Emerald Green Building Services, LLC

National Labor Relations Board - Board Decisions

Aug 26, 2016

364 NLRB No. 109 (N.L.R.B. 2016)

364 NLRB No. 109
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.
Emerald Green Building Services, LLC and Service
Employees International Union, Local 32BJ and
International Brotherhood of Teamsters Local
Union No. 25. Cases 01–CA–147341 and 01–CA–
147345
August 26, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On September 10, 2015, Administrative Law Judge
Raymond P. Green issued the attached decision. The
Respondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief. The Gen-
eral Counsel filed cross-exceptions and a supporting
brief, the Respondent filed an answering brief, and the
General Counsel filed a reply.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,1

1 In his decision, the judge inadvertently stated that a collective-
bargaining agreement that the Respondent’s predecessor has with SEIU
Local 32BJ (SEIU) will expire on October 30, 2016. That agreement
expires on September 30, 2016. This error does not affect our disposi-
tion of this case.
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(5) and (1) by unilaterally changing employees’ terms and condi-
tions of employment. In doing so, we rely on the holding of Love’s
Barbeque Restaurant No. 62 that a successor employer forfeits its right
to set its own initial terms when it unlawfully refuses to hire the prede-
cessor’s employees. 245 NLRB 78, 82 (1979), enfd. in relevant part
sub nom. Kallmann v. NLRB, 640 F.2d 1094 (9th Cir. 1981). Our dis-
senting colleague contends that Love’s Barbeque was wrongly decided.
We disagree and adhere to the findings and rationale in Love’s Barbe-
que, which “has not been questioned by any Board or judicial decision”
in the 35 years since it was decided. Pressroom Cleaners, 361 NLRB
No. 57, slip op. at 2 fn. 5 (2014).
Member Miscimarra agrees that the Respondent was a legal succes-
sor obligated to recognize and bargain with SEIU, and that it unlawful-
ly failed to do so. He believes, however, that the Respondent still had a
right to unilaterally set different initial terms and conditions of em-
ployment. He recognizes that the Board in Love’s Barbeque, above,
held that a successor employer forfeits its right to set its own initial
terms when it engages in discrimination in its hiring process. However,
as explained in his partial dissent in CNN America, Inc., 361 NLRB No.
47, slip op. at 43–44 (2014), he disagrees with the holding in Love’s
Barbeque because, in his view, it inappropriately deviates from the
Supreme Court’s holdings in NLRB v. Burns Security Services, Inc.,
406 U.S. 272 (1972), and Fall River Dyeing & Finishing Corp. v.
NLRB, 482 U.S. 27 (1987), that a predecessor’s contractual obligations
do not bind a legal successor. If an employer engages in discriminatory
and conclusions,2 to amend the remedy,3 and to adopt his
recommended Order as modified and set forth in full
below.4

hiring to defeat legal successor status, the appropriate remedy is to
order the employer to hire the discriminatees and make them whole and
to require it to recognize and bargain with the union recognized by the
predecessor. See Pacific Custom Materials, Inc., 327 NLRB 75, 75–76
(1998) (Member Hurtgen, dissenting). Regarding these issues, he
believes that the Board is constrained by Burns and Fall River Dyeing,
in addition to Sec. 8(d) of the Act, from imposing substantive contract
terms on the successor. See also H. K. Porter Co. v. NLRB, 397 U.S.
99, 107–108 (1970). To the extent that the Board continues to apply
Love’s Barbeque, he would permit a respondent to limit its make-whole
liability by proving at the compliance stage that it would not have
agreed to the monetary provisions of its predecessor’s collective-
bargaining agreement and the date when and terms on which it would
have bargained either to an agreement or impasse. See Pressroom
Cleaners, above, 361 NLRB No. 57, slip op. at 6–12 (Members Misci-
marra and Johnson, dissenting).
2 We have amended the judge’s conclusions of law to conform to the
violations found.
3 We find merit in the General Counsel’s exception to the judge’s
failure to recommend that the notice be read aloud to employees by the
Respondent’s Regional Operations Manager Gary Perrin. Specifically,
we observe that the Respondent’s managers, including Perrin, met with
the predecessor’s employees at the outset of the application process,
informed them that the new work force would be represented by Team-
sters Local 25, and solicited them to join that union. In these circum-
stances, we find that a public reading of our remedial notice is appro-
priate “to dissipate as much as possible any lingering effects of the
Respondent’s unfair labor practices,” and it will allow the employees to
“fully perceive that the Respondent and its managers are bound by the
requirements of the Act.” Homer D. Bronson Co., 349 NLRB 512, 515
(2007), enfd. mem. 273 F. Appx. 32 (2d Cir. 2008). Therefore, we will
require the Respondent to convene a meeting or meetings for all unit
employees, at the two facilities at which the employees affected by
these unfair labor practices work, at which the remedial notice shall be
read aloud to the Respondent’s employees by Perrin in the presence of
a Board agent and an agent of SEIU if the Region or SEIU so desires,
or, at the Respondent’s option, by a Board agent in Perrin’s presence
and, if SEIU so desires, that of an agent of SEIU. Given that many of
the Respondent’s employees speak Spanish, we will require the Re-
spondent to provide a Spanish language interpreter, who shall translate
aloud for the assembled unit employees the language of the notice.
Member Miscimarra disagrees with his colleagues that a notice-
reading remedy is warranted in this case. The Board has recognized
that this extraordinary remedy may be warranted “where the violations
are so numerous and serious that the reading aloud of a notice is con-
sidered necessary to enable employees to exercise their Section 7 rights
in an atmosphere free of coercion, or where the violations in a case are
egregious.” Postal Service, 339 NLRB 1162, 1163 (2003). Here, the
Respondent’s unfair labor practices do not rise to what has traditionally
been regarded as an egregious level of misconduct. Accordingly, he
would not order notice reading.
In accordance with our recent decision in King Soopers, 364 NLRB
No. 93 (2016), we amend the remedy to provide that the Respondent
shall compensate affected employees for their search-for-work and
interim employment expenses regardless of whether those expenses
exceed interim earnings. Search-for-work and interim employment
expenses shall be calculated separately from taxable net backpay, with
interest at the rate prescribed in New Horizons, 283 NLRB 1173
(1987), compounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB 6 (2010). For the reasons stated in his separate
2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 7.
“7. The Respondent violated Section 8(a)(2) and (1) of
the Act by telling employees, at meetings held in Febru-
ary 2015, that they would be represented by Teamsters
Local 25; by soliciting employees to sign union authori-
zation cards and dues-checkoff forms for Teamsters Lo-
cal 25; and by allowing a representative of Teamsters
Local 25 to tell new employees at an orientation meeting
that they would have to become members of Teamsters
Local 25 as a condition of their employment.”
2. Add the following as Conclusion of Law 10.
“10. By the foregoing conduct, the Respondent has en-
gaged in unfair labor practices affecting commerce with-
in the meaning of Section 2(6) and (7) of the Act.”
ORDER
The National Labor Relations Board orders that the
Respondent, Emerald Green Building Services, LLC,
Norwood, Massachusetts, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to hire the former employees of
P.E.A.C.E. Plus Maintenance Corporation (Peace Plus)
because they were members of and supported Service
Employees International Union, Local 32BJ (SEIU).
(b) Refusing, as a successor to Peace Plus, to recognize
and bargain with SEIU as the exclusive collective-
bargaining representative of its employees at the Cross
Point property in Lowell, Massachusetts, and at the Na-
gog Park property in Acton, Massachusetts.
(c) Unilaterally changing the terms and conditions of
employment for employees at the Cross Point and Nagog
Park properties.
(d) Providing assistance and support to Teamsters Lo-
cal Union No. 25 (Teamsters) by telling employees that
they would be represented by Teamsters; by soliciting
employees to sign union authorization cards and dues-
checkoff forms for Teamsters; and by allowing a Team-
sters’ representative to tell new employees that they
would have to become members of Teamsters as a condi-
tion of their employment.

opinion in King Soopers, supra, slip op. at 9–16, Member Miscimarra
would adhere to the Board’s former approach, treating search-for-work
and interim employment expenses as an offset against interim earnings.
4 In accordance with our decision in AdvoServ of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall
modify the judge’s recommended Order to reflect this remedial change,
to include a notice-reading provision, to conform to the violations
found and the Board’s standard remedial language, and in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996),
and Excel Container, Inc., 325 NLRB 17 (1997). We shall substitute a
new notice to conform to the Order as modified.
(e) Assisting, recognizing, and bargaining with Team-
sters as the collective-bargaining representative of the
employees who are employed at the Cross Point and Na-
gog Park properties when that union did not represent an
uncoerced majority of the unit employees.
(f) Extending and giving effect to the terms of its July
1, 2014, to December 31, 2016 collective-bargaining
agreement with Teamsters, or any renewal, extension, or
modification thereof, to the employees who are em-
ployed at the Cross Point and Nagog Park properties.
(g) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain with SEIU as
the exclusive representative of the employees in the fol-
lowing appropriate bargaining units concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All employees, as further defined in Article 3 of the
2012-2016 collective-bargaining agreement between
SEIU Local 615 and Maintenance Contractors of New
England, employed by the Respondent at the Cross
Point property in Lowell, Massachusetts.
All employees, as further defined in Article 3 of the
2012-2016 collective-bargaining agreement between
SEIU Local 615 and Maintenance Contractors of New
England, employed by the Respondent at the Nagog
Park property in Acton, Massachusetts.
(b) Notify SEIU in writing that it recognizes SEIU as
the exclusive representative of its unit employees under
Section 9(a) of the Act and that it will bargain with the
SEIU concerning terms and conditions of employment
for employees in the units described above.
(c) On request of SEIU, rescind any departures from
terms and conditions of employment that existed imme-
diately prior to the Respondent’s takeover of predecessor
Peace Plus’s operations at the Cross Point and Nagog
Park properties, retroactively restoring preexisting terms
and conditions of employment, including wage rates and
welfare and pension contributions, until it negotiates in
good faith with SEIU to agreement or to impasse.
(d) Make the unit employees whole, in the manner set
forth in the remedy section of the judge’s decision, for
any losses caused by the Respondent’s failure to apply
the terms and conditions of employment that existed im-
mediately prior to its takeover of predecessor Peace
EMERALD GREEN BUILDING SERVICES, LLC 3
Plus’s operations at the Cross Point and Nagog Park
properties.
(e) Withdraw and withhold all recognition from Team-
sters as the exclusive collective-bargaining representative
of its unit employees at the Cross Point and Nagog Park
properties unless and until Teamsters has been certified
by the National Labor Relations Board as the exclusive
collective-bargaining representative of those employees.
(f) Reimburse the unit employees for all initiation fees,
dues, and other money paid by them or withheld from
their pay pursuant to the terms of the dues-checkoff and
union-security clauses in its collective-bargaining
agreement with Teamsters, with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily in accordance with Kentucky River Medi-
cal Center, 356 NLRB 6 (2010).
(g) Within 14 days from the date of this Order, offer
employment to the following former unit employees of
Peace Plus, who would have been employed by the Re-
spondent but for its unlawful discrimination against
them, in their former positions or, if such positions no
longer exist, in substantially equivalent positions, with-
out prejudice to their seniority or any other rights or priv-
ileges previously enjoyed, discharging if necessary any
employees hired in their place:
Cross Point
Gloria Guerra Robert Mieses
Orlando De Jesu Parra Cesar Cedano Presinal
Adalberto Mendez Quezada Monica Mendez
Francisco Velasquez Allende Arcelia Curiel
Ruth Marquez Dorca Marquez
Dolores Feliz Marianela Santana
Nagog Park
Daniel Berrio Naranjo Jorge Restrepo
Josean Isaac Rivera Evelyn Ramos
(h) Make the employees named in paragraph 2(g)
whole for any loss of earnings and other benefits they
may have suffered by reason of the Respondent’s unlaw-
ful refusal to hire them, in the manner set forth in the
remedy section of the judge’s decision as amended in
this decision.
(i) Compensate the employees named in paragraph
2(g) for the adverse tax consequences, if any, of receiv-
ing lump-sum backpay awards, and file with the Region-
al Director for Region 1, 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 years for each employee.
(j) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful refusal to hire
the employees named in paragraph 2(g) and, within 3
days thereafter, notify them in writing that this has been
done and that the refusal to hire them will not be used
against them in any way.
(k) 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 rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(l) Within 14 days after service by the Region, post at
the Cross Point property in Lowell, Massachusetts, and
the Nagog Park property in Acton, Massachusetts, copies
of the attached notice marked “Appendix.”5 Copies of
the notice, on forms provided by the Regional Director
for Region 1, in English and Spanish, after being signed
by the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 consec-
utive days in conspicuous places, including all places
where notices to employees are customarily posted. In
addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Respondent customarily communi-
cates with its employees by such means. Reasonable
steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since February 4, 2015.
(m) Within 14 days after service by the Region, hold a
meeting or meetings at the Cross Point property in Low-
ell, Massachusetts, and the Nagog Park property in Ac-
ton, Massachusetts, scheduled to ensure the widest pos-
sible attendance, at which the attached notice is to be
read to the employees by the Respondent’s Regional Op-
erations Manager Garry Perrin in the presence of a Board
agent and an agent of SEIU if the Region or SEIU so
desires, or, at the Respondent’s option, by a Board agent
in Perrin’s presence and, if SEIU so desires, an agent of

5 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.”
4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
SEIU, with translation available for Spanish-speaking
employees.
(n) Within 21 days after service by the Region, file
with the Regional Director for Region 1 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. August 26, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT refuse to hire you because you are mem-
bers of and supported Service Employees International
Union Local 32BJ (SEIU).
WE WILL NOT refuse, as a successor to P.E.A.C.E. Plus
Maintenance Corporation (Peace Plus), to recognize and
bargain with SEIU as your exclusive collective-
bargaining representative.
WE WILL NOT unilaterally change your initial terms
and conditions of employment without first giving notice
to and bargaining with SEIU about those changes.
WE WILL NOT provide assistance and support to Team-
sters Local Union No. 25 (Teamsters) by telling you that
you would be represented by Teamsters; by soliciting
you to sign union authorization cards and dues-checkoff
forms for Teamsters; or by allowing a Teamsters’ repre-
sentative to tell you that you would have to become
members of Teamsters as a condition of your employ-
ment.
WE WILL NOT assist, recognize, or bargain with Team-
sters as your collective-bargaining representative when
that union does not represent an uncoerced majority of
the unit employees.
WE WILL NOT extend or give effect to the terms of our
July 1, 2014, to December 31, 2016 collective-bargaining
agreement with Teamsters, or any renewal, extension, or
modification thereof, to our employees who are em-
ployed at the Cross Point and Nagog Park properties.
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 recognize and, on request, bargain with SEIU
as the exclusive representative of the employees in the
following appropriate bargaining units concerning terms
and conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment:
All employees, as further defined in Article 3 of the
2012-2016 collective-bargaining agreement between
SEIU Local 615 and Maintenance Contractors of New
England, employed by us at the Cross Point property in
Lowell, Massachusetts.
All employees, as further defined in Article 3 of the
2012-2016 collective-bargaining agreement between
SEIU Local 615 and Maintenance Contractors of New
England, employed by us at the Nagog Park property in
Acton, Massachusetts.
WE WILL notify SEIU in writing that we recognize it as
the exclusive representative of our unit employees under
Section 9(a) of the Act and that we will bargain with it
concerning the terms and conditions of employment for
employees in the units described above.
WE WILL, on request of SEIU, rescind any departures
from terms and conditions of employment that existed
immediately prior to our takeover of the operations of
predecessor Peace Plus, and retroactively restore preex-
isting terms and conditions of your employment, includ-
ing wage rates and welfare and pension contributions,
until we negotiate in good faith with SEIU to agreement
or to impasse.
EMERALD GREEN BUILDING SERVICES, LLC 5
WE WILL make you whole, with interest, for losses
caused by our failure to apply the terms and conditions of
employment that existed immediately prior to our takeo-
ver of predecessor Peace Plus’s operations at the Cross
Point and Nagog Park properties, plus reasonable search-
for-work and interim employment expenses.
WE WILL withdraw and withhold all recognition from
Teamsters as the exclusive collective-bargaining repre-
sentative of our unit employees at the Cross Point and
Nagog Park properties unless and until Teamsters has
been certified by the National Labor Relations Board as
the exclusive collective-bargaining representative of
those employees.
WE WILL reimburse you, with interest, for all initiation
fees, dues, and other money paid by you or withheld
from your pay pursuant to the terms of the dues-checkoff
and union security clauses in our collective-bargaining
agreement with Teamsters.
WE WILL, within 14 days from the date of the Board’s
Order, offer employment to the following former em-
ployees of Peace Plus, who would have been employed
by us but for our unlawful discrimination against them,
in their former positions or, if such positions no longer
exist, in substantially equivalent positions, without prej-
udice to their seniority or any other rights or privileges
previously enjoyed, discharging if necessary any em-
ployees hired in their place:
Cross Point
Gloria Guerra Robert Mieses
Orlando De Jesu Parra Cesar Cedano Presinal
Adalberto Mendez Quezada Monica Mendez
Francisco Velasquez Allende Arcelia Curiel
Ruth Marquez Dorca Marquez
Dolores Feliz Marianela Santana
Nagog Park
Daniel Berrio Naranjo Jorge Restrepo
Josean Isaac Rivera Evelyn Ramos
WE WILL make the above-named employees whole for
any loss of earnings and other benefits they may have
suffered by reason of our unlawful refusal to hire them,
less any net interim earnings, plus interest, plus reasona-
ble search-for-work and interim employment expenses.
WE WILL compensate the above-named employees for
the adverse tax consequences, if any, of receiving a
lump-sum backpay award, and WE WILL file with the Re-
gional Director for Region 1, within 21 days of the date
the amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar quarters for each employee.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful refusal to hire the above-named employees, and WE
WILL, within 3 days thereafter, notify them in writing that
we have done so and that we will not use our refusal to
hire them against them in any way.
EMERALD GREEN BUILDING SERVICES, LLC
The Board’s decision can be found at
www.nlrb.gov/case/01–CA–147341 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.
Colleen Fleming, Esq., and Laura Paul, Esq., for the General
Counsel.
James I. Grosso, Esq., for the Respondent.
Ingrid Nava, Esq., for Local 32BJ.
Renee J. Bushey, Esq., and Nicholas M. Chalupa, Esq., for
Teamsters Local No. 25.
DECISION
STATEMENT OF THE CASE
RAYMOND P. GREEN, Administrative Law Judge. I heard this
case on July 6, 7, and 8, 2015, in Boston, Massachusetts. The
charges in this proceeding were filed on March 2 and 3, 2015.
The complaint that was issued on May 29, alleged as follows:
1. That prior to February 21, 2015, the janitorial work per-
formed at a facility located in Cross Point, Lowell, Massachu-
setts, was performed by Peace Plus Maintenance, a company
that had a collective-bargaining agreement with Local 32BJ.
That contract ran from October 1, 2012, through October 30,
2016.
2. That on or about February 21, 2015, the Respondent as-
sumed the janitorial functions at the Cross Point facility and has
continued to perform such services in basically an unchanged
form.
3. That in February 2015, the Respondent refused to hire var-
ious employees of Peace Plus because they were members of or
represented by Local 32BJ.
4. That but for the discriminatory refusal to hire employees
represented by Local 32BJ, a majority of the work force at
Cross Point would have consisted of former employees of
Peace Plus and therefore the Respondent incurred an obligation
to recognize and bargain with Local 32BJ.
6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5. That since February 21, 2015, the Respondent, without af-
fording Local 32BJ an opportunity to bargain, established rates
of pay, benefits and other terms of employment that vary from
the terms set forth in the contract between Local 32BJ and
Peace.
6. That on or about February 4, 2015, the Respondent by its
agent, Lorelei Deloge, gave assistance to Teamsters Union No.
25 by supplying employees with Teamster application packag-
es.
7. That on or about February 21, 2015, the Respondent rec-
ognized Teamsters Union No. 25 notwithstanding that this un-
ion did not represent an uncoerced majority of the employees in
the Cross Point unit.
8. That on or about February 21, 2015, the Respondent en-
tered into a contract with Teamsters Union No. 25 covering the
Cross Point employees containing a union-security provision.
9. That prior to February 28, 2015, the janitorial work per-
formed at a facility located at, Nagog Park, Massachusetts, was
performed by Peace Plus Maintenance, which had a collective-
bargaining agreement with Local 32BJ. That contract ran from
October 1, 2012, through September 30, 2016.
10. That on or about February 28, 2015, the Respondent as-
sumed the janitorial functions at the Nagog Park facility and
continued to perform such services in basically an unchanged
form.
11. That in February 2015, the Respondent refused to hire
various employees of Peace Plus because they were members
of or represented by Local 32BJ.
12. That but for the discriminatory refusal to hire employees
represented by Local 32BJ, a majority of the work force at
Nagog Park would have consisted of the former employees of
Peace Plus and therefore, the Respondent incurred an obligation
to recognize and bargain with Local 32BJ.
13. That since February 28, 2015, the Respondent, without
affording Local 32BJ an opportunity to bargain, established
rates of pay, benefits and other terms of employment that vary
from the terms set forth in the contract between Local 32BJ and
Peace.
14. That in mid-February 2015, the Respondent by its agents,
Deloge and Gary Perrin, assisted the Teamsters by telling the
employees at Nagog Park that they were represented by the
Teamsters and by distributing to them, Teamster application
packets.
15. That on or about February 28, 2015, the Respondent rec-
ognized Teamsters Union No. 25 notwithstanding that this un-
ion did not represent an uncoerced majority of the employees in
the Nagog Park unit.
16. That on or about February 28, 2015, the Respondent en-
tered into a contract with Teamsters Union No. 25 covering the
employees at Nagog Park containing a union-security provi-
sion.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs, I
make the following
FINDINGS AND CONCLUSIONS
I. JURISDICTION
It is admitted and I find that the Respondent is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act. I also find that the Unions are labor organi-
zations within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Prior to February 2015, a company called Peace Plus per-
formed janitorial functions for various customers including one
that was located at Cross Point, in Lowell, Massachusetts, and
the other located at Nagog Park, Massachusetts. The employees
at each facility had, for a long time, been represented by the
Charging Party, Local 32BJ. The last collective-bargaining
agreement covering these employees ran for a term from Octo-
ber 1, 2012, through October 30, 2016. The contract covered
employees at both locations as part of a single bargaining unit.1
At Cross Point, Peace Plus employed about 19 to 20 employ-
ees. The facility at Nagog Park was somewhat smaller and
Peace Plus employed about 9 employees at that location.
Emerald Green is also engaged in the business of providing
janitorial services for commercial customers. Its primary area
of business includes Massachusetts and New Hampshire. It has
long recognized Teamsters Local 25 as the representative of its
employees and they are covered by a single company-wide
collective-bargaining agreement. This collective-bargaining
agreement is somewhat similar in terms of wages and benefits
as the contract between Peace Plus and Local 32BJ. There are
differences, but the economic cost per employee seems to be
roughly comparable.
There is no dispute regarding the fact that the Respondent
and Teamsters Local 25 applied their existing collective-
bargaining agreement to the employees working at both Cross
Point and Nagog park and agreed to do so even before any
employees were hired by Emerald Green for those locations.
The rationale for doing so is the claim that these two facilities
constituted accretions to the existing bargaining unit represent-
ed by Teamsters Local 25. The evidence in this case establish-
es that Emerald Green extended its existing labor agreement to
the employees at these two locations without any showing that
employees at these locations voluntarily chose to be represent-
ed by Teamster Local 25. Thus, unless the Respondent can
establish that the employees at these two locations have little or
no separate group identity and share an overwhelming commu-
nity of interest to the preexisting unit to which they are claimed
to be an accretion, then the Respondent will have violated Sec-
tion 8(a)(1), (2), and (3) of the Act.
Both collective-bargaining agreements contain union-
security and dues-checkoff authorization clauses.
The principal managerial people for Emerald Green involved
in this case are Paul McAleer, its president; Gary Perrin, its
regional operations manager; Lorelle Deloge, an area manager;

1 In fact, the bargaining unit in the Local 32BJ contract covered all
locations of Peace Plus within the States of Massachusetts, Rhode
Island, and New Hampshire.
EMERALD GREEN BUILDING SERVICES, LLC 7
Luis Mejia, another area manager; and John DoCarmo the op-
erations manager.
On or about January 30, 2015, CBRE Management after re-
ceiving bids, awarded a contract for cleaning services at the
Cross Point facility to Emerald Green.
At about the same time, a company called CRE Management
awarded a contract for cleaning services to Emerald Green at a
facility located at Nagog Park.
For purposes of this decision, the facts although complemen-
tary for each location, will be treated separately in order to
avoid confusion.
The Cross Point Location
Prior to taking over the cleaning services at this location, the
predecessor company, (Peace Plus), at the time that it ceased
performing services, employed 17 full time employees and two
other employees who worked on an “on call” basis. The 17 full
time employees were covered by the collective-bargaining
agreement with the Charging Party, Local 32BJ.2 The record
also shows that prior to losing the contract, Peace Plus, em-
ployed two additional employees who worked on a part-time
basis. Of these two, Dolores Feliz, who had been laid off by
Peace Plus in August 2014, was brought back as an “on call”
employee, who by the time that Peace Plus lost the contract,
was working sufficient hours per week to be part of the bar-
gaining unit. The other employee, Marianela Santana, worked
fewer hours than Feliz and may not have worked the 15 hour
per week minimum that would place her in the category of a
contractually covered employee.
Between the time that Emerald Green was awarded the con-
tract and the time that it began work at Cross Point, it solicited
job applications from the Peace Plus employees who worked at
this location. In this regard, these employees were given a
package of documents that included applications, I-9 forms, W-
4 forms, direct-deposit forms and more significantly for our
purposes, Teamster Local 25 membership applications and
dues-checkoff forms. In relation to its hiring plans, the evi-
dence shows that Emerald Green intended to hire, on a perma-
nent basis, a complement of about 18 employees for the Cross
Point facility.
The evidence shows that on February 3, 2015, representa-
tives of Emerald Green went to Cross Point for the purpose of
meeting with the employees, but the employees did not show
up for the meeting. Nevertheless, they did meet with a few
employees and handed out the aforementioned job application
packages.
On February 4, 2015, representatives of Emerald Green met

2 The General Counsel noted that although an employee named
Alejandra Vivas Rojas appeared on the Cross Point payroll for a short
time, the evidence strongly suggests that she had worked at both Cross
Point and Nagog Park at different times and that in the final week be-
fore Peace Plus lost the contract at Cross Point, she was not employed
at that location. In any event, she did not apply for a job with the Re-
spondent and therefore cannot be construed as a discriminate. The
General Counsel also noted that Hector Bentacur Arango, another
person who was employed by Peace Plus at Cross Point, was consid-
ered to be a supervisor and was not covered by the collective-
bargaining agreement. After Peace Plus lost the contract, he was hired
by Emerald Green for that location.
with about 15 of the employees. Gary Perrin, Emerald Green’s
regional operations manager, explained that the Company had a
contract with Teamsters Local 25. Thereafter, Deloge told the
employees that Emerald Green was taking over the cleaning
work from Peace Plus and she handed out job application pack-
ages containing the materials described above. Also at the
meeting, Mejia, speaking in Spanish, told the employees to fill
out the applications and return them the following day. He also
told the employees that Emerald Green had its own union,
which was different from Local 32BJ.
On February 6, the employees of Peace Plus gave the com-
pleted applications to Silvia Clarke, their former shop steward,
who then handed them over to Deloge. It is noted that among
the people who submitted job applications was Maria
Gonsalves, an individual who was, and still is, employed by
Local 32BJ as a union representative. She was not an employee
of Peace Plus.
Another meeting at Cross Point was held on February 13,
where among other things, employee documents such as social
security cards, licenses, or other photo IDs were copied.
Documents subpoenaed by and offered into evidence by the
General Counsel establish that job application packages were
submitted to Emerald Green by the following 17 people who
had been employed by Peace Plus in bargaining unit jobs:
Gloria Guerra Robert Mieses
Orlando De Jesu Parra Cesar Cedano Presinal
Adalberto Mendez Quezada Monica Mendez
Francisco Tapia Lagrange Silvia Clarke
Arcelia Curiel Ruth Marquez
Dorca Marquez Salvador Velasquez
Martina Jimenez Carmen Hernandez-Vasquez
Laura Vivas Rojas Dolores Feliz3
Marianela Santana4
In addition, the evidence supports the conclusion that Fran-
cisco Velasquez Allende submitted a job application through
Silvia Clarke. Clarke testified that she filled out his application
inasmuch as this employee was not literate and only spoke
Spanish.
Thus, of the 19 full-time and part-time nonsupervisory per-
sons employed by Peace Plus at the Cross Point facility imme-
diately prior to the work being taken over by Emerald Green,
18 applied for jobs at the Respondent.
In addition to receiving job applications and supporting doc-
uments from the Peace Plus employees, the Respondent also
received job applications from a number of other persons, many
of whom, according to their job applications, had no prior expe-
rience in this industry.
Between February 13 and February 21, the job applications
were reviewed by Perrin. In this regard, Perrin testified that he

3 As noted above, Dolores Feliz worked as a part-time employee
while at Peace Plus and was covered by the collective-bargaining
agreement.
4 As noted above, Marianela Santana worked in a job classification
that was covered by the Local 32BJ contract but may not have worked
sufficient hours per week to have been part of the unit. She neverthe-
less, worked under the same terms and conditions of employment and
performed the same job duties as the other employees.
8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
consulted with Maria Elena Toro who had previously worked
for Peace Plus at Nagog Park and essentially asked her opinion
about the employees at Cross Point. His testimony was that
although she did not tell him that any of these employees were
unqualified or no good, she indicated her disapproval by a
shrug of her shoulders. This is, to my mind, a slim thread upon
which to base a defense and I note that neither he nor she testi-
fied that she expressed, in any verbal way, her disapproval of
any of the employees who were then working at Cross Point.
On February 20, 2015, Perrin contacted various individuals
and asked them to attend an orientation meeting on February
21.
On February 21, Emerald Green began working at the site.
But before doing so, former employees of Peace Plus showed
up that morning. Nevertheless, only six were allowed to attend
the orientation meeting. DoCarmo told the remainder that they
were not on the list but that Emerald Green had jobs at other
locations and that they might be called later.
At the orientation meeting held on February 21, Robert Au-
gier, a representative of Teamsters Local 25, was introduced to
the newly hired employees who were told that Local 25 had a
contract with the Respondent. Augier then handed out union
membership and dues-checkoff cards to the employees who
were informed that they had to fill out these documents.
As noted above, the Respondent hired Maria Gonsalves not
knowing that she was a Local 32BJ union representative. She
testified that on February 25, 2015, she asked John DoCarmo
why the Respondent did not hire all of the employees who had
worked at Cross Point. He responded that Emerald Green
could not have a majority of the previous workers because it
had its own union. DoCarmo also stated that not all of the pre-
vious employees had all of their documents and she countered
that they did. Gonsalves testified that DoCarmo stated that he
could not give them jobs at this location at this time, but that he
might be able to find jobs for them at other locations. DoCar-
mo denied that he had such a conversation with any employee.
Nevertheless, as the testimony of Gonsalves is consistent with
the testimony of two other individuals described below in rela-
tion to the Nagog Park location, I am going to credit her ver-
sion.
The evidence shows that the normal complement of employ-
ees doing work on a permanent basis at the Cross Point location
has numbered about 17 or 18. However, during the first week
of its operations, the Respondent employed a group of five
people who were classified as “flood” employees; the latter
being brought in from other locations in order to get the facility
in sparkling good shape. The flood group employees consisted
of Ramon Alcantaro, Bai Bangura, Franklin Genao, Matthew
Perris, and Layla Saad. This group of employees had been
brought into this location only on a temporary basis; were on a
separate payroll; and were not intended to be assigned to this
location on a regular basis. Also, during the second week of
operations when there were 23 people on the payroll, this num-
ber was above normal because some of the employees initially
hired on February 21, left and replacements were hired during
the same week.
Among the initial group hired by Emerald Green for Cross
Point, were the following Peace Plus employees who had been
employed at Cross Point:5
Silvia Clarke Francisco Tapia Lagrange
Carmen Hernandez Salvador Velasquez
Martina Jimenez Laura Vivas Rojas6
During the pay period from March 1 to 7, the payroll records
show that the following former Peace Plus employees were
working at Cross Point.
Silvia Clarke Martina Jimenez
Arcella Curiel Francisco Tapia Lagrange
Gloria Guerra Salvador Velasquez
Carmen Hernandez
The payroll records show that for the next pay periods
through the end of March 2015, Dolores Feliz was hired and
there were eight former Peace Plus employees working at Cross
Point.
Thus, although the Respondent ultimately hired about 10
former Peace Plus employees for the Cross Point location, it
nevertheless kept the number of former Peace Plus employees
just below 50 percent at any given time.
The Nagog Park Location
Before Emerald Green took over the janitorial work at this
location, the work had been done by Peace Plus employees in a
unit of about nine people.7 These were Evelyn Ramos, Nelson
Mercado, Jorge Restropo Vanegas, Ledy Ramirez, Margarita
Rivera, Josean Isaac Rivera, Paula Morcelo, Maria Elena Toro,
and Daniel Berrio Naranjo. All of these individuals were
members of Local 32BJ and covered by the collective-
bargaining agreement between that union and Peace Plus.
The Respondent asserts that for this location it intended to
hire between 10 and 11 employees. In early February 2015, its
representatives, Perrin and Deloge, visited the site and spoke to
Maria Toro who was the day porter and night lead-person.
Thereafter, on or about February 17, Respondent’s repre-
sentatives met with the employees and distributed employment
applications along with the related materials including Team-
ster Local 25 membership and dues authorization forms.
On or about February 19, Perrin went back to the site and
collected the applications with the accompanying I-9 forms and
copies of identification documents. The evidence shows that

5 The Respondent hired Maria Gonsalves without knowing that she
was a representative of Local 32BJ. She was not an employee of Peace
Plus.
6 Her twin sister Alejandra Vivas Rojas had been employed previ-
ously by Peace Plus, but not at the Cross Point facility at the time that
the Respondent took over operations.
7 The General Counsel points out that Esvin Gonzales, who was em-
ployed by Peace Plus at this location, resigned at the end of January
2015 and was therefore not an employee in that unit immediately be-
fore the operation was taken over by the Respondent. She also notes
that another employee of Peace Plus, Alejandra Vivas Rojas, may or
may not have been an employee of Peace Plus at the time of the transi-
tion. However, this person did not apply for a job at the Respondent at
either the Nagog Park or the Cross Point location and she is not alleged
to have been a discriminatee.
EMERALD GREEN BUILDING SERVICES, LLC 9
the nine Peace Plus employees submitted employment applica-
tions to the Respondent.8
The Respondent set up an orientation meeting for February
28 at Nagog Park, and except for five of the former Peace Plus,
the others were told to leave. The five that were hired were
Nelson Mercado, Paula Morcelo, Maria Elena Toro, Margarita
Rivera, and Ledy Ramirez.
The Respondent asserted that Perrin consulted with Toro re-
garding the relative strengths and weaknesses of the Peace Plus
employees and made his decision based on her advice. I don’t
believe this to be the case and it is not, in my opinion, support-
ed by the testimony of either Perrin or Toro.
In addition to hiring these five former Peace Plus employees,
the Respondent hired additional individuals as permanent em-
ployees for the Nagog Park location. As in the case of Cross
Point, the Company brought in for the initial phase, two indi-
viduals as “flood” employees, Trinayan Bora and Erin Deloge,
who did not remain at this location. There also was one addi-
tional person hired, this being Donna Madamba, who was em-
ployed as a “temporary” employee with part-time hours.
The evidence shows that after commencing work at this loca-
tion and up through the last week of March 2015, the comple-
ment of workers started out at 13 and then, because of turnover,
reduced itself to 11 and finally to 10 permanent employees.
During this entire period, the Respondent employed five former
Peace Plus workers, thereby keeping their number at or just
below 50 percent of the total complement.
On or about February 27, 2015, Local 32BJ began leafleting
at Nagog Park. Upon discovering this activity, Thomas
McComiskey and Robert Brown, two managers for CRE con-
tacted Perrin to find out why Local 32BJ was handing out leaf-
lets to the public. Thereafter, a meeting was arranged and the
credible testimony of both McComiskey and Brown was that
Perrin said that the Company was only allowed to hire 49 per-
cent of the former Peace Plus employees so that they could not
be accused of raiding Local 32BJ.
McComiskey and Brown also testified that at another meet-
ing held on March 3, Perrin repeated that Emerald Green, hav-
ing a different union than Peace Plus, could hire only 49 per-
cent of the former Peace Plus employees otherwise it would be
considered a raid. He said that after 30 days, the former Peace
Plus employees who hadn’t been hired, could reapply for jobs.9
Although the description of these meetings by McComiskey
and Brown was denied by the Respondent, I am going to credit
their testimony. These individuals, as far as I can see, have no
interest in the outcome of this case and as persons representing
a third party, having no relationship to Local 32BJ, had no rea-
son to make up such a story.

8 Although the Respondent did not seem to have an application from
Daniel Berrio Naranjo, this individual credibly testified that he did, in
fact, fill out and submit an employment application.
9 This statement, at first blush, seems somewhat puzzling. But what
I think it means that Perrin believed that if Emerald Green hired more
than 51 percent of the employees, it would give Local 32BJ a legitimate
claim to represent the employees and therefore an extension of the
Teamster Local 25 contract to these employees could be construed as a
raid by the Teamsters on Local 32BJ.
As in the case of Cross Park, there is no dispute about the
fact that the Respondent applied its collective-bargaining
agreement with Teamster Local 25 and required employees to
become members of that Union as a condition of continued
employment.
III. ANALYSIS
I understand why a company like Emerald Green would seek
to expand its business by bidding for cleaning contracts at plac-
es where the existing contractors either have or don’t have rela-
tionships with other labor organizations.
I also understand why the Respondent, having a company-
wide collective-bargaining agreement with Teamsters Local 25,
would want to have dealings with only one, instead of two un-
ions. The overall expenditure of time, effort and money in
dealing with one union would be doubled if an employer was
required to deal with two unions for different sets of employ-
ees. That this is a rational consideration does not mean that any
and all efforts to achieve that goal would be legal.
Basically, the Respondent contends that it had a legal right to
accrete the people that it hired to perform the cleaning work at
Cross Point and Nagog Park to its existing company-wide con-
tract with Teamsters Local 25. It contends that it had the right
to do this even notwithstanding the fact that those employees
had been historically represented by Local 32BJ. The Respond-
ent contends that it also had the right to hire those employees it
chose without an obligation to hire the employees who were
employed by the predecessor employer. It asserts that having
hired less than 50 percent of the predecessor’s employees at
each of these locations, it cannot be construed as a Burns suc-
cessor and therefore it is not bound to bargain with Local 32BJ.
Finally, the Respondent asserts that even if it is deemed to be a
successor, it had the right to establish its own initial terms and
conditions of employment.
(a) The 8(a)(2) Allegations
The Respondent has a collective-bargaining agreement with
Teamsters Local 25 which covers its cleaning employees on a
company-wide basis. That contract’s recognition clause could
be read to require Emerald Green to apply the contract to any
newly acquired facilities and this is what happened in the pre-
sent case. The fact that the Company may have acted in ac-
cordance with its contract with Teamsters Local 25 does not,
however, make its action legal, unless the employees in the
newly acquired facilities are deemed to constitute an accretion
to the existing bargaining unit.
In cases involving accretion issues, the Board balances two
competing interests. One is the interest of employees to have
their own choice in selecting whether or not they wish to be
represented by a labor organization. The other is the interest in
stability wherein not every minor change in the bargaining unit
will require a new election. But the interest in industrial stabil-
ity is limited. Thus, in Gitano Group, 308 NLRB 1172, 1174
(1992), the Board stated:
[W]e emphasize that the Board has followed a restrictive pol-
icy in finding accretion because it is reluctant to deprive em-
ployees of their basic right to select their own bargaining rep-
resentative. Consequently, we will find a valid accretion “only
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
when the additional employees have little or no separate
group identity… and when the additional employees share an
overwhelming community of interest with the preexisting unit
to which they are accreted.10
Given the facts in this case, I do not believe that the Re-
spondent has proven that the employees at Cross Point and
Nagog Park should be construed as being accretions to the larg-
er unit contained in the contract with Teamsters Local 25.
For one thing, the Board has a presumption that a single fa-
cility unit is appropriate. North Hills Office Services, 342
NLRB 437, 444 (2004); Sierra Realty Corp., 317 NLRB 832,
836 (1995). Thus, even though the employees at the two loca-
tions were part of a larger unit when employed by Peace Plus,
that larger unit was fractured when Peace Plus lost its contracts
with the property owners. Accordingly, when that occurred,
the Peace Plus multilocation unit, insofar as the Cross Point and
Nagog Park locations, reverted to single facility units, which
are presumptively appropriate.
I also note that the employees at the two locations, consisted
respectively of about 17 and 9 employees. This is not an insig-
nificant number of employees and does not, in my opinion,
amount to a mere minor change in the existing bargaining unit.
It is a relatively large number of individuals whose right to
choose their own representative would be disregarded if an
accretion were to be found.
The record shows that although there is some degree of in-
terchange of employees at the various Emerald Green locations,
I don’t think that the degree of cross facility interchange is
more than minimal. Moreover, the testimony of DoCarmo was
that all transfers from one location to another are voluntary and
are not mandated by the Employer. I note that the locations are
physically separate and that the local day-to-day supervision is
separate.
In short, I conclude that the two locations involved in this
case cannot be construed as accretions to the exiting collective-
bargaining agreement between Emerald Green and Teamsters
Local 25. Dean Transportation Inc., 350 NLRB 48, 59 (2007).
Accordingly, because the Respondent extended its contract
with Teamsters Local 25 to these employees on the premise
that the employees constituted an accretion (and not on the
basis of majority support within the local units), I conclude that
the Respondent violated Section 8(a)(1) and (2) of the Act.
Int’l Ladies’ Garment Workers Union v. NLRB, 366 U.S. 731,
738 (1961); Dean Transportation Inc., supra.
Additionally, I conclude that the Respondent, violated Sec-
tion 8(a)(1) and (2) when its representatives (a) told employees
that they would be represented by Teamsters Local 25 at meet-
ings held in February 2015; (b) solicited employees to sign
union authorization cards and dues-checkoff forms for Team-
sters Local 25; and (c) by allowing a representative of Team-
sters Local 25 to tell new employees at an orientation meeting
that they would have to become members as a condition of their
employment. Planned Building Services, 347 NLRB 670, 676
(2006).

10 See also Towne Ford Sales, 270 NLRB 311 (1984), and E.I. Du
Pont De Nemours Inc., 341 NLRB 607, 608 (2004).
Because the collective-bargaining agreement with Teamsters
Local 25 contains a union security clause that requires member-
ship as a condition of employment, I also conclude that the
Respondent has violated Section 8(a)(3) of the Act. Dean
Transportation Inc., supra at 60.
(b) The Refusal-to-Hire Allegations
The next question is whether the Respondent discriminated
against the employees of Peace Plus when it considered them
for hire and when it chose to hire some but not all of those who
applied for jobs.
The bottom line here is that I credit the testimony of
McComiskey and Brown who essentially testified that they
were told by Perrin on two occasions that the Respondent could
only hire 49 percernt of the former Peace Plus employees be-
cause Emerald Green had its own union and if they hired more
than 49 percent this would be a raid. In my opinion, this meant
that Perrin believed that if the Company hired more than 51
percent of the predecessor’s employees, it would create a legal
claim by Local 32BJ to represent the employees and any claim
by Teamsters Local 25 would be considered a raid on the for-
mer union.
I also credit the testimony of Gonsalves who testified that
John DoCarmo told her that that the Company could not hire a
majority of the former employees at Cross Point because it had
its own union.
McComiskey and Brown were representatives of a third par-
ty that had no interest in the outcome of this case and had no
reason to favor Local 32BJ over the Respondent or Teamster
Local 25. I therefore construe their testimony as being more
reliable that the testimony of the Respondent’s witnesses.
Moreover, the testimony of McComiskey, Brown, and
Gonsalves makes sense. The single most important factor in
determining whether a company has an obligation to bargain
with a union that represented the employees of a predecessor, is
whether the workforce of the new employer, when it reaches a
representative complement, is composed of at least 51 percent
of the predecessor’s employees. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27 (1987). And since I have already
concluded that the Respondent and Teamsters Local 25 extend-
ed their collective-bargaining agreement to these employees, it
seems obvious to me that the Respondent intended to wind up
with only one union representing its employees and to avoid, if
possible, an obligation of having to deal with two unions.
In the brief, the General Counsel posited a number of addi-
tional factors that would tend to show that the Respondent’s
refusal to hire the former Peace Plus employees was motivated
by a desire to avoid becoming a Burns successor.11 Those fac-
tors are, in my opinion, valid. Nevertheless, I am going to rely
principally on the testimony described above which, in my
view, establishes by direct evidence, a discriminatory motive.
In view of the above, it is concluded that the Respondent at
Cross Point, refused to initially hire 12 of the former Peace Plus
employees for discriminatory reasons. It is also concluded that

11 Referring to NLRB v. Burns Int’l Sec. Services, Inc., 406 U.S 272
(1972).
EMERALD GREEN BUILDING SERVICES, LLC 11
at Nagog Park, the Respondent initially refused to hire four of
the former Peace Plus employees for discriminatory reasons.
(c) The Successorship Allegations
The Supreme Court in Fall River Dyeing & Finishing Corp.
v. NLRB, supra, concluded that whether a company that ac-
quires or takes over the operations of a predecessor, is a “suc-
cessor” having an obligation to recognize and bargain with an
incumbent union, depends upon whether there is a “substantial
continuity” of operations and whether a majority of the new
work force, in an appropriate unit, consists of the predecessor’s
employees when the new employer has reached a “substantial
and representative complement.”
In this case, there is no question that Emerald Green is en-
gaged in essentially the same industry as Peace Plus. It pro-
vides comparable services, using comparable employees, doing
comparable jobs. There is no doubt that when Emerald Green
took over the cleaning of the two facilities, that there was a
“substantial continuity” of operations. In School Bus Services,
Inc., 312 NLRB 1 (1993), the Board held regarding continuity,
that the questions are (1) whether the business of both employ-
ers was essentially the same; (2) whether the employees of the
new company are doing the same jobs in the same working
conditions, under the same supervisors; and (3) whether the
new entity has the same production process, produces the same
products and basically has the same customers. See also Sierra
Realty Corp. 317 NLRB 832, 836 (1995); Systems Manage-
ment, 292 NLRB 1075 (1989), enfd. in part 901 F.2d 279 (3d
Cir. 1990); Steward Granite Enterprises, 255 NLRB 569, 573
(1991); and Spruce-Up Corp., 209 NLRB 194 (1974).
I conclude that the cleaning employees working at each loca-
tion would constitute an appropriate unit.12 The problem is that
less than 51 percent of the Respondent’s employees at either
location consisted of the former Peace Plus employees who
were working at these locations immediately before Emerald
Green took over.
Nevertheless, having determined that the Respondent refused
to hire some of the former Peace Plus employees in order to
keep their number under a majority, it is concluded that absent
such discrimination, the complements at each location would
have been composed of more than 51 percent of the predeces-
sor’s employees. As such, I find that but for the illegal refusals
to hire, the Respondent would have been a successor employer
having an obligation to bargain with Local 32BJ. CNN Ameri-
ca, Inc., 361 NLRB No. 47, slip op. at 18 (2014); Planned
Building Services, Inc., 347 NLRB 670, 673–674 (2006); U.S.
Marine Corp. 293 NLRB 669 (1989).
Moreover, having concluded that the Respondent attempted
to avoid bargaining with Local 32BJ by discriminatorily refus-
ing to hire former employees of Peace Plus, I conclude that the
Respondent violated Section 8(a)(1) and (5) of the Act by uni-
laterally changing the terms and conditions of employment as
they existed when these workers were employed by Peace Plus.
CNN America, Inc., supra; Pressroom Cleaners, 361 NLRB
Nos. 57 and 133. For example, in U.S. Marine Corp. 293

12 This does not mean that each location could constitute the only
appropriate unit.
NLRB 669 (1989), the Board ordered the Respondent to re-
scind all detrimental unilateral changes that occurred upon the
takeover. It stated:
We have found that the Respondents unlawfully discriminat-
ed against 34 of the predecessor’s former employees by refus-
ing to hire them. Accordingly, we conclude that absent their
unlawful purpose, the Respondents would have retained sub-
stantially all the predecessor’s employees, and therefore the
Respondents were not entitled to set initial terms of employ-
ment without first consulting with the Union. (citations omit-
ted).
CONCLUSIONS OF LAW
1. The Respondent, Emerald Green Building Services LLC is
an employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Service Employees International Union Local 32BJ and
International Brotherhood of Teamsters Local Union No. 25 are
labor organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent is a successor having an obligation to
recognize and bargain with Local 32BJ for the cleaning em-
ployees located at Cross Point in Lowell Massachusetts and at
Nagog Park Massachusetts.
4. That the Respondent violated Section 8(a)(1) and (5) by
refusing to recognize and bargain with Local 32BJ for the
cleaning employees at the foregoing locations.
5. The Respondent, by unilaterally changing wages, hours,
and other terms and conditions of employment of the employ-
ees in the above described units, without first giving notice to
and bargaining with Local 32BJ, violated Section 8(a)(1) and
(5) of the Act.
6. The Respondent by refusing to hire employees who had
been employed by its predecessor, Peace Plus, in order to avoid
an obligation to bargain with Local 32BJ, violated Section
8(a)(1) and (3) of the Act.13
7. The Respondent, by assisting Teamsters Local 25 in solic-
iting membership applications from newly hired employees at
the foregoing locations, violated Section 8(a)(1) and (2) of the
Act.
8. The Respondent by recognizing and entering into a con-
tract with Teamsters Local 25, without that union representing
an uncoerced majority of the employees at the respective loca-
tions, violated Section 8(a)(1) and (2) of the Act.
9. The Respondent, by entering into and maintaining a col-
lective-bargaining agreement with Teamsters Local 25 that
contains provisions requiring membership in that union as a
condition of employment, violated Section 8(a)(1) and (3) of
the Act.

13 At Cross Point, I conclude that the Company illegally refused to
hire the following employees. Gloria Guerra; Robert Mieses; Orlando
De Jesu Parra; Cesar Cedano Presinal; Adalberto Mendez Quezada;
Monica Mendez; Franciso Velasquez Allende; Arcelia Curiel, Ruth
Marquez; Dorca Marquez, Dolores Feliz; and Marianela Santana.
At Nagog Park, I conclude that the Company illegally refused to hire
the following employees: Daniel Berrio Naranjo; Jorge Restrepo; Jo-
sean Isaac Rivera; and Evelyn Ramos.
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having concluded that the Respondent refused to hire certain
employees who formerly were employed by Peace Plus at
Cross Point and Nagog Park, it must, to the extent that it has
not already done so,14 offer them employment to their positions
of employment at the respective locations where they had pre-
viously worked, or if those jobs are no longer available, to sub-
stantially equivalent positions of employment. Additionally, it
must make them whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against them.
Backpay for this set of employees shall be computed in accord-
ance with F.W. Woolworth Co., 90 NLRB 289 (1950), with
interest at the rate prescribed in New Horizons, 283, 283
NLFRB 1173 (1987), compounded daily as prescribed in Ken-
tucky River Medical Center, 356 NLRB 6 (2010).
With respect to those employees that Respondent refused to
hire, the Respondent shall file a report with the Social Security
Administration allocating backpay to the appropriate calendar
quarters. The Respondent shall also compensate these employ-
ees for the adverse tax consequences, if any, of receiving one or
more lump-sum backpay awards covering periods longer than
one year. Don Chavas, LLC, d/b/a Tortillas Don Chavas, 361
NLRB No. 10 (2014).
I have also concluded that the Respondent violated the Act
by giving illegal assistance to Teamsters Local 25 and by enter-
ing into a collective-bargaining agreement with that union in
the absence of majority support, for the cleaning employees at
the Cross Point and Nagog Park locations. I therefore recom-
mend that the Board issue an Order requiring the Respondent to
cease giving effect to that agreement and that the Respondent
cease recognizing and bargaining with that union. Also, as that
collective-bargaining agreement contains a provision requiring
employees to become and remain members of Teamsters Local
25, and contains a dues-checkoff provision, it is recommended
that the Respondent reimburse with interest, any employees at
either location where it has deducted dues and/or initiation fees
from their wages.
Having concluded that the Respondent has violated the Act
by refusing to recognize and bargain with Local 32BJ, it must
offer to bargain with that Union upon request and if an agree-
ment is reached reduce such agreement to writing and execute
it. Further, to the extent that the Respondent has adversely
affected the wages, hours, and/or terms and conditions of em-
ployment by unilaterally changing such terms at the Cross Point
and Nagog Park locations, it must reinstate such terms until
such time as a new agreement is reached with Local 32BJ, or a
valid impasse in bargaining is reached, or in circumstances
where Local 32BJ is no longer the 9(a) representative.
To the extent that the Respondent’s unilateral actions have
adversely affected employees at Cross Point or Nagog Park, the

14 There is evidence that some employees of Peace Plus, although
not initially hired by the Respondent, were offered jobs at their respec-
tive locations after March 2015.
Respondent must make them whole, with interest, for the dif-
ference between their current wages and benefits and the wages
and benefits in existence prior to the unilateral changes. As to
this aspect of the Remedy dealing with unilateral changes, the
make-whole remedy shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d
502 (6th Cir. 1971), with interest as prescribed in New Hori-
zons, 283 NLRB 1173 (1987), compounded daily as prescribed
in Kentucky River Medical Center, 356 NLRB 6 (2010). As in
the case of the employees who were not hired, the Respondent
shall file a report with the Social Security Administration allo-
cating backpay to the appropriate calendar quarters. The Re-
spondent shall also compensate these employees for the adverse
tax consequences, if any, of receiving one or more lump-sum
backpay awards covering periods longer than one year. Don
Chavas, LLC d/b/aTortillas Don Chavas, 361 NLRB No. 10
(2014).
In addition to the above, the General Counsel seeks a remedy
that would require the Respondent to reimburse those employ-
ees who were not hired, for any expenses incurred while seek-
ing interim employment. Although I can see the appropriate-
ness of such a remedy, this is not the current law, which treats
such expenses as an offset to a discriminatee’s interim earning.
As the General Counsel is asking that the Board change its
current view of the law, I leave it to the Board to make any
changes it sees fit.
Finally, as many of these employees speak Spanish as their
first language, the Notice should be in English and Spanish.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended15
ORDER
The Respondent, Emerald Green Building Services, LLC, its
officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discouraging activity and support for Service Employees
International Union, Local 32BJ by refusing to hire, or in any
other manner discriminating against employees with respect to
their hours, wages, or other terms and conditions of employ-
ment in order to avoid having to recognize and bargain with
Local 32BJ of because employees join or support Local 32BJ
or any other labor organization.
(b) Refusing to recognize and bargain with Local 32BJ as the
exclusive collective-bargaining representative of its cleaning
employees at Cross Point, in Lowell, Massachusetts, and Nagog
Park, Massachusetts.
(c) Unilaterally changing the wages, hours, and other terms
and conditions of employment of the employees in the above
described units without first giving notice to and bargaining
with Local 32BJ.
(d) Providing assistance to and extending its collective-
bargaining agreement with International Brotherhood of Team-
sters, Local Union No. 25 to the employees in the above de-

15 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
EMERALD GREEN BUILDING SERVICES, LLC 13
scribed units and maintaining and giving effect to this agree-
ment, including the union-security and dues-checkoff provi-
sions of the contract.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain collectively with Lo-
cal 32BJ as the exclusive representative of its cleaning employ-
ees employed at the Cross Point and Nagog Park facilities with
respect to wages, hours, and other terms and conditions of em-
ployment, and if an agreement is reached, embody such agree-
ment in a signed document.
(b) Make whole, in the manner set forth in the remedy sec-
tion of this decision, the unit employees for losses caused by
Emerald Green’s unilateral changes in the wages and terms and
conditions of employment that existed prior to its commencing
operations at the Cross Point and Nagog facilities until such
time as the parties have reached an agreement, or until a valid
impasse in bargaining has occurred, or until such time that Lo-
cal 32BJ no longer is the legal 9(a) representative for these
employees.
(c) Within 14 days from the date of this Order, to the extent
that it has not already done so, offer instatement to their former
jobs, Gloria Guerra; Robert Mieses; Orlando De Jesu Parra;
Cesar Cedano Presinal; Adalberto Mendez Quezada; Monica
Mendez; Franciso Velasquez Allende; Arcelia Curiel, Ruth
Marquez; Dorca Marquez, Dolores Feliz; Marianela Santana;
Daniel Berrio Naranjo; Jorge Restrepo; Josean Isaac Rivera;
and Evelyn Ramos, or if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed and make
them whole, with interest, for any loss of earnings and other
benefits suffered as a result of the discrimination against them
in the manner set forth in the Remedy section of this decision.
(d) Within 14 days from the date of this Order, reimburse
any employees at Cross Point or Nagog Park from whose wag-
es, dues or initiation fees for Teamsters Local 25 have been
deducted.
(e) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Within 14 days after service by the Region, post at its fa-
cilities at Cross Point and Nagog Park, copies of the attached
notice marked “Appendix.”16 Copies of the notice, on forms
provided by the Regional Director for Region 1, after being

16 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.”
signed by the Respondent’s authorized representative, shall be
posted by the Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these pro-
ceedings, the Respondent has gone out of business or closed the
facility involved in these proceedings, or sold the business or
the facilities involved herein, the Respondent shall duplicate
and mail, at its own expense, a copy of the notice to all current
employees and former employees employed by the Respond-
ents at any time since February 15, 2015.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has taken
to comply.
Dated, Washington, D.C. September 10, 2015
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT discourage activity and support for Service
Employees International Union, Local 32BJ by refusing to hire
them, or in any other manner discriminating against employees
with respect to their hours, wages, or other terms and condi-
tions of employment in order to avoid having to recognize and
bargain with Local 32BJ or because employees join or support
Local 32BJ or any other labor organization.
WE WILL NOT refuse to recognize and bargain with Local
32BJ as the exclusive collective-bargaining representative of
our cleaning employees at Cross Point, in Lowell, Massachu-
setts, and Nagog Park, Massachusetts.
WE WILL NOT unilaterally change the wages, hours, and other
terms and conditions of employment of the employees in the
above described units without first giving notice to and bargain-
ing with Local 32BJ.
WE WILL NOT provide assistance to and extend our collective-
bargaining agreement with International Brotherhood of Team-
sters, Local Union No. 25 to the employees in the above de-
scribed units and maintain and give effect to this agreement,
including the union-security and dues-checkoff provisions of
the contract.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL recognize and, on request, bargain collectively with
Local 32BJ as the exclusive representative of our cleaning em-
ployees employed at the Cross Point and Nagog Park facilities
with respect to wages, hours, and other terms and conditions of
employment, and if an agreement is reached, embody such
agreement in a signed document.
WE WILL make whole the bargaining unit employees for any
losses caused by our failure to apply the terms and conditions
of employment that existed prior to our commencing operations
at the Cross Point and Nagog facilities until such time as the
parties have reached an agreement or until a valid impasse in
bargaining has occurred.
WE WILL to the extent that we have not already done so, offer
employment to their former jobs, Gloria Guerra; Robert
Mieses; Orlando De Jesu Parra; Cesar Cedano Presinal; Adal-
berto Mendez Quezada; Monica Mendez; Franciso Velasquez
Allende; Arcelia Curiel, Ruth Marquez; Dorca Marquez,
Dolores Feliz; Marianela Santana; Daniel Berrio Naranjo; Jorge
Restrepo; Josean Isaac Rivera; and Evelyn Ramos, or if those
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or any other rights or privileges
previously enjoyed.
WE WILL make the employees named above, whole with in-
terest, for any loss of earnings and other benefits suffered as a
result of the discrimination against them.
WE WILL reimburse any employees at Cross Point or Nagog
Park from whose wages, dues, or initiation fees for Teamsters
Local 25 have been deducted.
EMERALD GREEN BUILDING SERVICES, LLC