Planned Building Services

National Labor Relations Board - Board Decisions

Dec 15, 2017

365 NLRB No. 162 (N.L.R.B. 2017)

365 NLRB No. 162
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
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 and United Work-
ers of America (Party In Interest).
AM Property Holding Corp., Maiden 80/90 NY LLC,
and Mediate Technology Centers, LLC, a single
employer, a joint employer with Servco Indus-
tries, Inc. and Local 32BJ, Service Employees
International Union. Cases 02–CA–033146–1,
02–CA–033308–1, 02–CA–033558–1, 02–CA–
033864–1, and 02–CA–034018–1
December 15, 2017
DECISION AND ORDER
BY CHAIRMAN MISCIMARRA AND MEMBERS PEARCE
AND MCFERRAN
This case, on remand from the United States Court of
Appeals for the Second Circuit,1 requires us to determine
whether Respondent Planned Building Services (PBS)
was an individual successor employer, and therefore vio-
lated Section 8(a)(5) and (1) of the Act by failing to bar-
gain with the Charging Party Union. The court directed
the Board, before addressing that question, to decide
whether, consistent with due process, the Board can
make that determination on the present record, or wheth-
er it is necessary to remand the case to the administrative
law judge to provide PBS with an opportunity to litigate
the issue.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the remanded issues. As
explained below, we find that the issue of individual suc-
cessorship was closely connected to the subject matter of
the complaint and that it was fully and fairly litigated
before the administrative law judge. We further find,
consistent with due process, that PBS individually was a
successor, that the unit of PBS employees at 80-90
Maiden Lane remained an appropriate unit, and that PBS
violated Section 8(a)(5) and (1) by failing to recognize
and bargain with the Union.
I.
We assume the reader’s familiarity with the Board’s

1 Service Employees International Union, Local 32BJ v. NLRB, 647
F.3d 435 (2d Cir. 2011).
underlying decision and order in this case,2 as well as the
Second Circuit’s decision. Our review of the factual and
procedural background, then, will be brief.
A.
This case centers on a Manhattan office building, 80-
90 Maiden Lane, and the cleaning services workers em-
ployed there. The Board found that Respondent AM
Property Holding Corp. (AM) acquired the building on
April 25, 2000,3 and unlawfully decided to avoid hiring
or using the employees of the incumbent cleaning em-
ployer. That employer, Clean-Right, an in-house clean-
ing service owned by the building’s previous owner, the
Witkoff Group, was party to a single-facility-unit collec-
tive-bargaining agreement with the Union, covering the
building’s cleaning staff.
The same day that it acquired the building, AM con-
tracted with PBS to replace Clean-Right. PBS hired (and
transferred from its other local worksites) 11 employees
to begin work at the building that evening, plus a day
matron. PBS thereby displaced—for unlawful reasons—
11 Clean-Right employees who worked nights, plus the
Clean-Right matron who worked days.4 AM transferred
three of its own employees (an elevator operator and two
porters) from its other properties to be day employees at
the building, also displacing Clean-Right employees who
had been members of the Union’s bargaining unit from
those positions.5
PBS refused to recognize and bargain with the Union
as the representative for its new unit. In addition, PBS
made unilateral changes to employees’ pay and other

2 350 NLRB 998 (2007).
3 All dates are in 2000 unless otherwise indicated.
4 PBS’s discriminatory refusal to hire the former Clean-Right em-
ployees or to consider them for hire violated Sec. 8(a)(3) and (1). 350
NLRB at 1004, enfd. in relevant part 647 F.3d at 450. It follows that
but for PBS’s unlawful conduct, the former Clean-Right employees
would have constituted the majority of PBS’s employees at 80-90
Maiden Lane, and the Union's status as the exclusive collective-
bargaining representative of those employees would have survived
PBS’s takeover as provider of cleaning services at that location. See
Love’s Barbeque Restaurant No. 62, 245 NLRB 78, 82 (1979). As
more fully explained below, the PBS employees at 80-90 Maiden Lane
remained an appropriate unit, and there was substantial continuity
between Clean Right’s operation and that of PBS. Accordingly, PBS,
as a statutory successor, was obligated to recognize and bargain with
the Union over the employees’ terms and conditions of employment.
Id. Its failure to do so forms the basis for our finding that PBS violated
Sec. 8(a)(5) by unilaterally changing those employees’ terms and con-
ditions of employment provided in the collective-bargaining agreement
without prior notice to or consultation with the Union, and for our
Order that PBS make whole the unit employees it hired to replace the
former Clean-Right employees and any other unit employees PBS hired
later during the remedial period. Id.
5 350 NLRB at 1004, 1034–1037.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
terms of employment.6
In relevant part, the General Counsel’s complaint al-
leged that AM and PBS, as joint employers and joint
successors, refused to hire the Clean-Right employees in
violation of Section 8(a)(3), and refused to recognize the
Union as their representative and unilaterally changed the
unit’s terms of employment in violation of Section
8(a)(5). The complaint did not allege in the alternative
that either PBS or AM was individually a successor or
that either entity individually violated Section 8(a)(5).
The judge found that the General Counsel established
joint employment and joint successorship, along with the
violations alleged.7
B.
On exceptions, the Board found that PBS and AM had
each violated Section 8(a)(3) in their respective hiring
decisions, but that they were not joint employers or joint
successors and therefore had not violated Section 8(a)(5)
in that respect. 350 NLRB at 1002–1003. The Board
found that it was precluded from considering whether
PBS or AM had individually violated Section 8(a)(5) as a
successor for a surviving bargaining unit, because the
General Counsel had not alleged or litigated that theory
and had not alleged or shown that either of the units en-
compassing workers employed by PBS and AM Proper-
ty, respectively, was appropriate. Id. at 1003.8
The General Counsel applied to the Second Circuit for
enforcement of the Board's Order. The Union filed a
petition for review with respect to successorship, chal-
lenging the Board’s finding that it could not consider
PBS’s status as an individual successor.
C.
On August 1, 2011, the court issued a decision enforc-
ing the Board’s Order as to the violations it had found.
647 F.3d at 450. The court agreed with the Board that

6 Id. at 999, 1019–1024. PBS also unlawfully assisted another un-
ion, the Respondent United Workers of America (UWA), to obtain
authorization cards from a majority of the unit, and it subsequently
recognized that union as representative of a multi-site bargaining unit.
Id. at 1005-06.
7 The judge and the Board also found that PBS, AM, and a third Re-
spondent, Servco Industries, committed other subsequent violations,
which are no longer at issue.
8 On March 27, 2008, a two-Member Board found that the Union
failed to show extraordinary circumstances justifying reconsideration of
the Board’s refusal to consider whether PBS was a sole successor. 352
NLRB 279 (2008). The two-Member Board found it significant that
the General Counsel did not join the Union’s motion, and it inferred
from this that the General Counsel “did not, and does not, intend to
litigate the case on this basis.” Id. at 281 fn. 8. (The two-Member
Board granted the General Counsel’s separate motion for reconsidera-
tion, finding that PBS had also violated Sec. 8(a)(2) by recognizing the
UWA. Id. at 280-–281.) On August 27, 2010, that decision was adopt-
ed by a three-member panel of the Board. 355 NLRB 721 (2010).
there was no joint employer or joint successor liability.
Id. at 446. The court, however, remanded the case for
the Board to reconsider whether it could determine, con-
sistent with due process, whether PBS was a single suc-
cessor for its unit of employees and, if so, whether PBS
was in fact a single successor with an obligation to rec-
ognize the Union. Id. at 449.
Citing Pergament United Sales, 296 NLRB 333, 334
(1989), enfd. 920 F.2d 130 (2d Cir. 1990), the court not-
ed that “the Board may identify a violation of the Act
that was not specifically alleged in the complaint or ad-
vanced by the General Counsel if the parties had suffi-
cient notice to satisfy due process—i.e., ‘if the issue
[was] closely connected to the subject matter of the com-
plaint and has been fully litigated.’” 647 F.3d at 447
(emphasis in original; quoting Pergament, supra). The
Board had erred, the court found, by assuming that it was
“necessarily” barred from addressing single successor-
ship for the sole reason that the General Counsel had not
pursued that issue. Id. at 447–448. The Board should
instead have determined, based on the facts in the record,
whether the issue of PBS's status as a single successor
“had been fully litigated and was sufficiently related to
the underlying complaint such that finding a violation on
that ground would comport with due process.” Id. at
448.
If the Board answered those questions in the affirma-
tive, the court continued, the Board should apply its suc-
cessorship criteria to PBS, including whether the surviv-
ing PBS unit was appropriate. Id. With respect to the
unit’s appropriateness, the court noted the Board’s well-
established policy that a unit limited to a single facility is
presumptively appropriate. The court therefore found it
“immaterial” that the General Counsel had not alleged or
affirmatively shown that the PBS employees at the 80-90
Maiden Lane facility constituted an appropriate unit. Id.
at 449. The court instructed the Board to apply its sin-
gle-facility presumption to the question of whether PBS
was an individual successor to Clean-Right, or to state its
reasons for not doing so. Id. The court further instructed
the Board, if it found that due process precluded it from
making such findings, to determine whether a remand to
the judge for further fact-finding is appropriate. Id.
On May 30, 2012, the Board accepted the court’s re-
mand, and the parties thereafter filed position statements
addressing the remanded issues.
III.
Applying the Second Circuit’s ruling as the law of the
case, we conclude, for the reasons that follow, that (1)
consistent with due process, we may determine (on the
present record, without a remand) whether PBS individu-
ally was a successor employer; and (2) under established
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 3
legal principles, PBS was indeed a successor with a duty
to bargain with the Union.
A.
Under Pergament, supra, the Board “may find and
remedy a violation even in the absence of a specified
allegation in the complaint if the issue is closely con-
nected to the subject matter of the complaint and has
been fully litigated.” 296 NLRB at 334 (internal cita-
tions omitted).
1.
The issue of single successorship is not only “closely
related” to the complaint allegation of joint successor-
ship; it is in all practical terms identical. PBS does not
argue to the contrary.
The established criteria for finding successorship look
to whether the new employer's operation and practices
differ significantly from its predecessor’s, and whether
the surviving unit of employees remains appropriate
within the meaning of Section 9 of the Act. NLRB v.
Burns Int'l. Security Services. Inc., 406 U.S. 272, 280
(1972); The Bronx Health Plan, 326 NLRB 810, 811-812
(1998), enfd. 203 F.3d 51 (D.C. Cir. 1999). In determin-
ing whether the new operation differs significantly, the
Board examines whether the new entity “has acquired
substantial assets of its predecessor and continued, with-
out interruption or substantial change, the predecessor's
business operations”; and whether there is “substantial
continuity” between the enterprises. Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987),
quoting Golden State Bottling Co v. NLRB, 414 U.S. 168,
184 (1973). For this purpose, the Board looks to whether
“the business of both employers is essentially the same;
whether the employees of the new company are doing
the same jobs in the same working conditions under the
same supervisors; and whether the new entity has the
same production process, produces the same products,
and basically has the same body of customers.” Fall
River Dyeing, supra, 482 U.S. at 43.9
The “substantial continuity” analysis is made “primari-
ly from the perspective of the employees,” i.e., “whether

9 The Board considered the same factors in Mason City Dressed
Beef, the only published case in which joint successorship was alleged
and found by the Board. 231 NLRB 735, 745 (1977), enfd. as modified
590 F.2d 688 (8th Cir. 1978). There, the Board adopted the judge’s
analysis, in which he first applied the above criteria to find that there
was a successorship, 231 NLRB at 745; and then reviewed the relation-
ship between the two employers and their respective roles concerning
the new entity to find them joint successors. Id. at 745–747. (On re-
view, the Eighth Circuit agreed with the Board that an agency relation-
ship between the two employers established their joint liability, and it
therefore did not reach the issue of joint successorship. 590 F.2d at
698.)
‘those employees who have been retained will under-
standably view their job situations as essentially unal-
tered.’”10 Accordingly, “a change in scale of operation
must be extreme before it will alter a finding of succes-
sorship.”11
Thus, where joint successorship is alleged, the Board
need not perform a separate analysis of the particular
business operations of each alleged successor, or of the
role each plays in managing the new operation (as, by
contrast, when determining whether there are joint em-
ployers). The focus instead is on the surviving employ-
ing unit alone, and the extent to which, from the employ-
ees’ perspective, the unit differs from the predecessor
unit. In the case of either a single or joint successorship,
the only relevant evidence extrinsic to the new operation
would relate to other worksites that might affect the bar-
gaining unit’s appropriateness. Where a joint successor-
ship is alleged, evidence of the relationship between the
two employers would be relevant only for the purpose of
determining whether the successorship found comprises
one or both employers.12 Such evidence would be entire-
ly separate from the evidence of whether a successorship
occurred. Our dissenting colleague, in asserting that due
process for PBS requires a remand in this case, ignores
this altogether.
2.
We also find that the single successorship issue was
fully litigated. Under Pergament, “the determination of
whether a matter has been fully litigated rests in part on
whether the absence of a specific allegation precluded a
respondent from presenting exculpatory evidence or
whether the respondent would have altered the conduct
of its case at the hearing, had a specific allegation been
made.” 296 NLRB at 335. Although not acknowledged
by our dissenting colleague, PBS makes no such claim
here. Except in one instance, it does not argue that it

10 Tree-Free Fiber, 328 NLRB 389, 389 (1999), quoting Fall River
Dyeing, supra, 482 U.S. at 43, and Golden State Bottling, 414 U.S. at
184.
11 The Bronx Health Plan, 326 NLRB at 812, quoting Mondovi
Foods Corp., 235 NLRB 1080, 1082 (1978).
12 In some situations the precise scope of a successor unit could be
affected by whether there are joint or single successor employers.
Here, for example, AM rather than PBS filled three of the positions that
existed in the predecessor unit: an elevator operator and two day por-
ters. The new PBS unit, therefore, did not include those positions. If,
on the other hand, PBS and AM had been joint successors, the com-
bined successor unit would have included those employees. PBS,
however, has not argued that this circumstance affected either the sub-
stantial continuity of operations or the appropriateness of the unit it
acquired. Further, it is well established that a reduction in size of an
appropriate unit does not make the surviving unit inappropriate. See,
e.g., Dean Transportation, 350 NLRB 48, 48 fn. 2(2007), enfd. 551
F.3d 1055 (D.C. Cir. 2009); The Bronx Health Plan, 326 NLRB at 812.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
would have introduced different or additional evidence,
or conducted its case differently at the hearing, had the
complaint alleged that PBS was the single successor to
Clean-Right.13
PBS does contend that we should remand the case to
take certain evidence, mostly unspecified, concerning its
operations and the appropriateness of the bargaining unit
that it asserts precludes the finding of a single successor-
ship. It does not, however, explain persuasively why it
failed to produce such evidence at the hearing, notwith-
standing that successorship has always been one of the
central issues in this case. The parties made an extensive
record at the hearing concerning PBS’s operations at 80-
90 Maiden Lane, any differences between those opera-
tions and those of Clean-Right, and the appropriateness
of the bargaining unit. Whatever evidence PBS now
wishes to introduce concerning single successorship, if
relevant at all, would have been equally relevant to the
question of joint successorship at the time of the hearing.
PBS’s failure to introduce such evidence at that time, or
to explain persuasively why the absence of a complaint
allegation of single successorship prevented it from do-
ing so, negates any suggestion that a refusal to hear that
evidence now would deny PBS due process. In any
event, as we explain below, the purported evidence is
either irrelevant or would not require a different result
even if adduced and credited.
For all of the foregoing reasons, we find that due pro-
cess considerations do not bar us from deciding the issue
of PBS’s single successorship on the present record, and
that we can and should address that issue.
B.
Based on the record, we conclude that PBS, individu-
ally, was a successor to Clean-Right. The Board’s un-
derlying decision accepted the judge’s factual findings
relevant to the issue of successorship,14 and PBS did not
challenge any of them.15 Those findings are therefore

13 In that one instance, PBS’s contention is without merit, as we ex-
plain below, because the evidence is not material and does not with-
stand careful scrutiny in any case.
14 As noted above, the Board’s determination that PBS and AM
were not joint successors was based solely on the rejection of the Gen-
eral Counsel’s legal contentions pertaining to joint employer status.
350 NLRB at 1003.
15 PBS did except to the judge’s finding, as part of his determination
that PBS’s refusal to hire the discriminatees violated Sec. 8(a)(3), that
the Clean-Right employees were qualified for the new operation and
were bona fide applicants. Evidence supporting this exception might
also have been arguably relevant in determining whether PBS was a
successor in the context of Sec. 8(a)(5)—i.e., whether the work per-
formed at the new operation differed significantly from the work per-
formed at the former operation. However, PBS’s supporting brief to
the Board cited no evidence contrary to the judge’s finding and did not
address work qualifications at all. In fact, the record supports the
final,16 and they amply support our successorship deter-
mination. The record demonstrates (1) that there was
substantial continuity between Clean Right’s operation
and that of PBS, notwithstanding PBS’s assertion that it
supervised the operation differently; and (2) that the bar-
gaining unit remained appropriate.
1.
Substantial continuity of operations is readily apparent
from the factual findings of the judge. In turn, we are not
persuaded by the assertions of PBS that a remand is re-
quired for additional fact-finding and to permit it to in-
troduce additional evidence on this point.
PBS took over night cleaning of the building the same
day that it submitted its bid to AM. 350 NLRB at 1018-
1019. It did so without viewing the property or develop-
ing any distinct plan for a cleaning operation tailored to
this particular building.17 In addition, in all of PBS’s
hiring interviews with the Clean-Right discriminatees
who applied to retain their jobs, there was no discussion
of specialized skills with any type of equipment. Id. at
1022–1023. Consistent with this, in defending against
the refusal-to-hire allegations, PBS asserted (in the
judge’s paraphrase) that although the discriminatees “had
great experience in the building . . . they could be re-
placed by workers who could learn the job very quickly.”
Id. at 1035.
All of these findings support the conclusion that the
PBS office cleaning operation was very similar to Clean-
Right’s preceding operation. As the judge summarized:
“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 op-
erations.” Id. at 1040. And again: “AM and PBS em-
ployees 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.”18 Id. at 1041.

judge’s finding, which the Board adopted by affirming the 8(a)(3)
violations. Accordingly, the judge was also correct in finding that
neither the unit jobs nor the employees’ related work qualifications
were changed by PBS.
16 See Sec. 102.46(b)(2) and (g) of the Board’s Rules and Regula-
tions.
17 During the negotiations between PBS and AM over their service
contract—which were completed in 2 days or less—the principals
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, but used a “formula” to “calculate the
number of employees needed.” PBS also consulted a real estate refer-
ence book containing the “physical specifications of buildings in Man-
hattan.”
18 To support its contention that the work performed had significant-
ly changed, PBS cites an incident on July 12, 2000, 6 weeks after PBS
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 5
PBS nonetheless asserts that a remand for additional
fact finding is necessary, and that it can provide addi-
tional evidence to show that its cleaning operation at 80-
90 Maiden Lane differed significantly from the Clean-
Right operation. PBS contends that while Clean-Right
“exists exclusively [and] operates solely as a means by
which Witkoff [its corporate owner] can maximize re-
turns on its various real estate investments,” PBS “is in
the business of providing cleaning and janitorial services
to the open market.” PBS further implies that the far-
flung scope of Clean-Right’s operations— “beyond New
York into New Jersey, Philadelphia, Chicago, Detroit,
Hawaii, and Dallas”—requires Clean-Right to maintain
“its own management structure at each location,” while
PBS’s more concentrated operations at “many dozens of
locations throughout New York City and in parts of
neighboring New Jersey and Connecticut” allow it to
maintain a “headquarters-based approach.”
We reject this argument for several reasons. First, in
order to justify a remand, PBS cannot rest on the simple
assertion that material evidence not already in the record
is available; it must identify such evidence.19 It has not
done so.20 Second, as noted above, the test for a single
successorship is entirely subsumed within the test for a
joint successorship. PBS was therefore required to pre-
sent at the hearing all the additional evidence it belatedly
claims to be relevant to its defense. Nor does PBS claim
that it was precluded from introducing any such evidence
by the absence of a single successorship allegation in the
complaint. Finally, even assuming there were evidence
confirming that PBS’s corporate purposes are different
from Clean-Right’s, such evidence would be immaterial
here, because it has no bearing on whether, from the per-
spective of the employees, they would reasonably view

took over the building’s cleaning operation, in which former Clean-
Right employee Zoila Gonzalez declined to accept hire by PBS because
she would have been required to perform “heavier” cleaning work (with
a mop) than before. At the Clean-Right operation, such work had been
performed by male porters and Gonzalez, for health reasons, had not
been required to use a mop. However, PBS’s policy that “all the wom-
en employees mopped,” 350 NLRB at 1023-1024, did not establish a
change in the work of the unit; it indicated only that one particular task
was assigned to a different unit employee.
19 See Grinnell Fire Protection Systems, 307 NLRB 1452, 1452 fn.
2 (1992); NLRB Rules and Regulations Sec. 102.48(d)(1) (motions to
reopen the record).
20 Nor has PBS cited any specific evidence from the current record
to support its asserted differences from Clean-Right. While this is
consistent with PBS’s assertion that a remand is necessary, the test for
sole successorship, as shown above, is essentially subsumed in the test
for joint successorship. PBS has also already contested its liability as a
successor “under any other [than joint successor] legal theory.” It is
therefore indicative that PBS can offer no relevant evidence from the
lengthy record already compiled to negate its having been a single
successor of Clean-Right.
their jobs as essentially unaltered. As we have found, the
Clean-Right and PBS employees performed “essentially
the same work in the same building in the same manner
. . . using similar equipment.”
Nor are we persuaded that an asserted difference in su-
pervision between Clean-Right and PBS is significant
here, either factually or legally. PBS argues that Clean-
Right maintained “site-specific” supervision at the build-
ing, whereas PBS centralizes the supervision of its
worksites offsite and assigns no on-site supervisors. Ac-
cording to PBS, additional evidence would confirm that
“[a]lthough, at first glance, it might appear as though
PBS and Clean-Right perform similar work—cleaning
office buildings—the method in which the work was
supervised and ultimately performed is readily distin-
guished.” Even assuming that PBS’s supervision was to
some degree more centralized than Clean-Right’s, this
distinction does not prevent a finding of continuity of
operations. As explained above, there is no indication in
the record of any discontinuity in the unit employees’
jobs or their working conditions, work processes, product
(office cleaning), or customer (the same building).21
But in any case, the supposed distinction does not
withstand careful scrutiny. The record reveals that, in
fact, Clean-Right and PBS handled supervision at the
building in a similar way. Clean-Right had an employee
apparently designated a “foreman,” but PBS does not
assert that Clean-Right’s “foreman” was a statutory su-
pervisor under Section 2(11) of the Act. In turn, PBS
hired Dennis Henry, who had been employed by AM at
75 Maiden Lane, the building across the street,22 to work
at 80–90 Maiden Lane at the outset of the changeover as
a quasi-supervisory employee.23 The judge found that
Henry, in his new position, distributed keys and supplies
to the cleaners at the start of the night shift and collected
them at the end, “ensur[ed] that the work was done
properly,” inspected cleaned areas, and directed that

21 It is unclear whether PBS contends that the record should be reo-
pened to receive further evidence on the supervision issue (“Although
the record developed before the ALJ is not conclusive . . .”), but if it
does, we reject the contention. PBS has identified no evidence outside
the record that would confirm any specific discontinuities in supervi-
sion, nor does it assert that the absence of a single successorship allega-
tion in the complaint prevented it from introducing any such evidence
at the hearing.
22 Under a separate service contract, PBS already provided cleaning
services for AM at 75 Maiden Lane at the time it took over the cleaning
operation at 80-90 Maiden Lane. The cleaning employees at 75 Maid-
en Lane were unrepresented.
23 In fact, AM urged PBS to “consider Henry for a supervisory role
for the building” before PBS took over the building’s cleaning opera-
tion. 350 NLRB at 1021. The PBS-AM service contract for 80-90
Maiden Lane also specified that “at your [AM’s] request, the monthly
rate incorporates the retention of one night supervisor.” Id. at 1019.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
work be redone where necessary.24 Although the judge
concluded that Henry did not responsibly direct employ-
ees or assign work beyond “routine implementation of
assignments already known by the employees,” and that
he was therefore not a statutory supervisor for PBS,25 he
also found that Henry was an agent of PBS, observing
that “AM [and] PBS . . . all referred to Henry as their
supervisor, and [PBS’s regional supervisor] told [one]
employee that Henry was her supervisor . . . . The em-
ployees 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.”26 For these reasons, employees
would reasonably view their on-site supervision as essen-
tially unaltered.
2.
The remaining issue is whether a unit of PBS employ-
ees at 80-90 Maiden Lane is an appropriate bargaining
unit. PBS contends that the record evidence indicates
that only a multi-location unit is appropriate. It simulta-
neously contends that it would be impossible to analyze
whether a single-location unit is appropriate given what
it terms the “paucity” of information in the record con-
cerning this issue. We reject both contentions.
As the court noted, a preexisting bargaining unit re-
mains presumptively appropriate after a change in the
employing enterprise, and the alleged successor employ-
er has the burden of rebutting this presumption. Van
Lear Equipment, 336 NLRB 1059 (2001). The presump-
tion is “particularly strong where . . . the employees have
historically been represented in a single-location unit,” as
was the case here. Id., citing Montauk Bus Co., 324
NLRB 1128, 1135 (1997). Moreover, the evidentiary
burden on the party challenging a historical unit “is a
heavy one.”27
To rebut the presumption, PBS must show that the
functional integration between 80-90 Maiden Lane and
its other operations is “so substantial as to negate the
separate identity of the single-facility unit.”28 To do so,
PBS would be required to show that the unit has been so
integrated with its other operations that it no longer has a
separate identity, on the basis of “such factors as central
control over daily operations and labor relations, includ-

24 Id. at 1032.
25 Id. at 1032-1033.
26 Id. at 1033-1034.
27 Trident Seafoods, 318 NLRB 738, 738 (1995), enfd. in relevant
part 101 F.3d 111 (D.C. Cir. 1996).
28 Orkin Exterminating Co., 258 NLRB 773, 773 (1981). See also
Van Lear Equipment, 336 NLRB at 1063; Montauk Bus Co., 324
NLRB at 1135; Penn Color, Inc., 249 NLRB 1117, 1119 (1980).
ing extent of local autonomy; similarity of skills, func-
tions, and working conditions; degree of employee inter-
change; and bargaining history, if any.”29
For the reasons explained above, PBS was effectively
required to make that showing at the hearing with respect
to either a joint or a single successorship. But it made no
such showing. In fact, when asked by the judge at the
outset of the hearing whether PBS was contending for a
two-building unit, its counsel stated that “we don’t really
think it makes a difference—single or double.”30 Per-
gament applies “with particular force where the finding
of a violation is established by the testimonial admissions
of the Respondent's own witnesses,” 296 NLRB at 334,
or, as in this case, of the Respondent’s own counsel. In
short, the appropriateness of the single-unit presumption
was well established when PBS litigated the underlying
case, but PBS effectively waived the issue at trial.
Nevertheless, PBS now asserts that “only a multi-unit
location is appropriate in this instance.”31 We find no
merit to this assertion, which is based (except in one in-
stance) only on conclusory statements without record
support.32 Moreover, as the Union notes, PBS has al-
ready admitted in a previous case that single units were
appropriate at three of its other New York sites, and the
Board so found.33 That PBS does not claim that its oper-
ation at 80–90 Maiden Lane differed from PBS’s other
operations in New York undermines any argument it
could make that a single-facility unit here is inappropri-
ate.

29 D&L Transportation, 324 NLRB 160, 160 (1997).
30 Our dissenting colleague dismisses this admission and its signifi-
cance by asserting that “PBS could have reasonably chosen a litigation
strategy aimed at defeating the General Counsel’s case on the threshold
joint-employer issue.” But PBS’s litigation strategy does not alter the
fact that, even under the General Counsel’s original theory of the case,
the unit issue was present from the beginning and PBS had every op-
portunity and incentive to demonstrate that the unit was inappropriate
under the employee-based criteria reviewed above.
31 PBS initially contended in its answer to the complaint that the ap-
propriate unit would encompass two sites, including the adjoining
building, 75 Maiden Lane. In its post-remand position statement to the
Board, however, PBS implies that the unit could include all of its “New
York City-area buildings.” In between, as noted above, PBS stated to
the judge at the hearing that “we don’t really think it makes a difference
– single or double.” PBS’s inconsistency on this issue further dimin-
ishes the force of its argument.
32 According to our dissenting colleague, “PBS is not resting on the
bald assertion that other evidence is available” with respect to the unit
appropriateness issue, but “[r]ather . . . has pointed to the need to de-
velop facts relevant to a defense it did not know it had to present.” But,
again, the unit issue was present in the case from the beginning.
33 See Planned Building Services, 347 NLRB 670, 678, 717 (2006)
(PBS III). PBS asserts that this is a “red herring” on the ground that the
collective-bargaining agreements for those units are “nearly verbatim
duplications of each other.” Similarity between the contracts, however,
is irrelevant to whether the PBS single-location units are appropriate.
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 7
PBS claims that its employees at 80-90 Maiden Lane
engaged in “rapid and frequent interchange” with its em-
ployees at other locations. In support, PBS cites evi-
dence that more than 50 employees worked intermittent-
ly at 80-90 Maiden Lane, although the location typically
needed only 12 employees at a time. PBS urges that this
factor supports a finding that a single-facility unit is in-
appropriate.
PBS’s argument is wide of the mark because it equates
the undisputed turnover of employment and the perma-
nent transfer of employees between its worksites with
actual, day-to-day employee interchange on the job. The
record does show that some PBS employees transfer
from one worksite to another, either of their own volition
or at management’s request.34 But it is well established
that permanent transfers are a less significant indication
of actual interchange than temporary transfers. See, e.g.,
Deaconess Medical Center, 314 NLRB 677, 677 fn. 1
(1994); Red Lobster, 300 NLRB 908, 911 (1990). More
importantly, the existence of such permanent transfers
does not alter the fact that PBS employees go to work at
the same building on a day-to-day basis until they choose
to quit, are discharged, or transfer to another site. And
the record does not establish day-to-day interchange be-
tween PBS employees at 80-90 Maiden Lane and at other
locations; indeed, it supports the opposite conclusion.
PBS employees at 80-90 Maiden Lane testified without
contradiction that they were rarely if ever assigned to
work at 75 Maiden Lane, the building across the street
also cleaned by PBS. Henry, whom the judge found to
be PBS’s agent, confirmed that employees at 80-90
Maiden Lane were only assigned to work at 75 Maiden
Lane “once in a blue moon.” He also testified that the
PBS employees at 75 Maiden Lane “never” worked at
80-90 Maiden Lane. In short, PBS has failed to show
that the employees it hired at 80–90 Maiden Lane had
interchange with employees at other PBS units in the
regular course of their work.35
In sum, PBS has cited no record evidence that would
rebut the presumption that the surviving single-location
unit remains appropriate here. PBS contends, in the al-
ternative, that the “paucity” of information concerning
the appropriateness of a single-facility unit at 80-90

34 For example, of the 11 employees who initially constituted the
PBS unit at 80–90 Maiden Lane, 7 were new hires and 4 were trans-
ferred from other buildings. 350 NLRB at 1021.
35 P.S. Elliott Services, 300 NLRB 1161 (1990), cited by PBS, is not
to the contrary. In P.S. Elliott, the Board found that employees were
not hired to work at “a particular jobsite” but rather were hired “based
on the overall needs of the company.” 300 NLRB at 1162. Thus, un-
like in this case, those employees were hired to move between
worksites in the regular course of work.
Maiden Lane requires a remand. Again, we disagree.
PBS does not indicate what evidence it would introduce
on remand, or why it would rebut the single-facility pre-
sumption. Nor does it explain why it did not introduce
that evidence at the hearing. Its failure to do so is espe-
cially significant, since the appropriateness of the bar-
gaining unit was a central issue in the case.
PBS does assert that because of the complaint’s “spe-
cific allegations,” it did not introduce certain evidence
purportedly undercutting the significance of the single-
location contracts at some of its other facilities. There is
no merit to that assertion. That evidence, as we have
stated, is irrelevant. And if it were relevant, it should
have been offered at the hearing regardless of whether
the complaint alleged single or joint successorship, be-
cause the appropriateness of a single-facility unit at 80-
90 Maiden Lane was a key issue under either theory.
IV.
We therefore find that that PBS individually was a
successor employer; that the surviving single-facility unit
at 80-90 Maiden Lane remained appropriate for bargain-
ing; and that PBS was accordingly required to recognize
and bargain with the unit’s bargaining representative at
the time of the successorship.36 PBS’s refusal to do so
consequently violated Section 8(a)(5). We turn now to
the appropriate remedy.
In Planned Building Services, 347 NLRB 670
(2006)(PBS III), a similar case involving PBS, the Board
confirmed that the appropriate remedy for a successor’s
unlawful refusal to hire the predecessor’s represented
employees and unilateral implementation of new terms
of employment is as follows:
[T]o remedy the 8(a)(3) violation, the successor must:
(1) offer reinstatement to the discriminates; and
(2) make the discriminatees whole for their losses.
To remedy the 8(a)(5) violation, the successor must:
(1) at the union’s request, restore the terms and condi-
tions of employment established by the predecessor, re-
scinding the unilateral changes made by the successor;
(2) recognize and bargain with the union; and
(3) make its employees whole for their losses.
347 NLRB at 674–675.

36 PBS also asserts for the first time that the Union made no timely
bargaining demand. However, no demand was required because PBS’s
unlawful refusal to hire the Clean-Right employees made any such
request futile. Smith & Johnson Construction Co., 324 NLRB 970
(1997); Precision Industries, 320 NLRB 661, 711 (1996), enfd. 118
F.3d 585 (8th Cir. 1997), cert. denied 523 U.S. 1020 (1998).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
The Board’s underlying decision in this case found
that PBS had violated Section 8(a)(3) by discriminatorily
refusing to hire certain Clean-Right employees and or-
dered the appropriate remedy for that violation, requiring
PBS to hire those employees and to make them whole for
loss of earnings and other benefits suffered. 350 NLRB
at 1008, 1010. Accordingly, although the court enforced
that part of the Board’s order, the 8(a)(3) remedy provid-
ed make-whole relief only for the Clean-Right discrimi-
natees whom PBS refused to hire. We must now provide
a remedy for the Section 8(a)(5) violation we have found,
in order to make whole the unit employees PBS hired to
replace the discriminatees and any other unit employees
PBS hired later during the remedial period.
Remedial backpay and benefits are “measured by the
predecessor’s terms and conditions of employment.”
Pressroom Cleaners, 361 NLRB No. 57, slip op. at 2
(2014). Ordinarily, the backpay period extends from the
date of the successor’s unlawful refusal to bargain “until
the parties bargain in good faith to agreement or im-
passe.” Id. at 6, reversing PBS III, supra, in this respect.
Here, however, AM terminated PBS’s service contract
for 80–90 Maiden Lane as of June 15, 2001, thereby
eliminating any connection between PBS and the bar-
gaining unit. That contract-termination date, according-
ly, fixes the end of the Section 8(a)(5) make-whole peri-
od.
The make-whole remedy shall be computed in accord-
ance with Ogle Protection Service, 183 NLRB 602
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest
as prescribed in New Horizons, 283 NLRB 1187 (1987),
compounded daily as prescribed in Kentucky River Medi-
cal Center, 356 NLRB 6 (2010). In addition, in accord-
ance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall order PBS to com-
pensate affected employees for the adverse tax conse-
quences, if any, of receiving a lump-sum backpay award
and to file a report with the Regional Director for Region
2 allocating the backpay awards to the appropriate calen-
dar year for each employee. PBS shall also remit any
payments it owes to employee benefit funds in the man-
ner set forth in Merryweather Optical Co., 240 NLRB
1213 (1979), and reimburse employees for any expenses
resulting from its failures to make such payments as set
forth in Kraft Plumbing & Heating, 252 NLRB 891, 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981).
Because PBS no longer has a relationship to the bar-
gaining unit, we see no basis under Section 8(a)(5) for
ordering PBS to bargain with the Union or to take any
other affirmative action with respect to unit employees
beyond the make-whole remedy described here. Moreo-
ver, in its underlying decision, the Board found that a
broad cease-and-desist order should be issued against
PBS in light of its violations of Sections 8(a)(1), (2), and
(3) and its demonstration, as in previous Board cases, of
animus toward the Union.37 That broad cease-and-desist
order was enforced by the Second Circuit,38 and we note
that it remains in effect. For these reasons, we find it
unnecessary to now issue another cease-and-desist order,
narrow or broad.
By contrast, we do find it appropriate to issue an af-
firmative corporatewide order and to require corpo-
ratewide posting of the attached remedial notice.39 The
Board has previously found that a corporatewide order
and remedial notice posting was justified in view of
PBS’s clear pattern and practice of unlawful conduct and
the likelihood that PBS would commit unlawful actions
at its other facilities against other employees.40 The
Board did the same in PBS III.41 For the same reasons,
we will issue a corporatewide order and notice posting
for the violations found here. Further, because PBS no
longer services the 80–90 Maiden Lane location, we
shall order PBS to mail a copy of the remedial notice to
all unit employees who were employed at 80–90 Maiden
Lane during the period April 25, 2000. through June 15,
2001.
ORDER
Respondent Planned Building Services, Inc., New
York, New York, Fairfield, New Jersey (PBS), its offic-
ers, agents, successors, and assigns, shall
1. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole, in the manner set forth in the remedy
section of this decision, all employees who were mem-
bers of the bargaining unit formerly represented by Local
32BJ, Service Employees International Union, at 80–90
Maiden Lane, New York, New York, for any losses
caused by the Respondent’s failure to apply the terms
and conditions of employment that existed prior to its
commencing operations at 80–90 Maiden Lane.
(b) Compensate affected employees for the adverse
tax consequences, if any, of receiving lump-sum backpay
awards, and file with the Regional Director for Region 2,
within 21 days of the date the amount of backpay is

37 350 NLRB at 1046. See also PBS III, supra; Planned Building
Services, 330 NLRB 791 (2000) (PBS II); and Planned Building Ser-
vices, 318 NLRB 1049 (1995) (PBS I).
38 647 F.3d at 450.
39 The notice conforms to our decision in Durham School Services,
360 NLRB 694 (2014).
40 350 NLRB at 1009 (citing 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)).
41 PBS III, supra, 347 NLRB at 677.
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 9
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
year(s) for each employee.
(c) 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.” Copies of the notice, on forms pro-
vided by the Regional Director for Region 2, after being
signed by PBS's authorized representative, shall be post-
ed by PBS and maintained for 60 consecutive days in
conspicuous places, including all places where notices to
employees are customarily posted. In addition to physi-
cal posting of paper notices, notices shall be distributed
electronically, such as by email, posting on an intranet or
an internet site, and/or other electronic means, if PBS
customarily communicates with its employees by such
means. Notices shall be posted in English and Spanish.
Reasonable steps shall be taken by PBS to ensure that the
notices are not altered, defaced, or covered by any other
material.
(d) Within 14 days after service by the Region, mail a
copy of the attached notice marked “Appendix” to all
employees in the above unit who were employed at 80-
90 Maiden Lane during the period April 25, 2000,
through June 15, 2001. Notices shall be in English and
Spanish. The notices shall be mailed to the last known
address of each of the employees after being signed by
the authorized representative of PBS.
(e) Within 21 days after service by the Region, file
with the Regional Director for Region 2 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that PBS has taken to com-
ply.
Dated, Washington, D.C. December 15, 2017
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
CHAIRMAN MISCIMARRA, dissenting.
This case is before us on remand from the United
States Court of Appeals for the Second Circuit, which
affirmed in part, vacated in part, and remanded in part
the Board’s decisions in AM Property Holding Corp.,
350 NLRB 998 (2007), and AM Property Holding Corp.,
355 NLRB 721 (2010) (incorporating by reference 352
NLRB 279 (2008)). See Service Employees Internation-
al Union, Local 32BJ v. NLRB, 647 F.3d 435 (2d Cir.
2011). In relevant part, the Court affirmed the Board’s
findings that Respondents Planned Building Services
(PBS) and AM Property Holding Corp. (AM) were not,
as the General Counsel had alleged in the complaint,
joint employers and joint legal successors to unionized
predecessor Clean-Right, and therefore PBS and AM did
not have a joint obligation to bargain with Local 32BJ,
Service Employees International Union (Union) as the
representative of a unit of employees formerly employed
by Clean-Right at an office building located at 80-90
Maiden Lane in Manhattan (80-90 Maiden Lane), which
AM had recently acquired.
However, citing Pergament United Sales, 296 NLRB
333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990), the Court
disagreed with the Board’s finding that the Board was
precluded from deciding an issue that was not alleged in
the complaint: whether PBS was individually a legal
successor to Clean-Right.1 The Court directed the Board
to determine whether this unalleged “individual succes-
sor” issue may be decided on the existing record con-
sistent with due process, and if not, whether a remand to
the administrative law judge is warranted to provide PBS

1 In Pergament United Sales, supra, the Board held that it “may find
and remedy a violation even in the absence of a specified allegation in
the complaint if the issue is closely connected to the subject matter of
the complaint and has been fully litigated.” 296 NLRB at 334.
The elements of legal successorship were addressed by the Supreme
Court in NLRB v. Burns Security Services, 406 U.S. 272 (1972)
(Burns), and Fall River Dyeing and Finishing Corp. v. NLRB, 482 U.S.
27 (1987) (Fall River Dyeing). A legal successor is an employer that
(i) acquires, and continues in substantially unchanged form, the busi-
ness of a unionized predecessor, and (ii) hires as a majority of its work-
force, or of a segment of its workforce constituting an appropriate
bargaining unit, the predecessor’s union-represented employees.
Where these elements are present, the new employer is a legal succes-
sor to the unionized predecessor employer, and it must recognize and
bargain with the unit employees’ incumbent bargaining representative
if and when that representative demands recognition or bargaining.
However, even if the new employer is a successor obligated to recog-
nize and bargain with the union, it is not required to adopt its predeces-
sor’s terms and conditions of employment but may unilaterally set its
own initial employment terms. In addition, if, in an effort to defeat
legal successorship, the new employer engages in antiunion discrimina-
tion to avoid hiring the predecessor’s employees as a majority of its
workforce, the Board will deem the new employer a legal successor as
a matter of law. Love’s Barbeque Restaurant No. 62, 245 NLRB 78,
81–82 (1979), enfd. in relevant part sub nom. Kallmann v. NLRB, 640
F.2d 1094 (9th Cir. 1981). The Board will also deem such an employer
to have forfeited the successor’s right to set initial terms and conditions
of employment unilaterally, and the new employer will be held to have
violated Sec. 8(a)(5) of the Act if it sets initial employment terms that
differ from the predecessor’s. Id. at 82. I disagree with this aspect of
Love’s Barbeque. See fn. 3, infra.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
an opportunity to litigate this issue.2
My colleagues find that due process does not require a
remand of the “individual successor” issue to the judge
for further litigation. They then conclude, based on their
interpretation of the existing record, that PBS was indi-
vidually Clean-Right’s successor and violated Section
8(a)(5) of the Act by failing to recognize and bargain
with the Union.
I respectfully disagree with my colleagues’ threshold
finding that due process permits the unalleged “individu-
al successor” issue to be decided on the existing record.
In my view, it cannot be said that the unalleged issue of
PBS’s individual successorship was fully litigated. Ra-
ther than attempting to decide this issue absent any alle-
gation or argument that PBS was individually a legal
successor to Clean-Right—and speculating, as my col-
leagues do, about what PBS should have done at the
hearing or what the record evidence “effectively”
shows—I believe we should follow the approach of the
Board in Enloe Medical Center, supra, and remand the
case to the judge.3

2 See Enloe Medical Center, 346 NLRB 854, 855–856 (2006) (re-
manding to the judge to provide the respondent an opportunity to liti-
gate a potential violation of the Act on a theory not alleged in the com-
plaint or advanced by the General Counsel).
3 Because I would find that the issue of PBS’s status as an individu-
al successor to Clean-Right has not been fully litigated, I need not and
do not reach whether the “individual successor” theory is closely con-
nected to the unfair labor practice complaint. I would leave that
threshold issue for the judge to address on remand. If he determines
that the “individual successor” issue is closely connected to the com-
plaint, he should then allow the parties to fully litigate the issue, reo-
pening the record if PBS so requests.
In its initial underlying decision, the Board found, among other
things, that AM and PBS violated Sec. 8(a)(3) and (1) by refusing to
hire or to consider for hire Clean-Right’s former employees. 350
NLRB at 1004. This unfair labor practice finding, which was not chal-
lenged on review, is no longer at issue. Citing Love’s Barbeque, supra,
245 NLRB at 82, my colleagues find that as a result of its Sec. 8(a)(3)
violations, PBS forfeited its right under Burns, supra, to set initial terms
and conditions of employment that differed from Clean-Right’s. I have
expressed my disagreement with this aspect of Love’s Barbeque. See
Pressroom Cleaners, 361 NLRB No. 57, slip op. at 7 fn. 4 (2014)
(Member Miscimarra, concurring in part and dissenting in part); CNN
America, Inc., 361 NLRB No. 47, slip op. at 43–44 (2014) (Member
Miscimarra, concurring in part and dissenting in part). See also Pacific
Custom Materials, Inc., 327 NLRB 75, 75–76 (1998) (Member Hurt-
gen, dissenting). In my view, this aspect of Love’s Barbeque deviates
from the Supreme Court’s holding in Burns that a successor is not
bound by its predecessor’s contractual obligations but rather is free to
set its own initial employment terms. Thus, I agree with former Mem-
ber Hurtgen in Pacific Custom Materials, who stated: “The 8(a)(3)
violations yield their own compensatory remedy of reinstatement and
backpay. It is excessive and punitive to use those 8(a)(3) violations to
take away the legitimate defense to an 8(a)(5) allegation concerning the
setting of initial terms.” 327 NLRB at 75–76 (Member Hurtgen, dis-
senting). Accordingly, I would overrule this aspect of Love’s Barbe-
que. To the extent the Board continues to adhere to this aspect of
Love’s Barbeque, however, I would permit the employer to present
Background
The factual details of this matter are fully set forth in
the Board’s underlying decisions and summarized in the
Court’s decision. Thus, I will only briefly review the
facts here to place the due process issue in context.
Prior to April 2000, an entity called the Witkoff Group
owned 80-90 Maiden Lane. The Witkoff Group used its
“in house” cleaning division, Clean-Right, to perform
cleaning services at 80-90 Maiden Lane. The Witkoff
Group was party to a collective-bargaining agreement
between the Union and the Realty Advisory Board on
Labor Relations, a multiemployer association of which
the Witkoff Group was a member. This agreement ap-
plied to the Clean-Right employees at 80-90 Maiden
Lane as a single-facility bargaining unit.
On April 25, 2000, AM closed on the purchase of 80-
90 Maiden Lane from the Witkoff Group. Prior to the
purchase, AM had determined that it would not hire the
incumbent Clean-Right employees but would instead
contract with PBS. Thus, on April 25, AM contracted
with PBS to provide cleaning services for AM at 80-90
Maiden Lane. At the time of the sale, there were 12
Clean-Right employees employed at 80-90 Maiden Lane.
The contract between AM and PBS provided for 1 full-
time night supervisor, 4 full-time night porters/matrons,
and 12 part-time night porters.
On April 25, Clean-Right employees were told that 80-
90 Maiden Lane had been sold, that the new contractor
was bringing in its own employees, and that there were
no applications for them. That same date, PBS hired (or,
in some instances, transferred from other worksites) 11
employees to begin working at 80-90 Maiden Lane that
evening, plus a day matron.
On April 26, AM transferred three individuals from
other properties to day-shift positions at 80-90 Maiden
Lane Thus, beginning April 26, AM directly employed
at 80-90 Maiden Lane an elevator operator and two day
porters.4 As a result of these transfers, AM did not hire
former Clean-Right employees who had been employed
at 80-90 Maiden Lane in the classifications of elevator
operator and day porter.
In May, PBS recognized and entered into a collective-
bargaining agreement with the United Workers of Amer-
ica (UWA) as the bargaining representative of its em-

evidence “that it would not have agreed to the monetary provisions
of the predecessor employer’s collective-bargaining agreement, and
further establishing either the date on which it would have bargained
to agreement and the terms of the agreement that would have
been negotiated, or the date on which it would have bargained to good-
faith impasse and implemented its own monetary proposals.” Planned
Building Services, 347 NLRB 670, 676 (2006).
4 AM also directly employed the building engineers, who had
worked at 80-90 Maiden Lane for many years.
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 11
ployees at 80-90 Maiden Lane. On February 15, 2001,
the UWA disclaimed interest in representing PBS’s em-
ployees. On April 23, 2001, almost all the PBS employ-
ees at 80-90 Maiden Lane went on strike. On May 15,
2001, AM informed PBS that it was terminating their
contract. AM then contracted with another entity,
Servco, to furnish cleaning services at 80–90 Maiden
Lane.
Based on unfair labor practice charges filed by the Un-
ion, the General Counsel issued a complaint alleging that
PBS (along with AM and Servco) had committed various
violations of the Act. As it relates to the instant remand,
the complaint alleged that AM and PBS were joint em-
ployers and joint successors, and that they jointly refused
to recognize and bargain with the Union and unilaterally
changed the unit employees’ terms and conditions of
employment in violation of Section 8(a)(5) of the Act.5
The General Counsel did not allege or otherwise argue
that either PBS or AM was individually a successor to
Clean-Right.
The administrative law judge found, among other
things, that PBS and AM were joint employers and joint
successors. On exceptions, the Board reversed the
judge’s joint-employer finding. AM Property Holding
Corp., 350 NLRB at 999–1002. Accordingly, the Board
unanimously determined that AM and PBS were not joint
successors to Clean-Right, they did not have a joint obli-
gation to recognize and bargain with the Union, and they
did not jointly violate Section 8(a)(5). Id. at 1003.6
The Board also found that it was precluded from con-
sidering whether either AM or PBS individually was a
successor to Clean-Right because the General Counsel
had not litigated a Section 8(a)(5) violation on a theory
of individual successorship. Id. at 1003–1004. The
Board explained that the General Counsel had litigated
the refusal-to-bargain allegation solely on the theory that
AM and PBS, as joint employers, unlawfully refused to
hire the Clean-Right employees because of their support
for the Union, and therefore AM and PBS were joint
successors obligated to recognize and bargain with the
Union. The Board also observed that because AM and
PBS each took over only a portion of Clean-Right’s

5 The allegation that the unit employees’ terms and conditions of
employment were unilaterally changed in violation of Sec. 8(a)(5)
when PBS set its initial employment terms depends on the theory the
Board adopted in Love’s Barbeque, supra. As explained above, I disa-
gree with this aspect of Love’s Barbeque. See supra fn. 3.
6 Member Liebman authored a separate opinion in which she criti-
cized then-existing Board precedent regarding joint-employer status,
but she agreed that “under current law, whatever its flaws, . . . none of
the respondents were successors to the unionized company (Clean-
Right).” Id. at 1011 (Member Liebman, concurring in part and dissent-
ing in part).
business, a key question in determining whether either
PBS or AM individually may have been a successor was
whether the employees in that entity’s portion of the
business constituted a separate appropriate bargaining
unit. The Board found that because the General Counsel
had not alleged or established the appropriateness of ei-
ther the separate PBS unit or the separate AM unit, this
further demonstrated that the issue of whether AM or
PBS was an individual successor was not properly before
the Board. Id. at 1003–1004.
Thereafter, the General Counsel and the Union filed
separate motions for reconsideration of the Board’s deci-
sion. As relevant here, the Union contended in its mo-
tion that the Board erred when it found that the General
Counsel had not litigated the question of whether PBS
individually was a successor to Clean-Right. In a two-
member decision, Chairman Schaumber and Member
Liebman denied the Union’s motion on the ground that
the Union had not raised any issues that the Board had
not previously considered and rejected. AM Property
Holding Corp., 352 NLRB at 281. They also noted,
however, that the General Counsel had not joined in the
Union’s motion and did not argue that PBS should be
deemed an individual successor to Clean-Right. Accord-
ingly, they concluded that the General Counsel did not
intend to litigate the case on this basis, and they rejected
the Union’s motion on the additional ground that the
General Counsel alone frames the theory of an unfair
labor practice case, and a charging party may not enlarge
upon or change the General Counsel’s theory. Id. at 281
fn. 8 (citing Tradesmen International, 351 NLRB 359 fn.
2 (2007); Kimtruss Corp., 305 NLRB 710, 711 (1991)).
The two-member decision was subsequently affirmed
and incorporated by reference in a decision by a properly
constituted Board. See AM Property Holding Corp., 355
NLRB at 721.
The Union petitioned for review in the Court of Ap-
peals for the Second Circuit, challenging, among other
things, the Board’s finding that it was precluded from
determining whether PBS was individually a successor to
Clean-Right.7 The Court found merit in the Union’s ar-
gument on the ground that the Board had misinterpreted
Pergament United Sales, supra, and related cases by er-
roneously assuming that it was necessarily precluded
from considering the individual successorship issue be-
cause the General Counsel had not alleged or advanced

7 The Court rejected the Union’s additional arguments that PBS and
AM were joint employers and joint successors and that the Board
should have ordered certain extraordinary remedies. These matters are
no longer at issue. In addition, the Respondents did not petition for
review of the Board’s violation findings, and the Board did not file a
cross-application for enforcement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
that theory. Service Employees International Union,
Local 32BJ, 647 F.3d at 447–448. The Court explained
that, under Pergament and related cases, the Board “may
identify a violation of the Act that was not specifically
alleged in the complaint or advanced by the General
Counsel if the parties had sufficient notice to satisfy due
process . . . .” Id. at 447 (emphasis in original). Thus,
the Court held that the Board should have determined
whether the theory of PBS’s individual successorship
was closely connected to the complaint and had been
fully litigated. Id. The Court also faulted the Board for
relying on the General Counsel’s failure to allege or es-
tablish the appropriateness of the separate AM and PBS
units instead of either applying the principle that a bar-
gaining unit limited to a single location is rebuttably pre-
sumed to be appropriate or explaining why that presump-
tion was not applicable here. Id. at 448–449.
Based on this analysis, the Court vacated portions of
the Board’s decision “insofar as the agency found it was
precluded from considering whether PBS was individual-
ly a successor employer to Clean-Right,” and the Court
remanded for reconsideration of this issue with the fol-
lowing instructions:
We remand so that the Board can consider in the first
instance whether PBS was an individual successor to
Clean-Right and whether—based on the particular facts
in this case—reaching this issue would comport with
due process. In so doing, the Board should apply its
single-facility presumption or articulate why this pre-
sumption is inapplicable. And if the Board finds that
due process concerns do preclude it from reaching this
issue, it should determine whether remand is appropri-
ate under Enloe, 346 NLRB at 855–56 (remanding to
the ALJ to provide the Respondent with an opportunity
to litigate a potential violation of the Act so as to reme-
dy any prejudice the Respondent might have suffered
by the Board identifying a violation on a theory not al-
leged in the complaint or advanced by the General
Counsel). Id. at 449.
The Board accepted the Court’s remand and, at our in-
vitation, the parties submitted statements of position re-
garding the issues presented by the remand. In its state-
ment of position, PBS argues that because the General
Counsel never advanced an individual successorship the-
ory and the judge otherwise did not explore it, there is
“virtually nothing” in the record to support a determina-
tion that PBS is individually a successor to Clean-Right.
Among other things, PBS argues that the existing record
does not establish “substantial continuity” between its
operations and Clean-Right’s. In addition, PBS asserts
that a single-location presumption is “wholly inappropri-
ate as applied to PBS and 80 Maiden Lane” because of
how PBS structures its business, and PBS contends that
additional evidence is required to analyze, among other
things, the functional integration of its operations. Final-
ly, PBS argues that even if a single-location unit is ap-
propriate, the Union never requested to bargain with
PBS, and therefore PBS cannot be held liable for failing
to bargain with the Union. PBS argues that a remand
would allow it to fully litigate these matters.
The General Counsel and the Union contend that the
issue of PBS’s status as an individual successor to Clean-
Right is closely connected to the complaint and was fully
litigated in the unfair labor practice hearing. The Gen-
eral Counsel and the Union argue that the Board may
make an individual successorship determination based on
the same facts that were established in connection with
the alleged joint successorship theory, and there is no
need to reopen the record to receive additional evidence.
According to the General Counsel and the Union, the
existing record supports a finding that PBS was individu-
ally Clean-Right’s successor and violated Section 8(a)(5)
of the Act. The General Counsel contends in the alterna-
tive that if the Board determines that it does not comport
with due process to address the individual successorship
issue on the existing record, then the Board should re-
mand the issue to the judge for further litigation.
Discussion
In accordance with the Court’s instructions on remand,
the threshold question we must answer is whether due
process permits us to rule on the issue of PBS’s status as
an individual successor. If we find that it does not, then
we must then consider whether to remand this issue to
the judge.
It is settled that the “fundamental elements of proce-
dural due process are notice and an opportunity to be
heard.” Lamar Advertising of Hartford, 343 NLRB 261,
264 (2000) (citing Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 313 (1950)). “The primary
function of notice is to afford respondent an opportunity
to prepare a defense by investigating the basis of the
complaint and fashioning an explanation of events that
refutes the charge of unlawful behavior.” Pergament
United Sales, Inc. v. NLRB, 920 F.2d 130, 135 (2d Cir.
1990). If an issue is closely connected to the subject
matter of the complaint and has been fully litigated, the
Board may find and remedy a violation of the Act even
in the absence of a specific allegation in the complaint.
Pergament, 296 NLRB at 334. The ultimate determina-
tion of whether a matter has been fully litigated rests in
part on “whether the respondent would have altered the
conduct of its case at the hearing, had the specific allega-
tion been made.” Id. at 335.
For several reasons, I believe that my colleagues deny
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 13
PBS due process of law by deciding the issue of its status
as an individual successor to Clean-Right on the existing
record. In my view, a remand is warranted to permit
PBS to litigate this issue.
First, not once, but twice, the Board found that the
General Counsel did not litigate this case on the theory
that PBS individually was Clean-Right’s legal successor.
Indeed, the Board went even further. Noting that the
General Counsel did not join the Union’s motion for re-
consideration, the Board concluded that the General
Counsel had affirmatively decided not to litigate the case
on a theory of individual successorship, and the Board
deemed the Union’s reconsideration motion an improper
attempt to enlarge upon or change the General Counsel’s
theory of the case. AM Property Holding Corp., 352
NLRB at 281 fn. 8. I recognize that the Board, having
accepted the Court’s remand, must apply the Court’s
decision as the law of the case, and therefore the Board
must view whether PBS’s status as an individual succes-
sor was fully litigated as an open question. But I do not
see how my colleagues can reasonably answer that ques-
tion in the affirmative when the General Counsel neither
litigated a theory of individual successorship at the unfair
labor practice hearing nor joined the Union’s attempt to
urge that theory on reconsideration.8
Second, the mere fact that the record may contain evi-
dence relevant to determining whether PBS was individ-
ually Clean-Right’s successor does not dispose of due
process concerns. As the Board and the Courts have
observed, “‘the presence of evidence in the record to
support a charge unstated in a complaint . . . does not
mean the party against whom the charge is made had
notice that the issue was being litigated.’” Enloe Medi-
cal Center, 346 NLRB at 855 (quoting Conair Corp. v.
NLRB, 721 F.2d 1355, 1372 (D.C. Cir. 1983), cert. de-
nied sub nom. Ladies Garment Workers Local 222 v.
NLRB, 467 U.S. 1241 (1984)); see also NLRB v. Quality
C.A.T.V., Inc., 824 F.2d 542, 547 (7th Cir. 1987) (“[T]he
simple presentation of evidence important to a . . . claim
does not satisfy the requirement that any claim at vari-
ance from the complaint be ‘fully and fairly litigated’ in
order for the Board to decide the issue without trans-
gressing . . . due process rights.”). When the record was
created at the unfair labor practice hearing, PBS was not
on notice that the evidence being adduced might be used

8 The Court vacated the Board’s decisions insofar as the Board
found it was precluded from considering an individual successorship
theory because the General Counsel had not alleged or litigated such a
theory. Service Employees International Union, Local 32BJ, 647 F.3d
at 450. It is undisputed, however, that the General Counsel did not
allege or litigate this theory, and the Court did not disturb the Board’s
finding in this regard.
to support a claim that it was individually Clean-Right’s
successor and individually violated Section 8(a)(5) of the
Act by failing to recognize and bargain with the Union.
Now that PBS is on notice of this claim, due process
requires that it be afforded an opportunity to introduce
additional relevant evidence. This requires a remand.
Third, as the Second Circuit itself emphasized, PBS
can only be found an individual successor to Clean-Right
if, among other things, “the bargaining unit that the
[U]nion seeks to represent remains appropriate under
[PBS’s] operations.” Service Employees International
Union, Local 32BJ, 647 F.3d at 448 (internal quotations
omitted). The issue of whether the surviving unit of PBS
employees at 80–90 Maiden Lane remained appropriate
has not been fully litigated. The Court instructed the
Board to apply its presumption that a single-location unit
is appropriate. But this presumption is rebuttable, and
PBS is entitled to an opportunity to rebut it. In this re-
spect, two issues would benefit from the development of
a record on remand.
Because AM displaced some union-represented Clean-
Right employees when it directly hired its own elevator
operator and day porters to work at 80-90 Maiden Lane,
it could be argued that the surviving unit of PBS employ-
ees was materially different from the original Clean-
Right unit and was no longer appropriate. Although a
reduction in the size of a unit does not, by itself, mean
that the unit is no longer appropriate—see, e.g., The
Bronx Health Plan, 326 NLRB 810, 812 (1989), enfd.
203 F.3d 41 (D.C. Cir. 1999)—PBS is entitled to an op-
portunity to litigate whether the PBS unit remained ap-
propriate in light of the removal of the elevator operator
and day porter positions from the previous Clean-Right
unit.
PBS argues that only a multi-location unit is appropri-
ate, and it suggests that an appropriate unit would include
employees at all its New York City–area buildings. PBS
states that the record is not fully developed on this point
but that what limited evidence has been introduced sup-
ports the appropriateness of a multilocation unit. It cites,
as an example, evidence that more than 50 different PBS
employees worked intermittently at 80-90 Maiden Lane,
even though that building typically needs just 12 em-
ployees at any particular time. PBS further asserts that
there was “zero labor relations autonomy” at 80–90
Maiden Lane and that there is “rapid and frequent inter-
change evidencing the commonality of work rules and
centralized control exercised by PBS.” It also argues that
a record developed on remand would shed light on its
centralized control of operations and show that PBS em-
ployees working at various locations interact with one
another and transfer between and among PBS’s various
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
New York City–area facilities. Regardless whether PBS
would ultimately succeed in rebutting the presumption
that a unit limited to its employees at 80–90 Maiden
Lane was appropriate, it has raised legitimate questions
regarding this issue that cannot be adequately answered
on the existing record. Contrary to my colleagues, PBS
is not resting on the bald assertion that other evidence is
available. Rather, it has pointed to the need to develop
facts relevant to a defense it did not know it had to pre-
sent in the underlying unfair labor practice hearing.
Thus, a remand is warranted.
My colleagues contend that PBS “was effectively re-
quired to make” its arguments with respect to the single-
facility presumption at the underlying hearing because
the joint successorship theory advanced by the General
Counsel overlapped with an unalleged individual succes-
sorship theory. Thus, my colleagues say that PBS
“should” have presented all its evidence regarding unit
appropriateness at the hearing. And they claim that PBS
“effectively waived the [appropriate unit] issue at trial”
when its counsel was asked by the judge at the outset of
the hearing whether PBS was contending for a two-
building unit and replied that “we don’t really think it
makes a difference—single or double.” However, my
colleagues’ reasoning ignores an elemental reality: given
that the General Counsel’s theory of the case was that
PBS and AM were joint employers and therefore joint
successors with a joint obligation to recognize and bar-
gain with the Union, PBS could have reasonably chosen
a litigation strategy aimed at defeating the General Coun-
sel’s case on the threshold joint-employer issue. Such a
strategy would have been focused on demonstrating that
PBS and AM did not “share or codetermine those matters
governing the essential terms and conditions of employ-
ment” of PBS’s employees, NLRB v. Browning-Ferris
Industries of Pennsylvania, Inc., 691 F.2d 1117, 1124
(3d Cir. 1982), and it would have ignored issues of unit
appropriateness as irrelevant to joint-employer status.
This would also explain counsel’s remark: if PBS’s liti-
gation strategy was aimed at defeating the General Coun-
sel’s joint-employer theory, it would not have made any
difference whether the smallest appropriate unit was a
single-building or multibuilding unit. These considera-
tions illustrate why the mere fact that a hearing record
contains evidence relevant to a particular issue does not
satisfy due process if the respondent was not on notice
that the particular issue was at issue. See Enloe Medical
Center, 346 NLRB at 855; Conair Corp. v. NLRB, 721
F.2d at 1372.9

9 PBS also argues that a remand is warranted to show that it was not
obligated to bargain with the Union because the Union did not demand
bargaining. My colleagues say that a demand was not required in these
In sum, I respectfully dissent from my colleagues’ de-
cision. Contrary to my colleagues, I believe the Board
must remand the issue of PBS’s status as an individual
successor to Clean-Right to the administrative law judge.
If the judge were to determine that this issue was closely
connected to the complaint, PBS would then have a right
to fully litigate it.
Dated, Washington, D.C. December 15, 2017
______________________________________
Philip A. Miscimarra, Chairman
NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED AND MAILED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

circumstances because PBS unlawfully refused to hire the former
Clean-Right employees. It is well established, however, that a succes-
sor employer’s obligation to recognize and bargain with the union
commences only if and when several conditions are met: there must be
substantial continuity in the business, the successor must be engaged in
normal operations with a substantial and representative complement of
employees, a majority of the successor’s employees must have been
previously employed as union-represented employees of the predeces-
sor employer, and the union must have presented a demand for recogni-
tion or bargaining. St. Elizabeth Manor, 329 NLRB 341, 344 fn. 8
(1999); Royal Midtown Chrysler Plymouth, 296 NLRB 1039, 1040
(1989); see generally Burns, 406 U.S. at 272; Fall River Dyeing, 482
U.S. at 27. I respectfully disagree with my colleagues that the Board
may disregard the latter requirement (a union demand for bargaining)
whenever an alleged successor engaged in antiunion hiring discrimina-
tion. It is well established that the union’s demand for bargaining es-
tablishes the “moment” in time when the Board evaluates whether the
other prerequisites to successor status have been satisfied. See Creative
Vision Resources, LLC, 364 NLRB No. 91, slip op. at 12-13 (2016)
(Member Miscimarra, dissenting in part) (the fact that a new employer
might otherwise be a “perfectly clear” successor does not permit the
Board to disregard the union’s failure to present a demand to the suc-
cessor for recognition or bargaining), enfd. 872 F.3d 274 (5th Cir.
2017). Accordingly, I believe the Board must also permit PBS to pre-
sent evidence on this issue on remand.
PBS also argues that it should be allowed to present evidence on re-
mand regarding substantial continuity of operations between PBS and
Clean-Right. My colleagues find that the present record establishes
substantial continuity of operations, but PBS disagrees. I believe that it
would be difficult to untangle the issue of substantial continuity of
operations from issues relating to unit appropriateness. Accordingly, I
would permit PBS to litigate this issue on remand as well.
AM PROPERTY HOLDING CORP., MAIDEN 80/90 NY LLC 15
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL make whole the employees who were mem-
bers of the bargaining unit represented by Local 32BJ,
Service Employees International Union, at 80-90 Maiden
Lane, New York, for losses caused by our failure to ap-
ply the terms and conditions of employment that existed
in that unit prior to our commencing operations at that
location.
WE WILL compensate affected employees for the ad-
verse tax consequences, if any, of receiving lump-sum
backpay awards, and WE WILL file with the Regional Di-
rector for Region 2, within 21 days of the date the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay awards to
the appropriate calendar year(s) for each employee.
AM PROPERTY HOLDING CORP.
The Board’s decision can be found at
www.nlrb.gov/case/02-CA-033146 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington,
D.C. 20570, or by calling (202) 273-1940.