew for PBS because they were
experienced in all the Olmstead buildings.
In addition, beginning June 1, the existing cleaning person-
nel at the Olmstead buildings were retained and further, at that
time, an additional 21 new hires were made by PBS for those
locations. Earlier, on May 10, former Clean-Right employees
Gonzales, Matos, and Zavala were told by DeArmas that he
expected PBS to obtain new accounts in early June and would
contact them. Nevertheless, not only were they not contacted
for the positions at 80 Maiden Lane, they were not called for
the openings at the Olmstead buildings which were staffed in
early June.
As set forth above, 15 non-Clean-Right people were hired
for or transferred into 80 Maiden Lane during the period fol-
lowing the filing of applications by the Clean-Right employees
on May 2 through July 5 when offers of employment were
made to them. Clearly, the Clean-Right employees could have
been offered employment at 80 Maiden Lane. They were ex-
perienced in the building being staffed and met all the require-
ments set forth by principals of PBS for employment. However,
their one disabling attribute was their membership in Local
32BJ. Given the above facts, it was inevitable that they would
not be offered work at 80 Maiden Lane.
The former Clean-Right employees were first offered jobs in
July 5. Two of the applicants, Zoila Gonzalez and Reinier Sa-
bato, were offered jobs at 80 Maiden Lane. The other appli-
cants were offered jobs at different locations.
As set forth above, one week after the initial offers of hire
were made, DeArmas sent an internal memo asking that Mi-
chael Francis be made aware of the offers of work to the former
Clean-Right personnel and asking that the budget department
make a note as to the “extra personnel” so it does not appear
that the site is “over hiring on purpose.” The note added that
DeArmas would not “continue to overhire” since he had au-
thorization to hire one worker in each of five buildings, includ-
ing Maiden Lane.
The import of this memo is unclear. The General Counsel
ascribes a sinister purpose—a scheme to overhire in anticipa-
tion of the applications from the former Clean-Right employ-
ees, and a plan to allocate the hire of the former Clean-Right
AM PROPERTY HOLDING CORP. 1037
employees to buildings other than 80 Maiden Lane. At the
least, it demonstrates that PBS hired more people than needed,
“extra personnel”, possibly to thwart the Clean-Right appli-
cants. It should be noted that at the interviews DeArmas told
the applicants that there were no openings at 80 Maiden Lane.
I find, based on the above, that PBS refused to hire and re-
fused to consider for hire the former Clean-Right employees in
violation of Section 8(a)(1) and (3) of the Act. As to the refusal
to consider for hire, I find that the General Counsel has made
the showing pursuant to Tim Foley Plumbing Service, and that
AM and PBS have not shown that they would not have hired
the applicants even in the absence of their union activity or
affiliation.
3. Joint employer status
a. Legal principles
The complaint alleges that AM and PBS are joint employers,
and that AM and Servco are joint employers. The Respondents
deny such status:
In determining whether a joint employer relationship exists . . .
the Board analyzes whether putative joint employers share or
co-determine those matters governing essential terms and con-
ditions of employment. The essential element in this analysis is
whether a putative joint employer’s control over employment
matters is direct and immediate. Airborne Express, 338 NLRB
597 fn. 1 (2002).
The basic principle of joint employer status was set forth in
Laerco Transportation, 269 NLRB 324 (1984), where the
Board stated:
To establish joint employer status there must be a showing
that the employer meaningfully affects matters relating to the
employment relationship such as hiring, firing, discipline, su-
pervision, and direction.
In Clinton’s Ditch Co-Op Co. v. NLRB, 778 F.2d 132, 138–
139 (2d Cir. 1985), the Second Circuit Court of Appeals
weighed the following five factors in considering whether a
joint employer relationship existed: Hiring and firing; disci-
pline; pay, insurance and records; supervision; participation in
the collective-bargaining process. The appropriate time period
in analyzing whether employers are joint employers is the pe-
riod surrounding the unfair labor practices. Whitewood Mainte-
nance Co., 292 NLRB 1159, 1161 (1989).
b. Joint employer status of AM and PBS
i. Hiring and firing of employees
Paul Wasserman of AM told Robert Francis that he should
consider Dennis Henry for a “supervisory role” for the build-
ing, and the contract contains provisions reflecting that Henry
was hired by PBS at the “request” of AM, which paid the dif-
ference between Henry’s prior wage rate at AM and the wage
PBS was then offering. In addition, when Henry voiced his
unhappiness at the wages paid by PBS, Wasserman told him his
pay would be raised and directed Francis to do so. Wasserman
also told Henry that he would continue to receive the same
holidays, vacation and other benefits he enjoyed while at AM.
The Board has held that a putative joint employer’s playing a
“direct role” in creating a supervisory position and hiring an
individual to fill that position was evidence of the putative joint
employer’s role in personnel matters. Aldworth Co., Inc., 338
NLRB 137, 140 at fn. 20 (2002). It should be noted that in that
case the finding of joint employer status was established by
extensive involvement by the putative joint employer in the
“management process” relating to the employees involved.
Although I find that Henry was not a statutory supervisor, it is
clear that both AM and PBS considered him as a person who
exercised supervisory authority over the evening employees of
PBS, and directed their activities. Aldworth is therefore appli-
cable since AM played a direct role in creating a supervisory
position for Henry and suggested that PBS consider him for
that job.
Further, when Henry became dissatisfied with the wages and
benefits paid to him by PBS, he complained to AM official
Wasserman who first directed PBS to grant him a paid holiday,
and then later transferred him to the AM payroll. Thereafter,
Henry continued to supervise and direct the PBS employees.
This demonstrates that AM had significant control over PBS
employee Henry to the extent that it effectively and immedi-
ately removed a PBS employee from that payroll and from PBS
supervision and transferred him to the AM payroll, where he
continued to direct the PBS employees.
PBS argues further that Henry’s return to the AM payroll
was an “administrative convenience” enabling him to receive
the AM wage and benefit package, with the only change upon
his return to the AM payroll being his uniform. He performed
the same work after his return to the AM payroll as he had be-
fore. PBS thus contends that at all times when PBS cleaned 80
Maiden Lane, Henry represented the interests of PBS only. The
evidence establishes more, however. First, the recommendation
by AM that PBS consider Henry as its supervisor, and then his
transfer back to its payroll shows that AM’s “control over em-
ployment matters is direct and immediate” and that it “shared
or co-determined those matters governing essential terms and
conditions of employment.”
In addition, the contract between AM and PBS provides that
the employees hired by PBS “shall be subject to the initial ap-
proval of” AM. In W.W. Grainger, Inc., 286 NLRB 94 (1987),
the contract stated that Grainger “shall reserve the right to ap-
prove the employment of each driver at the time of assignment
to its service and thereafter have the right to require Rentar to
remove any such driver and/or to substitute another driver or to
transfer any driver to other work.” The Board cited that factor
among other factors supporting joint employer status. See M.K.
Parker Transport, Inc., 332 NLRB 547, 549 (2000).
The General Counsel cites Zoila Gonzalez’ experience as an
example of AM’s exercise of its contractual right to approve
employees. Upon reporting to work on July 12, 2000 following
her interview with PBS, Gonzalez refused to mop because of
medical problems. Dennis Henry went to the building man-
ager’s office and later informed her that if she would not mop
she could not work. Although there was no evidence as to who,
if anyone, Henry spoke to at that time, a fair inference may be
drawn that AM building manager Constantine or his designee
made the decision to present the ultimatum to Gonzales that she
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1038
must mop or else not be hired. This, too, shows AM’s involve-
ment in the hiring process of PBS employees.
The contract between AM and PBS provides that the price
that PBS charges for its services is fixed for the first year of the
contract. However, following the first year, its price may in-
crease or decrease “to reflect adjustments in the direct out-of-
pocket costs of PBS for the performance of the services pro-
vided herein as a result of changes in wage and/or fringe benefit
costs pursuant to applicable collective bargaining agree-
ments….” The General Counsel relies on this provision to ar-
gue that this clause establishes that AM agreed to finance any
increase in the wages of PBS employees, citing Hoskins Ready-
Mix Concrete, 161 NLRB 1492, 1493 (1966). I do not agree. In
Hoskins, unlike here, the putative joint employer, Hoskins,
contracted with General to run the business of Hoskins.
Hoskins agreed to advance operating expenses and payroll
funds to General, which then disbursed them. This is far differ-
ent than the situation here. PBS is not running AM’s business.
The change in cost due to a collective-bargaining agreement is
a typical arrangement in a subcontracting situation where the
general contractor agrees to a price increase in the event of a
raise in costs to the subcontractor, and does not constitute evi-
dence of joint employer status. Goodyear Tire & Rubber Co.,
312 NLRB 674, 678 (1993).
It should also be noted that on April 26, AM official Con-
stantine told the terminated workers that no positions were
available with the new company, but that they should put their
names on a list and if jobs became available he would call. This
illustrates that AM involved itself in the hiring process for
PBS—and spoke for PBS with respect to its staffing needs.
PBS correctly argues that there was no interaction between
the former Clean-Right employees and PBS supervisors or
officials until May 2 when they filed applications. The reason
for this lack of interaction was PBS’ deliberate refusal to have
anything to do with them until that time. This is evident in the
fact that Sanchez was present on April 25 when PBS took over
but did not communicate with them as to their desire to con-
tinue to be employed at the building for PBS. Further, even
though applications were filed, PBS initially hired non-former
Clean-Right employees to fill positions at 80 Maiden Lane.
As set forth above, Jorge Cea was transferred to 80 Maiden
Lane by PBS and worked as a PBS employee performing gen-
eral cleaning tasks, operating the freight elevator and moving
furniture. He was supervised by AM official Constantine, who
told him that he would be working at 80 Maiden Lane for a few
weeks. Cea was terminated from the building by Constantine,
not by any PBS official. This demonstrates AM’s involvement
with PBS employees.
The above facts support a finding that AM and PBS are joint
employers. Certain of the above incidents occurred at the time
of the unfair labor practices on April 25—the time that the for-
mer Clean-Right employees were refused hire or consideration
for hire: The contract between AM and PBS providing that PBS
hires are subject to the initial approval of AM; the creation of
Henry’s supervisory position by PBS at the recommendation of
AM; the direction by AM that his pay be raised; and Constan-
tine’s advice to the former Clean-Right employees that no posi-
tions with PBS were available.
ii. Direction of the work
Extensive daily supervision and “considerable direct in-
volvement in the supervision of unit employees” have been
cited, among other factors, in a finding of joint employer status.
Quantum Resources Corp., 305 NLRB 759, 760 (1991).
Diana Vasquez worked as the day matron at 80 Maiden
Lane. The majority of her work hours were performed before
Dennis Henry came on duty. AM official Constantine or AM
employee Guerrero told her to perform tasks that were not part
of her regular work duties such as cleaning a new floor that was
just rented or cleaning the elevators. They also asked her to re-
do work that was not done properly.
PBS argues that the occasional assignment of work by AM
to Vasquez was insufficient to create a joint employer relation-
ship, particularly where “the significant functions of hiring and
firing… the granting of vacations or leaves of absences, were
retained by” PBS. Southern California Gas Co., 302 NLRB
456, 462 (1991). Indeed, the Board has noted that “an employer
receiving contracted labor services will of necessity exercise
sufficient control over the operations of the contractor at its
facility so that it will be in a position to … see that it is obtain-
ing the services it contracted for. It follows that the existence of
such control, is not in and of itself, sufficient justification for
finding that the customer-employer is a joint employer of its
contractor’s employees. Southern California, above, at 461.
However, it is significant that no PBS supervisors were em-
ployed during the daytime when Vasquez worked, and that
Vasquez was directed by AM supervisors or employees.
As set forth above, Henry’s job was ensuring that the clean-
ers did their work properly. He checked their work, and asked
them to re-do their work. It is clear that when Henry was on the
payroll of AM, beginning on August 1, 2000, he supervised
their work.
Employees calling in sick called Henry, and those who be-
came sick while at work informed him. He reassigned their
work to other employees who received overtime pay. He se-
lected the workers and then reported to Gorana that an em-
ployee was absent and he found replacements. The authoriza-
tion of overtime is a “strong factor” in establishing joint em-
ployer status. Computer Associates, International, Inc., 332
NLRB 1166, fn. 2 (2000). In that case, the Board found a joint
employer relationship where there was an “ongoing, close and
substantial supervision of the employees by the respondent’s
managers.” The putative supervisor assigned work, made daily
tours of the facility and wrote up deficiencies in work orders.
In Syufy Enterprises, 220 738, 740 (1975), the Board stated,
in finding a joint employer relationship between a theater
owner and a janitorial contractor, that the theater managers
exercised “actual control over work activities, personnel prob-
lems and even contract scope difficulties arising at the thea-
ters.” The Board noted that “while janitorial tasks may be rou-
tine they often also are of such a nature that they require a me-
ticulous attention to detail and vigilant if not continuous super-
vision.” Here, too, it appears that the tenants made complaints
about the work done which required more than superficial su-
pervision of the cleaners’ work. Henry’s specific job was to
check their work and make sure that it was done correctly.
AM PROPERTY HOLDING CORP. 1039
AM and PBS argue that at the time PBS began cleaning the
building, in April, 2000, the two companies were separate enti-
ties and not joint employers. They state that inasmuch as the
General Counsel cannot prove that they were joint employers at
the beginning of their relationship, the strategy of the complaint
is to find that they became joint employers sometime later and
relate back that status to the outset, thereby finding joint liabil-
ity for the failure to hire the former Clean-Right employees.
Specifically, AM argues that even if it is found that it and PBS
became joint employers of Dennis Henry when he returned to
the AM payroll in August, 2000, he was their only joint em-
ployee, and AM cannot be liable for any alleged unfair labor
practice which occurred prior to August, 2000, including the
alleged failure to hire employees which took place in April,
2000. Moreover, according to AM and PBS, even if Henry is
considered a joint employee as of August, 2000, his function in
the building is not sufficient to establish a joint employer rela-
tionship since he exercised no supervisory functions but was
merely present to ensure that AM obtained the services it paid
for. Southern California Gas Co., 302 NLRB 456, 462 (1991).
Although Henry did not exercise supervisory authority in
behalf of AM over the PBS employees for the first 2 months of
his employment at 80 Maiden Lane, he nevertheless did so
beginning on August 1 as an employee of AM. This 2-month
period is not so remote in time to negate a finding of joint em-
ployer status. This is particularly true inasmuch as it is obvious
that the failure to hire or consider for hire the Clean-Right em-
ployees continued through at least July when the former Clean-
Right employees were first offered jobs by PBS. Accordingly,
evidence of joint employer status was concurrent with the un-
fair labor practices.
I accordingly find and conclude that AM and PBS are joint
employers and that AM meaningfully affects matters relating to
the employment relationship such as hiring, firing, discipline,
supervision, and direction of the employees of PBS. Laerco,
above.
c. AM and Servco
As set forth above, Henry suggested to Servco the names of
PBS employees who he believed were the best workers. Al-
though I found that Servco independently conducted interviews
of those employees, it appears that Henry played some role in
at least their initial interview by Servco. Further, upon em-
ployee Velez’ complaint to Servco that Servco was offering to
pay her less than she had been receiving with PBS, Henry sug-
gested to Servco officials Giacoia and Paredes that the workers
should be paid at their old rate. That ultimately was done.
In addition, Henry, as an AM employee, continued to super-
vise the Servco night crew as he had the PBS employees. The
contract between AM and Servco provides that AM would
supervise the Servco workers. During the day, AM official
Constantine continued to supervise Servco’s day matron as he
had the matron employed by PBS.
I accordingly find and conclude that AM and Servco are
joint employers and that AM meaningfully affects matters relat-
ing to the employment relationship such as hiring, firing, disci-
pline, supervision, and direction of the employees of Servco.
Laerco, above.
d. Joint liability of the joint employers
AM and PBS argue that, assuming that they are found to be
joint employers, each may not be held liable for the other’s
alleged violations of the Act, because any unfair labor practices
committed by the other was outside the scope of the joint em-
ployer relationship and was committed without knowledge by
the other. Southern California Gas, above, at 462: Capitol EMI,
311 NLRB 997, 999–1000 (1993).
In Capitol EMI, above, at 1000, the Board considered the
question of whether one joint employer may be held liable for
the unfair labor practices of another. It reasoned that it would
be proper to hold each joint employer liable if they had a mu-
tual interest in warding off union representation from the jointly
managed employees particularly where each joint employer has
representatives at the worksite, even if only on an occasional
basis, and shares the supervision of the jointly employed em-
ployees. In such circumstances, each joint employer would be
in a position to learn of its co employer’s unlawful actions. The
Board adopted the following burdens of proof:
The General Counsel must first show (1) that two employers
are joint employers of a group of employees and (2) that one
of them has, with unlawful motivation, discharged or taken
other discriminatory actions against an employee or employ-
ees in the jointly managed work force. The burden then shifts
to the employer who seeks to escape liability for its joint em-
ployer’s unlawfully motivated action to show that it neither
knew, nor should have known, of the reason for the other em-
ployer’s action or that, if it knew it took all measures within
its power to resist the unlawful action.
The General Counsel argues that AM had a “mutual interest”
with PBS in avoiding having unionized employees in the build-
ing, and that AM and PBS acted in furtherance of that interest.
The General Counsel further asserts that AM participated in the
discrimination by determining that it would not hire any of the
Clean-Right employees, and on April 25 and 26, misleading
those employees who inquired about jobs of AM’s officials.
AM knew that if PBS hired a majority of its employees who
had previously been employed by Clean-Right, that PBS would
be obligated to bargain with the Union. AM did not consider
any of the former Clean-Right employees for positions with it
even though it directly hired three employees to perform the
same work done by the prior workers.
Further, the General Counsel argues that AM assisted PBS in
its efforts to evade a bargaining obligation with the Union by
interrogating and threatening employees and promising them
higher wages.
In addition, the General Counsel asserts that even if AM did
not know of the alleged unlawful refusal to hire the former
Clean-Right employees, the evidence establishes that it should
have known of such conduct. It asserts that the picketing and
distribution of flyers in front of 80 Maiden Lane should have
put AM on notice that the Clean-Right employees protested the
refusal by PBS to hire them, and sought work with PBS. Given
this publicity, the General Counsel argues that AM had an obli-
gation to inquire about the employees’ claims and would there-
fore have become aware of the alleged unlawful conduct by
PBS. Action Multi-Craft, 337 NLRB 268, 269 (2001). The Gen-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1040
eral Counsel finally argues that AM did not meet its final bur-
den, assuming it knew of PBS’ unlawful conduct, to resist such
action since it participated in the unlawful conduct.
I agree with the General Counsel’s arguments. I do not be-
lieve that AM was an innocent bystander in the broader refusal
to hire and refuse to consider for hire the former Clean-Right
employees. In the first instance it refused to recognize Local
32BJ or hire any Union represented employees.
For similar reasons, Servco as the joint employer of AM,
was not an innocent in its “partnership” with AM to staff the
building. Dennis Henry, an AM employee, told the inquiring
striking PBS employees that Servco was bringing in its own
workers and that they did not want anyone from the strike.
Similarly, Constantine told them that he could not do anything
for them because of their participation in the strike. Servco
official Giacoia’s threat to immediately fire anyone if they
spoke to the Union is evidence of Servco’s antiunion animus.
4. The successorship issue
The complaint alleges that the following actions establish the
successorship of AM and PBS to the Witkoff Clean-Right op-
eration at 80 Maiden Lane: (a) beginning on about April 25,
2000, AM and PBS took over building maintenance services at
80 Maiden Lane in a basically unchanged form and manner (b)
AM and PBS through Cunningham, informed the 80-90 Maiden
Lane employees that they would not be hired to work at that
building (c) but for the conduct set forth in (b) above, AM and
PBS would have employed, as a majority of its employees at
80–90 Maiden Lane, individuals who were previously employ-
ees of Witkoff and Clean-Right.
“A mere change in ownership of the employing business en-
terprise does not itself absolve the new owner from the obliga-
tion to recognize and bargain with the labor organization that
represented the employees of the former owner.” Premium
Foods, Inc., 260 NLRB 708, 714 (1982). In determining
whether there is substantial continuity between the predecessor
business and the new employer sufficient to obligate the new
employer to bargain, assuming a majority of its new employees
had been represented or, as alleged here, but for the alleged
unfair labor practices, a majority of its new employees would
have been hired from those represented by the Union, the Board
looks at the following factors: (a) there has been substantial
continuity of business operations (b) the new employer uses the
same plant with the same machinery, equipment and production
methods; and (c) the same or substantially the same employees
are used in the same jobs under the same working conditions
and supervisors to produce the same product or provide the
same service. This approach is primarily factual in nature and is
based on a consideration of the totality of the circumstances in
any given situation.” M.K. Parker Transport, Inc., 332 NLRB
547, 549 (2000).
Here, the Clean-Right employees were replaced by AM and
PBS employees performing essentially the same work in the
same building in the same manner with no hiatus in operations.
Having concluded that AM and PBS violated Section 8(a)(3)
of the Act by refusing to hire or consider the former Clean-
Right employees for employment at 80-90 Maiden Lane, the
question of whether they violated Section 8(a)(5) of the Act by
refusing to bargain with Local 32BJ turns on whether they are
successor employers to Clean-Right.
The threshold test developed by the Board and approved by
the Supreme Court in NLRB v. Burns Security Services, 406
U.S. 272 (1972) and Fall River Dyeing v. NLRB, 482 U.S. 27
(1987) for determining successorship is: (1) whether a major-
ity of the new employer’s work force in an appropriate unit
are former employees of the predecessor employer; and (2)
whether the new employer conducts essentially the same busi-
ness as the predecessor employer. Sierra Realty Corp., 317
NLRB 832, 835 (1995).
“It is well settled that where . . . an employer is found to have
engaged in a discriminatory refusal to hire its predecessor’s em-
ployees, the Board infers that all the former employees would
have been retained, absent the unlawful discrimination. Under
such circumstances the Board presumes that the union’s majority
status would have continued.” Sierra Realty, above, at 835.
The complaint alleges that on April 25, 2000, Cunningham
informed the workers that “they would not be hired to perform
building service and maintenance work at 80–90 Maiden
Lane,” and that “but for” such conduct, PBS and AM would
have employed, as a majority of its employees at 80–90 Maiden
Lane, the former Clean-Right employees. AM and PBS allege
that no such conversation occurred. As set forth above, on April
25, Constantine told the workers that the new contractor had its
own workers, and the following day told them that no positions
with the new company were available. On April 25, Cunning-
ham told them that no applications were available. Regardless
of whether Cunningham precisely told them that they would not
be hired, the message, given by both officials was clear—the
new company had its own workers and therefore there were no
openings for them, and no applications were then available.
This was in fact the case—PBS rushed to hire and transfer other
workers into the building, and in fact continued to hire from
those sources even though the former Clean-Right workers had
applied for work, were available for work, and met the hiring
criteria established by its top official, Robert Francis.
PBS further argues that it could not have been a successor be-
cause a majority of the Clean-Right employees was not interested
in employment with it. That fact has not been proven. Moreover,
it is clear that employees overcame obstacles placed in their path
in order to obtain applications and attend interviews held in New
Jersey. Although it is true that the Union told them to accept
whatever wages were offered and it would pay the difference in
their pay rates, that does not prove that employees were not inter-
ested in work with PBS. It is also true that one employee told
PBS that she could not afford to work at the PBS rate, but that
was not the sentiment of the other workers.
PBS contends that it did not discriminatorily refuse to hire a
majority of its employees from the former Clean-Right em-
ployees, and claims that prior to its start of operations at 80
Maiden Lane, it was not given any information from Witkoff,
Clean-Right, AM, or the Union concerning the workers who
were cleaning the building “or even their existence,” and there-
fore acted properly in bringing its own crew to staff the build-
ing when AM gave it about 2 hours’ notice to begin its work.
As set forth above, PBS supervisor Sanchez was present at the
AM PROPERTY HOLDING CORP. 1041
start-up of operations and was well aware that the former
Clean-Right employees were being terminated that night. In
addition, AM official Constantine was also well aware of the
former workers and in effect acted as a PBS agent in advising
them that no jobs were available.
PBS further argues that of the 16 former employees of
Clean-Right, only eleven filed written applications and only
eight attended interviews. It notes that all eight received job
offers, but not to positions at 80 Maiden Lane. Its theory then,
is that even assuming all eight were offered and accepted jobs
at 80 Maiden Lane that still would not have constituted a ma-
jority of the PBS workforce.22 Inasmuch as I find that the for-
mer Clean-Right employees were unlawfully refused hire or
considered for hire, it is inferred that all the former employees
would have been retained, absent the unlawful discrimination,
and the Union’s majority status would have continued. Sierra
Realty, above, at 835.
It is clear that AM and PBS are the successor employers to
Clean-Right. AM and PBS employees immediately began
cleaning the building upon the departure of the Clean-Right
employees. They worked in the same building using similar
equipment with no hiatus in their work.
As successors, AM and PBS had a duty to bargain with Lo-
cal 32BJ over the terms and conditions of the employees em-
ployed at 80–90 Maiden Lane. See Whitewood, above. It is
undisputed that neither offered to bargain with the Union. Ac-
cordingly, by failing to recognize and bargain with the Union,
and their unilateral imposition of new terms and conditions of
employment for the employees, AM and PBS violated Section
8(a)(1) and (5) of the Act. E.S. Sutton Realty, above, 336
NLRB 405, 408 (2001).
I find also, as alleged in the complaint, that AM and Servco
is the successor to the AM – PBS operation inasmuch as Servco
has continued the operation of its cleaning service in the same
building in essentially the same manner, with certain of the
same employees, and the same supervisor, Dennis Henry.
As set forth above, I have found that AM and Servco have
unlawfully refused to hire or consider for hire the striking PBS
employees. Accordingly, the same principles as set forth above
apply to the Servco operation.
Where an employer unlawfully discriminates in its hiring in
order to evade its obligations as a successor, it does not have
the otherwise normal right of a successor to set initial terms of
employment without first consulting with the union. It is also
unlawful for such an employer to unilaterally change its em-
ployees’ terms and conditions of employment if the employer
has a legal duty to bargain with a union. I accordingly find that
AM, PBS, and Servco were not entitled to set the employees’
initial terms of employment or make unilateral changes in their

22 PBS asserts that the Board has not adopted the concept of “joint suc-
cessors,” citing Mason City Dressed Beef, Inc., 231 NLRB 735 (1977)
and United Food & Commercial Workers, 267 NLRB 891 (1983). Nei-
ther case supports its position. In Mason City, the Board noted that inas-
much as it agreed with the judge’s conclusion that the two employers
were successors, it found it unnecessary to decide whether they were also
joint employers. 231 NLRB 735, fn. 3. In United Food, the Board stated
that neither the joint employer nor the successor principles were applica-
ble to the facts therein. 267 NLRB at 893.
terms and conditions of employment. By making such unilat-
eral changes, they violated Section 8(a)(1) and (5) of the Act.
Daufuskie, above, at 422; Galloway School Lines, 321 NLRB
1422, 1427 (1996).
5. The violations concerning UWA
The complaint alleges that AM and PBS unlawfully assisted
UWA by informing workers that they were required to join
UWA, by distributing and soliciting authorization cards for
UWA, and by recognizing UWA, and signing and enforcing a
collective-bargaining agreement with it, notwithstanding that
UWA did not represent an uncoerced majority of the unit em-
ployees, and notwithstanding that AM and PBS were obligated
to bargain with Local 32BJ regarding the unit employees.
a. Solicitation of authorization cards and dues deductions
In June, 2000, Robert Francis directed that the PBS payroll
department send UWA dues-deduction authorization forms to
80 Maiden Lane and that the employees sign them. That was
done. Dues-checkoff authorizations must be made “voluntar-
ily.” An employee cannot be compelled to execute them regard-
less of the existence of a valid union-security clause. By direct-
ing its employees to sign UWA dues authorization forms, PBS
violated Section 8(a)(1) and (2) of the Act. Gloria’s Manor
Home for Adults, 225 NLRB 1133, 1143 (1976).
Dennis Henry gave Diana Vasquez a dues-authorization
form to fill out. Ana Guzman and Maria de la Cruz testified that
in August, 2000, Walter Nemecek, who was at that time substi-
tuting for Dennis Henry, gave them dues-deduction forms
which were attached to their paychecks.
As set forth above, while at work, employees Aguilera,
Andrade, and de la Cruz were asked by Dennis Henry to go to
the basement. They saw a person from UWA and their co-
workers. Castellanos signed the card in Henry’s office. Henry
told her that “John” left it for her to fill out. Varela testified that
Gilbert Sanchez told her that UWA was a “company union”
and that a “regulation” required her to sign the card. I credit
Varela’s uncontradicted testimony. By soliciting its employees
to sign cards for a union, and requiring employees to do so,
PBS violated Section 8(a)(1) and (2) of the Act. Sound One
Corp., 317 NLRB 854, 858 (1995).
Ana Guzman refused to sign a card but nevertheless dues
were deducted from her pay in violation of Section 8(a)(1) and
(2) of the Act. Laidlaw Transit, 315 NLRB 509, 513 (1994). By
b. Execution and enforcement of the collective-bargaining
Contract with UWA
The General Counsel argues that PBS was obligated to rec-
ognize and bargain with the Union by virtue of its unlawful
refusal to hire or consider for hire the former Clean-Right em-
ployees, and therefore PBS could not have validly recognized
or executed a contract with UWA.
Alternatively, the General Counsel argues that the execution
and enforcement of the contract between PBS and UWA is
unlawful because UWA independently did not represent an
uncoerced majority of the employees of 80–90 Maiden Lane. I
need not consider this alternative argument inasmuch as I find
that PBS was obligated to recognize and bargain with the Un-
ion because of its unlawful refusal to hire or consider for hire
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1042
those workers, and because it was a successor employer to the
Clean-Right operation. I accordingly find and conclude that
PBS was not free to recognize or sign a contract with UWA as
the representative of its employees. Shortway Suburban, above,
at 328–329.
A further violation has been proven in that PBS rendered
unlawful assistance to UWA by remitting dues deductions to
UWA one month after that union disclaimed interest in repre-
senting the employees and requested that PBS cease deducting
dues and return to any employees any sums that have been
deducted but not yet sent to UWA. Mashkin Freight Lines, 261
NLRB 1473, 1481 (1987).
Inasmuch as I find that the contract between PBS and UWA
was not lawfully entered into, I also find violative the Notice
given to the PBS employees in September, 2000, which stated
that a strike would be in violation of the no-strike provision.
Midwestern Personnel Services, 331 NLRB 348, 353 (2000).
6. The alleged interference with employees’ section 7
rights by AM and PBS
The complaint alleges that AM and PBS engaged in conduct
in violation of Section 8(a)(1) of the Act.
At the time of the September, 2000 meeting, there were ru-
mors that PBS would lose its contract, and the former Clean-
Right employees were engaged in picketing. PBS gave the
workers a notice which said that it learned that Local 32BJ was
encouraging them to strike.
I credit employees de la Cruz, Guzman and Varela regarding
Cunningham’s statement at the meeting that they would lose
their jobs if they signed for Local 32BJ, and Henry’s statement
to Vasquez that if the workers joined Local 32BJ they would be
“taken out of the building.” Although there were minor varia-
tions in their recitations of the comments, the testimony of the
employees was similar and consistent on a subject that was of
vital concern to them. I accordingly find that the threats of dis-
charge made by Cunningham and Henry violated Section
8(a)(1) of the Act.
Vasquez was also asked by AM official Donahue if she in-
tended to join the strike because he would have to get another
employee to perform her work if she was not working. I find
that this comment constituted an unlawful interrogation and the
creation of the impression of surveillance as alleged in the
complaint. Questions about employee strike intentions are not
per se unlawful but must be judged in light of all the relevant
circumstances. Where the question is coupled with threats, the
interrogation is unlawful. Mosher Steel Co., 220 NLRB 336
(1975). Donahue’s question of Vasquez was conducted in the
presence of top officials of AM, and was accompanied by his
remark that Local 32BJ would not enter the building. At the
same time, Constantine told Vasquez that she had been seen
speaking to Machado, a former Clean-Right employee who had
been striking. Under these circumstances, I find that Donahue’s
question of Vasquez concerning her strike intentions reasonably
interfered with her Section 7 rights. Mosher, above; Mobile
Home Estates, Inc., 259 NLRB 1384 (1982). I further find that
the question concerning Machado constituted the impression
that Constantine had engaged in surveillance of the union ac-
tivities of Vasquez. Zimmerman Plumbing Co., 325 NLRB 106,
110 (1997). I further find that PBS engaged in unlawful surveil-
lance of its employees’ union activities as set forth in the July
19, 2000 memo in which supervisor Hernandez recorded in
Marie Michel’s file that three new workers were seen speaking
with three Local 32BJ agents, and that he believed that they
were “plants” or paid by the Union. He noted that he would
“monitor.”
I also find that Constantine’s request that Vasquez inform
him of anything she learns about a big strike planned by the
Union against PBS, constitutes unlawful interrogation and a
request to inform on union activities. Tony Silva Painting Co.,
322 NLRB 989 fn. 1 (1997).
Guzman, supported by Varela, stated that Cunningham said
that if PBS lost the contract, the workers would remain in the
building and their salaries would be increased. I cannot find
that this statement is a violation in view of the employees’
question about why their salaries were so low. Cunningham’s
response related only to PBS losing the contract and his com-
ment that he would either try to “fix” that or raise their salaries
was not tied to the Union’s organizing the workers.
7. The alleged threat of an immigration investigation
As set forth above, during General Counsel’s examination of
witness Vasquez, PBS counsel objected to a question concern-
ing a line of inquiry relating to good acts of the witness. In the
course of the objection, PBS counsel stated that based upon the
offer of such evidence he would “have to get an investigator
and I’ll find out whether she’s here in this country illegally.”
The complaint alleges that this comment was an unlawful threat
to institute an immigration investigation in violation of Section
8(a)(1) and (4) of the Act.
In Stuart Bochner, 322 NLRB 1096, 1102, the Board found
that attorney Bochner had acted inappropriately in stating to the
witness that he would wait to see if the Board reported him to
the INS (for obtaining a work permit under another name), and
if not, he would tell the INS. In Commercial Body & Tank
Corp., 229 NRLB 876, 879 (1977), the Board found that an
official of the respondent told a witness outside the hearing
room that he was surprised that he was in a government build-
ing, and asked him what would happen if the immigration ser-
vice came in. The Board held that such comments were a threat,
and were calculated to induce the witness either not to testify or
to give false testimony in violation of Section 8(a)(1) of the
Act. In Iowa Beef Processors, Inc., 226 NLRB 1372, 1374–
1375, the Board found that an attorney’s statement on the re-
cord in front of witnesses that no immunity to criminal prosecu-
tion applied to their upcoming testimony, and that if new evi-
dence was adduced concerning an alleged theft, it would be
obligated to investigate and “take whatever action” was neces-
sary. The Board found that this comment constituted intimida-
tion of the witnesses and an interference with the witnesses and
their right to testify in violation of Section 8(a)(1) of the Act.
The Board noted that if counsel had “merely made his point to
the Administrative Law Judge and the General Counsel, then
there would be no cause for concern on our part.”
The immigration status of Vasquez was not at issue in this
hearing. PBS correctly argues that the employment application
legitimately asked about the prospective employee’s immigra-
AM PROPERTY HOLDING CORP. 1043
tion status, but that matter was not at issue here. Although PBS
counsel made an evidentiary objection, it was phrased in a way
that was more than an objection. The comment was not as
much as an objection as it was the mention of an intended ac-
tion he would take against Vasquez—“that now means that I
have to get an investigator and I’ll find out whether she’s here
in this country illegally.”
It is true that PBS counsel was suggesting that if the pending
question was permitted, allowing evidence of unrelated prior
good acts, he should also be permitted to offer evidence of bad
acts, that Vasquez was in the U.S. illegally. Unfortunately, the
choice of his analogy could, objectively, only be viewed as a
threat to Vasquez that he would uncover her allegedly illegal
status.
Such a comment served not only as a threat to Vasquez that
her immigration status would be investigated, but also served to
discourage her interest in testifying in this proceeding. I accord-
ingly find that the statement by PBS counsel violated Section
8(a)(1) and (4) of the Act.
8. Jorge Cea
a. The alleged unlawful rescission of a job offer to Jorge Cea
As set forth above, on September 3, 2000, Cea was assigned
to work for AM at 80 Maiden Lane. During his first week of
work Cea spoke to Union agent Velez for about 10 minutes
outside the building. I credit Cea’s testimony that while he
spoke to Velez he noticed Constantine across the street looking
at him. I have considered the fact that there were demonstrators
in the immediate area as well as vehicular traffic, but I credit
Cea’s testimony that he saw Constantine. He told Velez that he
believed that he was being watched. Later events support this
finding. The following day, Constantine told Cea that he would
be replaced by a person recommended by a building engineer.
The complaint alleges that AM rescinded its offer of a job to
Cea. AM argues that no offer was made. The theory of the
complaint is not that Cea had already been hired by AM. In-
deed, Cea conceded that Constantine told him when he began
work that he would be working at the building only for a few
weeks. That view was apparently changed in view of Constan-
tine’s testimony that he had a “positive feeling” about Cea’s
work and believed him to be a good worker. Accordingly, I find
that Constantine offered Cea employment and, in accordance
with Cea’s credited testimony, asked him if he wanted to work
for him in the building or for PBS. When Cea replied that he
wanted to work for AM in the building because he would be
making more money, the offer was effectively made.
The offer was immediately withdrawn only the following
day when Constantine told Cea that he would be hiring some-
one recommended by the building’s engineer. Nevertheless,
Constantine took Cea’s contact information and said he would
call if he was needed.
I find that the General Counsel has made a prima facie show-
ing that the offer to Cea was rescinded because of his union
activity in speaking with Velez during a Union demonstration
which was observed by Constantine. Wright Line, 251 NLREB
1083 (1980). An offer of a job in the building was made to Cea
accompanied by a statement that he was doing a good job and
would be considered for a job at the building. The fact that the
offer was withdrawn immediately upon Cea engaging in the
open activity of speaking to Union agent Velez is extremely
suspicious. I have found, above, that Constantine exhibited
animus toward the Union by violating Section 8(a)(1) of the
Act by requesting that employee Vasquez inform him if she
learns of the Union’s plans to engage in a strike against PBS.
AM’s defenses to this allegation and the record of its later
hire of Alejandro Ibarra raises further suspicions. Thus, in his
opening statement, counsel for AM stated that Cea was dis-
charged for absenteeism. However, at hearing its defense was
that Cea was replaced by an individual recommended by the
building’s engineer. Further, and significantly, only one week
later, on September 19, a new employee, Alejandro Ibarra was
hired as a porter by AM. The question immediately arises as to
why Cea was not hired in view of Constantine’s satisfaction
with his work and his statement that he would be contacted if
needed in the future.
b. The alleged constructive discharge of Cea
The complaint alleges that PBS constructively discharged
Cea termination by offering him a work schedule it knew he
could not accept. The two-part test for proving such a discharge
was restated by the Board in Manufacturing Services, 295
NLRB 254, 255 (1989):
First, the burdens imposed upon the employee must cause,
and be intended to cause, a change in working conditions so
difficult or unpleasant as to force him to resign. Second, it
must be shown that those burdens were imposed because of
the employee’s union activities.
The Board has held that when an employer assigns employ-
ees to work shifts when it knows that by doing so it will con-
flict with an employee’s educational programs, the first factor
required in proving a constructive discharge has been proven.
Olympic Limousine Service, 278 NLRB 278 NLRB 932, 938–
939 (1986); Ingalls Shipbuilding, 242 NLRB 417, 421–422
(1979).
The evidence establishes that early in his tenure, Cea in-
formed his supervisor Neziri that he needed day work in order
to take classes with the Mason Tenders Union in the evening,
and that Neziri accommodated that request by assigning him to
day work at 80–90 Maiden Lane, and upon his removal from
that job, was assigned to day-shift work at another location.
Upon the ending of that job, Neziri assigned him to an evening
position and when Cea protested that he could not work that
shift because of his evening classes, he was fired.
In addition to the above, the General Counsel must also show
that Cea was assigned to the evening shift because of his union
activities. That burden has not been met. The General Counsel
asks that I infer knowledge by PBS of Cea’s activity behalf of
Local 32BJ while employed at 80–90 Maiden Lane. It is argued
that knowledge of employee activities in general in behalf of
the Union at 80–90 Maiden Lane must be taken to include
knowledge of Cea’s alleged activities in its behalf. However,
the evidence does not permit such an inference to be drawn. I
have found that AM official Constantine rescinded an offer of
employment for Cea because he was seen speaking with a un-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1044
ion agent. There is no evidence that PBS supervisor Neziri
knew of that activity or was told of it by Constantine.
I therefore cannot find that PBS or Neziri was aware of the
minimal union activity of Cea at 80–90 Maiden Lane. The ab-
sence of animus toward Cea is further shown by Neziri’s as-
signment of Cea to a day position on 62nd Street following his
departure from 80–90 Maiden Lane. Upon the completion of
that job Neziri again assigned Cea to another job, but this time
Cea refused to accept it because of his school schedule. Neziri
discharged him saying that he needed someone who was reli-
able and who would follow orders. In the absence of evidence
that PBS or Neziri was aware of Cea’s union activities I cannot
find that he has been constructively discharged.
The General Counsel’s evidence concerning the availability
of daytime work for Cea does not withstand scrutiny. While it
is true that certain employees were transferred into certain
buildings serviced by PBS, that occurred prior to Cea’s dis-
charge by Neziri. General Counsel’s argument that Cea could
have worked the 10:30 p.m. to 7 a.m. shift since that would not
have conflicted with his school schedule is not relevant since
Cea asked for daytime employment.
9. AM’s termination of its subcontract with PBS
The complaint alleges that the termination by AM of its clean-
ing contract with PBS violated the Act because the 80–90
Maiden Lane bargaining unit supported Local 32BJ. The com-
plaint further alleges that AM’s decision to terminate the contract
was a mandatory subject of bargaining, and by not bargaining
with the Union concerning that decision it violated the Act.
A Wright Line analysis will be applied in determining
whether AM terminated its subcontract with PBS for unlawful
reasons. Whitewood Maintenance Co., 292 NLRB 1159, 1165
(1989). Under such an analysis a joint employer may be held
liable for terminating its subcontract. Whitewood, above.
Only about 1 month after the employees at 80–90 Maiden
Lane began a strike with accompanying noisy picketing, AM
terminated its contract with PBS. It is clear that AM was op-
posed to having any relations with Local 32BJ as evidenced by
its refusal to accept the Local 32BJ contract or retain any
Clean-Right employees represented by the Union. In addition,
it expected, in its counsel’s view, that the Union and the em-
ployees would leave the building and not return. In addition,
the unlawful threats of discharge by Cunningham and Henry,
set forth above, provide further proof that it was opposed to the
Union’s presence at the building. It is clear that the strike and
picketing were related to the decision to terminate the contract.
I accordingly find that the General Counsel has shown that the
Union’s presence and activities at the building were a motivat-
ing factor in the cancellation of the PBS contract by AM.
Wright Line, above.
The burden then shifts to AM to prove that it would have
terminated the contract even in the absence of the Union activ-
ity. AM has not done so. Aside from the vague letter explaining
the reason for the termination, no credible evidence has been
adduced which would prove a valid reason for the termination
of the contract. Wright Line. I accordingly find that the termina-
tion of its contract with PBS violated the Act.
PBS offered to begin the second year of its contract with a 4-
percent increase. AM’s letter of termination was vague—it
stated that the contract was terminated for “several reasons, not
the least of which is economic.” Accordingly, the disturbance
to tenants may have been one reason. AM official Constantine
said that the level of cleaning began to “suffer” when the strike
began. I do not believe that the reason was totally economic.
PBS offered a lesser increase for a renewal at another, non-
Union AM building which was accepted by AM. Accordingly,
if the reason was purely economic it appears clear that agree-
ment would have been reached. In addition, there is no evi-
dence that any complaints that AM might have had with the
level of cleaning service was brought to the attention of PBS.
Computer Associates International, 324 NLRB 285, 286
(1997).
I accordingly find and conclude that the cancellation of the
PBS contract by AM violated Section 8(a)(1) and (3) of the
Act. Whitewood Maintenance, above.
AM, as the joint employer, was obligated to bargain over the
decision to terminate the subcontract. W.W. Grainger, 286
NLRB 94, 96 (1987). Inasmuch as AM did not do so, its failure
to bargain with Local 32BJ violated Section 8(a)(1) and (5) of
the Act.
10. The alleged interference with employee rights
by AM and Servco
As set forth above, on June 14, 2001, striking PBS employ-
ees asked Henry and Constantine for applications for the new
contractor. Henry said that the new company did not want any-
one from the strike. Constantine told the former PBS workers
that he could not do anything for them since they made trouble
and refused to return to work when asked. On June 18, Con-
stantine reminded them that he had told them that the Union
was not wanted in the building. Both men, then, essentially told
the striking PBS workers that they were ineligible for work
with Servco because of their union activity. I credit the testi-
mony of the workers which was consistent with what I believe
to be the overall plan of AM to avoid having Union-represented
workers employed at 80–90 Maiden Lane.
I credit the testimony of prospective Servco employee Velez,
that on June 15 Giacoia threatened prospective Servco employ-
ees with immediate discharge if they spoke to Local 32BJ rep-
resentatives. Giacoia’s testimony was discredited in similar
circumstances involving this Union in Citywide Service Corp.,
317 NRLB 861, 875 (1995), where he testified that if he could
avoid a union contract he would do so. Citywide, at 876. Credi-
bility determinations in a prior proceeding may be considered
in assessing the credibility of a witness in the instant hearing.
Adams Delivery Service, Inc., 237 NLRB 1411, 1417, 1418
(1978).
11. The alleged refusal to hire or consider for hire
by AM and Servco
I find above that that Henry and Constantine, as an agent and
supervisor, respectively, of AM, which is a joint employer of
Servco, thereby speaking in behalf of Servco, told the striking
employees that they would not be considered for hire because
of their involvement with the Union or because they were en-
AM PROPERTY HOLDING CORP. 1045
gaged in strike activity. Those comments coupled with Gi-
acoia’s threat to discharge employees if they speak with the
Union establish that Servco would not hire or consider for hire
the PBS employees because of their Union activities.
It is clear that at the time of these comments, Servco was hir-
ing, the applicants had experience in the positions for hire, and
that antiunion animus contributed to the decision not to hire the
applicants. Once the General Counsel has made this showing,
the burden shifts to the employer to show that it would not have
hired the employees even in the absence of their union activity
or affiliation. Tim Foley and FES, above.
While discouraging the striking PBS employees from apply-
ing for work at Servco, at the same time, Servco hired non-
striking PBS employees. This procedure differed from its ordi-
nary hiring routine which was to interview, screen and hire
applicants at its Bronx office. In addition, “when it is futile for
employees to file applications, an employer is barred from as-
serting that it lawfully failed to hire them because of the ab-
sence of applications.” Shortway Suburban Lines, 286 NLRB
323, 326 (1987).
12. The alleged refusal to bargain with the Union by Servco
It is clear that Servco is the successor employer to AM and
PBS. Upon the termination of the PBS contract by AM, Servco
immediately began cleaning work in the same building in the
same manner as PBS. It continued the employ of Dennis Henry
as its supervisor.
As the successor to PBS and as a joint employer with AM,
Servco had a duty to bargain with Local 32BJ over the terms
and conditions of the employees employed at 80–90 Maiden
Lane. See Whitewood, above. It is undisputed that Servco did
not bargain with the Union.
Servco hired its employee complement on June 15 and began
work that day. On June 18, 2001, the Union wrote to AM seek-
ing positions with the new contractor for the employees it rep-
resented. AM wrote that those workers were free to seek jobs
with the new contractor. Apparently, the Union did not learn
the name of the new contractor, Servco, until it had hired its
employees.
Servco argues that the Union did not demand bargaining
with it and therefore it had no obligation to do so. Under the
circumstances presented above, where the Union first learned
that Servco would be taking over the cleaning responsibilities
after June 14 and Servco began its service on June 15, Servco
had by then hired its new employees and set the terms and con-
ditions for those employees on that date. Moreover, “no bar-
gaining demand was necessary, as the Respondent’s unlawful
refusal to hire . . . its predecessor’s employees rendered any
request for bargaining futile.” Smith & Johnson Construction
Co., 324 NLRB 970 (1997).
Accordingly, by failing to recognize and bargain with the
Union, and its unilateral imposition of new terms and condi-
tions of employment for the employees, Servco violated Sec-
tion 8(a)(1) and (5) of the Act. E.S. Sutton Realty, above, 336
NLRB at 408.
CONCLUSIONS OF LAW
1. Planned Building Services, Inc. (PBS), AM Property
Holding Corp., Maiden 80–90 NY LLC, Media Technology
Centers LLC, a single employer (AM), and Servco Industries,
Inc. (Servco) are employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Local 32BJ, Service Employees International Union,
AFL-CIO (Local 32BJ) and United Workers of America
(UWA) are labor organizations within the meaning of Section
2(5) of the Act.
3. All service employees employed at 80–90 Maiden Lane,
New York, NY, constitutes a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of
the Act.
4. By refusing to hire employees and by refusing to consider
for hire employees who had been previously employed at 80–
90 Maiden Lane because those employees had been represented
by Local 32BJ and in order to avoid an obligation to recognize
and bargain with Local 32BJ, AM, PBS and Servco have vio-
lated Section 8(a)(1) and (3) of the Act.
5. By refusing to recognize and bargain with Local 32BJ as
the collective-bargaining representative of their employees in
the 80–90 Maiden Lane unit, AM, PBS and Servco have vio-
lated Section 8(a)(1) and (5) of the Act.
6. By unilaterally changing the terms and conditions of em-
ployment of the employees in the above unit without notice to
or bargaining with Local 32BJ, AM, PBS, and Servco violated
Section 8(a)(1) and (5) of the Act.
7. By recognizing and executing a collective-bargaining
agreement with UWA when Local 32BJ was the exclusive rep-
resentative of its employees in the above bargaining unit, PBS
has violated Section 8(a)(1) and (2) of the Act.
8. By executing and maintaining the above collective-
bargaining agreement which contains a union-security clause,
and by deducting dues and remitting them to UWA, PBS has
violated Section 8(a)(1), (2) and (3) of the Act.
9. By directing its employees to sign authorization cards
and/or dues deduction forms for UWA, and by deducting dues
from the wages of employees who had not authorized such
deductions, PBS has violated Section 8(a)(1) and (2) of the Act.
10. By interrogating employees concerning whether they in-
tended to work during a strike by Local 32BJ, PBS has violated
Section 8(a)(1) of the Act.
11. By threatening employees with discharge if they support
Local 32BJ, AM, PBS, and Servco violated Section 8(a)(1) of
the Act.
12. By creating the impression of surveillance of employees’
support for and activities on behalf of Local 32BJ, AM and
PBS violated Section 8(a)(1) of the Act.
13. By threatening employees with an investigation regard-
ing their immigration status in retaliation for their giving testi-
mony at a National Labor Relations Board proceeding, or in
retaliation for their support for and activities in behalf of Local
32BJ, PBS violated Section 8(a)(1) and (4) of the Act.
14. By terminating its cleaning contract because of the clean-
ing contractor’s employees’ membership in or activities in be-
half of Local 32BJ, thereby causing the employees’ loss of
employment, AM violated Section 8(a)(1) of the Act.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD1046
15. By rescinding an offer of employment to Jorge Cea in re-
taliation for his support for and activities in behalf of Local
32BJ, AM violated Section 8(a)(1) and (3) of the Act.
16. By telling employees that they would not be hired or
considered for hire because of their support for and activities in
behalf of Local 32BJ, AM violated Section 8(a)(1) of the Act.
17. The above unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that AM, PBS, and Servco have engaged in
various unfair labor practices, I shall order that they cease and
desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Inasmuch as I have found that PBS violated Section 8(a)(1),
(2) and (3) of the Act by recognizing and executing a collec-
tive-bargaining agreement with UWA when it was obligated to
recognize and bargain with Local 32BJ, I shall recommend that
PBS withdraw recognition from UWA unless and until UWA is
certified as the exclusive representative of the employees at 80-
90 Maiden Lane, and to cease giving effect to the collective-
bargaining agreement it executed with UWA, or any modifica-
tion, amendment, extension or renewal of the agreement, pro-
vided however that nothing in this Order shall require PBS to
vary or abandon any wage increase or other benefit, terms and
conditions of employment which may have been established
pursuant to the performance of that agreement.
I shall also recommend that PBS and UWA jointly and sev-
erally reimburse all former and present employees employed by
PBS at 80–90 Maiden Lane for all initiation fees, dues and
other moneys which may have been deducted from their wages
pursuant to the union-security provision of the collective-
bargaining agreement signed by PBS and UWA, with interest
as provided in New Horizons for the Retarded, 283 NLRB 1173
(1987).
I agree with the request of Local 32BJ that a broad order be
issued against PBS. In previous Board cases under similar cir-
cumstances it has demonstrated its animus toward that Union,
has recognized UWA, and has refused to hire employees. See
the cases cited above. In addition, Administrative Law Judge
Steven Fish has found that PBS violated the Act in similar cir-
cumstances as alleged here. Planned Building Services, Inc.,
JD(NY)-61-00, currently on appeal to the Board. I accordingly
find that a broad order against PBS is appropriate.
I reject the Union’s request that AM be the subject of a broad
order. The Union’s basis for the request is that AM has been
engaged in a protracted course of conduct in this litigation. I
know of know basis, and the Union does not cite any, where
such conduct would warrant the issuance of a broad order.
Inasmuch as I find that AM and PBS are joint employers, I
shall order that they take appropriate action for the period April
25, 2000 through June 15, 2001, when they were joint employ-
ers and when PBS provided cleaning services at 80–90 Maiden
Lane. Specifically, the order will require that they reinstate and
make whole the former Clean-Right employees due to their
refusal to hire them or to consider them for hire.
Specifically, I shall also order that AM and PBS be ordered
to recognize and bargain on request with Local 32BJ with em-
ployees at 80–90 Maiden Lane. Additionally, PBS shall on
request of Local 32BJ, rescind any departures from the terms of
employment that existed before PBS’s takeover of the cleaning
responsibilities at that location, and to retroactively restore
preexisting terms and conditions of employment, including
wage rates and payments to benefit funds, for the period April
25, 2000 through June 15, 2001, that would have been paid
absent the unlawful conduct of AM and PBS. Weco, above, at
321; Daufuskie, above, at 422. The basis of the wages and
benefits must be those in effect during the term of the RAB-
Local 32BJ contract. Galloway School Lines, 321 NLRB 1422,
1427 (1996). The remission of wages shall be computed as in
Ogle Protection Service, 183 NLRB 602 (1970), plus interest as
prescribed in New Horizons, above. They shall also remit all
payments they owe to employee benefit funds in the manner set
forth in Merryweather Optical Co., 240 NLRB 1213 (1979),
and reimburse their employees for any expenses resulting from
their failure to make such payments, as set forth in Kraft
Plumbing and Heating, 252 NLRB 891 fn. 2 (1980).
A separate Order against PBS only shall be issued, ordering
that it cease and desist from threatening employees.
A separate Order against AM only shall be issued, ordering
that it, as a joint employer, remedy the refusals to hire or con-
sider for hire the former Clean-Right employees, and the for-
mer PBS employees who were employed by PBS but then dis-
missed when AM unlawfully cancelled its contract with PBS.
As to AM and Servco, which I have also found are joint em-
ployers, I shall order that appropriate action be taken regarding
the refusal to hire employees when Servco commenced the clean-
ing operations. In order to remedy their refusal to bargain with
Local 32BJ, I shall order that they rescind the changes made to
the terms and conditions of employment of the employees, re-
scind any departures from the terms of employment that existed
before PBS’s takeover of the cleaning responsibilities at that
location, and to retroactively restore preexisting terms and condi-
tions of employment, including wage rates and payments to bene-
fit funds in the manner set forth above. I shall also order that
Servco reinstate the former Clean-Right employees as well as the
PBS employees who were refused hire or refused consideration
for hire. The specific employees to be reinstated shall be a part of
the compliance part of this proceeding.
I shall recommend that posting be made at all of PBS’ facili-
ties. See Planned Building Services, 330 NLRB 791, 793
(2000).
[Recommended Order omitted from publication.]