EMPIRE JANITORIAL SALES & SERVICE, LLC

National Labor Relations Board - Board Decisions

Nov 3, 2016

364 NLRB No. 138 (N.L.R.B. 2016)

364 NLRB No. 138
NOTICE: This opinion is subject to formal revision before publication in the bound
volumes of NLRB decisions. Readers are requested to notify the Executive Sec-
retary, National Labor Relations Board, Washington, D.C. 20570, of any ty-
pographical or other formal errors so that corrections can be included in the
bound volumes.
Empire Janitorial Sales & Service, LLC and United
Labor Unions, Local 100. Case 15–CA–146938
November 3, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND MCFERRAN
On May 16, 2016, Administrative Law Judge Geoffrey
Carter issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order as modified.3

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 Although Member Miscimarra agrees that the Respondent is a
successor employer, he does not agree that the successor bar precludes
the Respondent from challenging the Union’s majority status. As he
has stated previously, Member Miscimarra disagrees with the succes-
sor-bar principles established in UGL-UNICCO Service Co., 357
NLRB 801 (2011), and would adhere to the standard as articulated in
MV Transportation, 337 NLRB 770 (2002), under which an incumbent
union in a successorship situation is entitled only to a rebuttable pre-
sumption of continuing majority status. See FJC Security Services, 360
NLRB No. 115, slip op. at 1–4 (2014) (concurring opinion of Member
Miscimarra). Because the Respondent has failed to show that it had a
valid basis for contesting the Union’s majority status under any stand-
ard, Member Miscimarra finds it unnecessary to rely on Levitz Furni-
ture Co. of the Pacific, 333 NLRB 717 (2001), cited by the judge, or to
pass on whether Levitz was correctly decided. Accordingly, he agrees
that the Respondent violated Sec. 8(a)(5) of the Act when it unlawfully
failed to recognize and bargain with the Union.
3 Although the Respondent excepted to the judge’s finding that it
unlawfully refused to recognize the Union in violation of Sec. 8(a)(5)
and (1), it has not argued that the judge’s recommended affirmative
bargaining order is improper, even assuming the Board affirms the
judge’s finding. We therefore find it unnecessary to provide a specific
justification for this affirmative bargaining order. SKC Electric, Inc.,
350 NLRB 857, 862 fn. 15 (2007); Heritage Container, Inc., 334
NLRB 455, 455 fn. 4 (2001). See also Scepter, Inc. v. NLRB, 280 F.3d
1053, 1057 (D.C. Cir. 2002). Member Miscimarra believes the Board
should evaluate the appropriateness of an affirmative bargaining order,
which is an “extraordinary remedy,” Lee Lumber & Building Material
Corp. v. NLRB, 117 F.3d 1454, 1461 (D.C. Cir. 1997), by giving “due
consideration to the employees’ section 7 rights,” determining whether
“other purposes . . . override the rights of the employees to choose their
bargaining representatives,” and evaluating whether “other remedies,
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Empire
Janitorial Sales & Service, LLC, Metairie, Louisiana, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
“(a) Recognize and, on request, bargain with the Union
as the exclusive collective-bargaining representative of
the employees in the following appropriate unit concern-
ing terms and conditions of employment and, if an un-
derstanding is reached, embody the understanding in a
signed agreement:
All custodial and maintenance employees employed by
Empire Janitorial Sales & Service, LLC at OPSB facili-
ties in the New Orleans metropolitan area. Excluded:
Office clerical employees, professional employees,
guards and supervisors as defined in the Act.”
2. Substitute the following for paragraph 2(b).
“(b) Within 14 days after service by the Region, post at
its facility in Metairie, Louisiana, copies of the attached
notice marked “Appendix.”4 Copies of the notice, on
forms provided by the Regional Director for Region 15,
after being signed by the Respondent’s authorized repre-

less destructive to employees’ rights, are . . . adequate.” Peoples Gas
System, Inc. v. NLRB, 629 F.2d 35, 46 (D.C. Cir. 1980); see also Lee
Lumber, above, 117 F.3d at 1460–1462. However, he agrees that such
an evaluation is unnecessary here, given the absence of exceptions to
the bargaining order.
Although no party requested posting of the Board notice in both
English and Spanish or excepted to the judge’s failure to require a
bilingual posting, the Board has the authority to consider remedial
issues sua sponte. See, e.g., J. Picini Flooring, 356 NLRB 11, 12 fn. 5
(2010); Indian Hills Care Center, 321 NLRB 144, 144 fn. 3 (1996) (“It
is also firmly established that remedial matters are traditionally within
the Board’s province and may be addressed by the Board in the absence
of exceptions.”). Here, given evidence that at least one employee of the
bargaining unit speaks only Spanish and thus would not understand an
English-only notice, we shall modify the judge’s recommended Order
to require the Respondent to post notices in both English and Spanish.
See, e.g., Eastern Essential Services, 363 NLRB No. 176, slip op. at 1
fn. 3 (2016); Barnard College, 340 NLRB 934, 934 fn. 3 (2003) (Board
ordered notice to be posted in English and Spanish where two discrimi-
natees had limited proficiency in English). Under the circumstances
here, Member Miscimarra would not require a bilingual posting where
it was not requested by the General Counsel or the Charging Party.
We shall modify the judge’s recommended Order to reflect the re-
medial change and to conform to the Board’s standard remedial lan-
guage, and shall substitute a new notice to conform to the Order as
modified.
4 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.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
sentative, shall be posted by the Respondent in English
and Spanish 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, the notices shall be distrib-
uted electronically, such as by email, posting on an intra-
net or an internet site, and/or other electronic means, if
the Respondent customarily communicates with its em-
ployees by such means. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facili-
ty involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since February 5,
2015.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
Dated, Washington, D.C. November 3, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Philip A. Miscimarra, Member
______________________________________
Lauren McFerran, 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 vio-
lated 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 fail and refuse to recognize and bargain
with the Union as the exclusive collective-bargaining
representative of our employees in the bargaining unit.
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 the
Union as the exclusive collective-bargaining representa-
tive of the employees in the following appropriate unit
concerning terms and conditions of employment and, if
an understanding is reached, embody the understanding
in a signed agreement:
All custodial and maintenance employees employed by
Empire Janitorial Sales & Service, LLC at OPSB facili-
ties in the New Orleans metropolitan area. Excluded:
Office clerical employees, professional employees,
guards and supervisors as defined in the Act.
EMPIRE JANITORIAL SALES & SERVICE, LLC
The Board’s decision can be found at
www.nlrb.gov/case/15–CA–146938 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Andrew Miragliotta, Esq., for the General Counsel.
Michael Tusa, Esq., for the Respondent.
DECISION
GEOFFREY CARTER, Administrative Law Judge. In this case,
the General Counsel alleges that Empire Janitorial Sales and
Service, LLC (Respondent) unlawfully failed and refused to
bargain with United Labor Unions, Local 100 (the Union) when
the Union requested bargaining in February 2015. The General
Counsel and the Union maintain that Respondent was obligated
to bargain with the Union because Respondent is a successor
EMPIRE JANITORIAL SALES & SERVICE, LLC 3
employer, and because a majority of the employees in Re-
spondent’s bargaining unit were former employees of Respond-
ent’s predecessor, GCA Services Group, Inc., and therefore
were represented by the Union.
Respondent asserts that it did not have an obligation to rec-
ognize and bargain with the Union because: the Union did not
have majority support in February 2015; Respondent is not a
successor employer; and Respondent was not sufficiently
staffed until April 2015, at which time the Union did not repre-
sent a majority of the employees in Respondent’s bargaining
unit. Respondent also raised due process objections to the
Board’s Rules governing whether and when the General Coun-
sel must disclose documents to Respondent.
As explained below, I find that Respondent violated Section
8(a)(5) and (1) of the National Labor Relations Act (the Act) as
alleged in the complaint.
STATEMENT OF THE CASE
This case was tried in New Orleans, Louisiana, on March 16,
2016. The Union filed the charge in Case 15–CA–146938 on
February 24, 2015, and amended that charge on April 9 and 29,
and May 11, 2015.1
The General Counsel issued a complaint in Case 15–CA–
146938 on February 8, 2016. In the complaint, the General
Counsel alleged that Respondent violated Section 8(a)(5) and
(1) of the National Labor Relations Act (the Act) by, since on
or about February 5, 2015, failing and refusing to recognize and
bargain with the Union as the exclusive collective-bargaining
representative of the bargaining unit. Respondent filed a timely
answer denying the alleged violations in the complaint.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT3
I. JURISDICTION
Respondent, a corporation with an office and place of busi-
ness in Metairie, Louisiana, provides janitorial, custodial and
maintenance services. Respondent annually derives gross rev-
enues in excess of $500,000, and annually purchases and re-
ceives goods and materials at its Metairie, Louisiana facility
that are valued in excess of $5000 and come directly from
points outside the State of Louisiana. Respondent admits, and I
find, that Respondent is an employer engaged in commerce

1 All dates are in 2015, unless otherwise indicated.
2 The transcripts and exhibits in this case generally are accurate, but
I hereby make the following corrections to the record: page 7, l. 14:
“businesses” should be “witnesses”; page 40, l. 17: Mr. Tusa was the
speaker; page 99, l. 22: “day” should be “say”; page 128, l. 3: “restau-
rants” should be “restrooms”; page 129, l. 2: “GCS” should be “GCA”;
throughout the transcript: witness Stafford “Brigmac” should be wit-
ness Stafford “Brignac”; and “Charging Party Exhibits” should be
“Respondent’s Exhibits.”
3 Although I have included several citations in this decision to high-
light particular testimony or exhibits in the evidentiary record, I empha-
size that my findings and conclusions are not based solely on those
specific citations, but rather are based on my review and consideration
of the entire record for this case.
within the meaning of Section 2(2), (6), and (7) of the Act. I
also find that the Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Overview
The dispute in this case arises out of the Orleans Parish
School Board’s (OPSB) periodic efforts to hire a contractor to
provide janitorial, custodial and maintenance services in its
facilities between 2009 and 2015. At different points in that
timeframe, Respondent and GCA Services Group, Inc. (GCA
Services) submitted competing bids to provide those services to
the OPSB. As described in more detail below, the OPSB se-
lected GCA Services’ bids for certain contracts between 2009
and 2014. In January 2015, however, the OPSB selected Re-
spondent’s bid to begin providing janitorial, custodial and
maintenance services to the OPSB. The General Counsel and
the Union maintain that Respondent unlawfully failed and re-
fused to bargain with the Union after Respondent hired several
former GCA Services employees and began providing services
to the OPSB under the January 2015 contract.
B. Initial GCA Services Contracts with the Orleans Parish
School Board
1. Contracts for custodial and janitorial services
In March 2009, GCA Services began providing custodial,
maintenance and landscaping services to the OPSB. (GC Exh.
2(e) (p. 2).) Since that contract was only an emergency con-
tract that lasted for the calendar year, in November 2009, the
OPSB requested new proposals to provide custodial and janito-
rial services at the following four schools: Mary McLeod Be-
thune Elementary; Benjamin Franklin Elementary; McDonogh
35 Senior High School; and Eleanor McMain Magnet School.
The specific custodial and janitorial services that the OPSB
sought included, but were not limited to, the following services
in school classrooms, lab areas, offices, restrooms, and com-
mon areas (e.g., hallways, stairwells, lobbies and elevators):
cleaning, dusting, sweeping, mopping, vacuuming, and trash
removal. (Jt. Exh. 1; GC Exh. 2(c); see also GC Exh. 2(d) (ad-
denda to the November 2009 request for proposals).)
On December 15, 2009, the OPSB selected and approved
GCA Services’ proposal to provide janitorial and custodial
services.4 (Jt. Exh. 1 (p. 1); see also GC Exh. 2(b) (p. 4).)
Accordingly, on January 1, 2010, the OPSB and GCA Services
executed a contract for GCA Services to provide custodial and
janitorial services to the OPSB at the four schools identified
above. By its terms, the contract would remain in effect until
January 1, 2013, with the OPSB retaining the option to extend
the contract for one or 2 years. The contract identified the fol-
lowing scope of work:
The Contractor shall furnish all labor, materials, equipment,
and insurance necessary to perform and fully complete, in
every respect, within the time frame herein specified, all work
(hereinafter referred to as the “services”) specified in the [re-

4 Respondent also submitted a proposal to provide custodial and jan-
itorial services to the OPSB. (GC Exh. 2(e) (last page); Tr. 40.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
quest for proposals] and Contractor’s Response thereto, for
the following:
Custodial and Janitorial Services for the following
OPSB School Sites:
(a) Benjamin Franklin Elementary
(b) McDonogh #35
(c) McMain High School
(d) Bethune Elementary
(GC Exh. 2(b) (addresses of school sites omitted).)
2. Contracts for routine maintenance services
On April 28, 2011, the OPSB requested proposals to provide
routine maintenance services at OPSB school sites. (GC Exh.
2(g); see also GC Exh. 2(h)–(j) (addenda to the April 28, 2011
request for proposals).) The OPSB’s request included preven-
tive maintenance services in the following areas (among oth-
ers): walkways and parking areas; fencing, building foundation
and structure system; roofing; windows and doors; building
interior finishes; mechanical systems (e.g., boilers, water heat-
ers; electrical and lighting; and life/safety (e.g., testing fire
alarms, sprinkler system.) In connection with its request for
proposals, the OPSB expected its contractor to have techni-
cians, carpenters, plumbers, electricians, pipefitters, and weld-
ers available to perform the work in the OPSB’s facilities. (GC
Exhs. 2(g) (pp. 10–12); 2(k) (pp. 10–12).) In addition, the
OPSB expected its contractor to perform some landscaping
duties (e.g., caring for lawns, trees and shrubs). (GC Exh. 2(i)
(p. 2).)
On June 22, 2011, GCA Services submitted its proposal to
handle routine maintenance at OPSB schools. (GC Exh. 2(k).)
The OPSB selected and approved GCA Services’ proposal, and
accordingly, on August 16, 2011, GCA Services and the OPSB
executed a contract for routine maintenance services for OPSB
schools. The contract was effective for 3 years, and identified
the following scope of work:
Contractor agrees to provide for the timely and efficient re-
moval, repair, replacement, and/or installation of Routine
Maintenance items, inspections, and preventative mainte-
nance in the existing OPSB School Sites, all as more particu-
larly described in [the request for proposals].
It is the intent of this Agreement that Contractor shall provide
24-hour on-call repair service including the labor, equipment,
supervision, and where requested by the Executive Director of
Operations for OPSB, the materials necessary and reasonably
ncidental to the routine maintenance repairs at the OPSB
school sites. All work to be done in accordance with the spec-
ifications referenced in [the request for proposals] and appli-
cable codes.
(GC Exh. 2(f) (pp. 4–7).)
C. June 2012—Union Certified as Representative of Certain
GCA Services Employees
On June 18, 2012, the Board issued a certification of repre-
sentative that identified the Union as the exclusive collective-
bargaining representative of employees in the following bar-
gaining unit:
All custodial, maintenance and landscaping employees em-
ployed by [GCA Services] at its school worksites in the New
Orleans metropolitan area. Excluded: Office clerical em-
ployees, professional employees, guards and supervisors as
defined in the Act.
(GC Exh. 3; see also Tr. 44–46, 63, 80–82.)
On October 5, 2012, GCA Services and the Union executed
a collective-bargaining agreement covering the bargaining unit
specified above. In that agreement, GCA Services recognized
the Union as the sole and exclusive representative of all of
[GCA Services’] employees in the bargaining unit. The collec-
tive-bargaining agreement was effective for 3 years, and would
continue to be in full force and effect for additional one-year
periods unless the Union or GCA Services provided timely
written notice of a desire to change, modify or terminate the
agreement. (GC Exh. 4 (Arts. 1 and 18); Tr. 46–48, 63, 80–82.)
D. GCA Services Provides Custodial, Janitorial and Routine
Maintenance Services at an Increasing Number of
OPSB Facilities
With both a contract for custodial and janitorial services and
a contract for routine maintenance services in place, GCA Ser-
vices began providing services and submitting purchase orders
to the OPSB for payment under the contracts. Some of the
purchase orders related to the original four school facilities
(i.e., Mary McLeod Bethune Elementary; Benjamin Franklin
Elementary; McDonogh 35 Senior High School; and Eleanor
McMain Magnet School) identified in the January 2010 con-
tract for custodial and janitorial services. (See, e.g., GC Exh.
2(l) (pp. 1, 5, 7, 12, 14–15, 21–22, 26–28, 34, 44, 47–52, 55);
GC Exh. 2(m)–(n); GC Exh. 7 (pp. 2, 5).) However, GCA
Services also provided custodial, janitorial and maintenance
services at several other OPSB facilities, including but not lim-
ited to:
4422 General Meyer Building
4460 General Meyer Building
Benjamin Franklin Elementary Extension
Central Office Timbers Park Building
Mahalia Jackson Elementary
Priestley
Robert Moton Elementary
(GC Exh. 2(l) (pp. 5, 8, 12, 17, 20, 22, 24, 26–27, 29–30, 40–
43, 46–50, 54–55); GC Exh. 2(m)–(n); GC Exh. 7 (p. 7, 9); Tr.
91, 96–97.)5 GCA Services provided a broad range of mainte-
nance services in OPSB facilities in this timeframe, including
(but not limited to) the following:
(a) Carpentry—such as replacing damaged flooring;
(b) Electrical—such as replacing light bulbs and repair-
ing/replacing outlets and switches;

5 Additional facilities included: A. P. Tureaud; Einstein Charter
School; Holy Ghost Elementary School; Jo Ellen Smith; Karr High
School; McDonogh #7; New Orleans Free School; and Youth Study
Center. (GC Exh. 2(l) (pp. 2, 10–11, 16, 18–19, 23, 25, 27, 31–33, 35–
39, 45); GC Exh. 7 (p. 1).)
EMPIRE JANITORIAL SALES & SERVICE, LLC 5
(c) HVAC—such as repairing/maintaining boilers6 and chill-
ers;
(d) Plumbing—such as repairing toilets, flush valves and wa-
ter lines;
(e) Painting—such as touch up painting on drywall; and
(f) Exterior—such as checking drainage and roofing.
(Tr. 91–93; see also GC Exh. 2(l) (pp. 1–2, 7–9, 14–21, 23–35,
37, 39–40, 42, 44–46, 51–55; GC Exh. 7 (pp 1–10).)7
E. Fall 2014—The OPSB Issues a Request for Proposals for
Custodial, Janitorial and Maintenance Services
As the existing contracts with GCA Services for custodial,
janitorial and maintenance services came to a close, the OPSB
decided to consolidate the services in a single contract. (Tr.
97–98.) Accordingly, on September 19, 2014, the OPSB issued
a request for proposals to provide custodial, janitorial and
maintenance repair services in the following facilities:
School Sites
Benjamin Franklin Elementary;
Benjamin Franklin Elementary Extension
Eleanor McMain Magnet School
Mahalia Jackson Elementary
Mary McLeod Bethune Elementary;
McDonogh 35 Senior High School;
Office Buildings
4422 General Meyer Building
4460 General Meyer Building
Central Office Timbers Park Building (3520 General
DeGaulle Building)
Vacant Sites
Benjamin Franklin Elementary Extension—Lodge
Carrollton Court House
Priestley
Robert Moton Elementary
(Jt. Exh. 2 (pp. 2, 51–53); Jt. Exh. 13 (pars. 7–8).)
The custodial and janitorial services that the OPSB required
were virtually identical to those that the OPSB required when it
issued its November 2009 request for proposals. Specifically,
the OPSB sought the following custodial and janitorial services
(among others) in classrooms, lab areas, offices, restrooms and
common areas (e.g., hallways, stairwells, lobbies and eleva-

6 The work on boilers has also been characterized as plumbing
work. (See Jt. Exh. 2 (p. 48) (September 2014 request for proposals to
do custodial, janitorial and maintenance for the OPSB).)
7 GCA Services provided both basic and major maintenance ser-
vices to the OPSB. (Tr. 95.) However, if GCA Services proposed
maintenance work with a materials cost that would exceed a certain
“competitive threshold,” then the OPSB was required to seek bids from
contractors to perform the work (including GCA Services, if it wished
to submit a bid). On the other hand, for maintenance work that would
include a materials cost of $5000 or less, the OPSB had the option of
simply having GCA Services perform the work. (See GC Exhs. 2(f) (p.
8.); 2(g) (p. 11); see also GC Exh. 7 (pp. 11–26) (OPSB contracts based
on successful bids by GCA Services to do repairs such as remov-
ing/replacing boilers or chillers in certain OPSB facilities).)
tors): cleaning, dusting, sweeping, mopping, vacuuming, and
trash removal. (Compare Jt. Exh. 2 (pp. 30, 32–44) (Sept. 2014
request for proposals) with GC Exh. 2(c) (pp. 21–34) (Nov.
2009 request for proposals); (see also Findings of Fact (FOF)
sec. II(B)(1), supra).
As for maintenance, the OPSB expected its contractor to
provide preventive maintenance, semi-annual facility inspec-
tions, and corrective maintenance, as long as the maintenance
was “basic” in nature (i.e., maintenance that would cost $5000
or less). (Jt. Exh. 2 (pp. 29, 45–49); Jt. Exh. 3 (p. 1).) The
OPSB expected its contractor to provide preventive mainte-
nance on the following systems (among others):
(a) HVAC;
(b) Plumbing and fixtures;
(c) Roofing;
(d) Life safety and security systems;
(e) Interior finishes (including paint, flooring, woodwork,
walls and ceilings);
(f) Doors and windows;
(g) Structural components;
(h) Exterior finishes; and
(i) Exterior equipment (including parking areas, fencing and
playground equipment).
(Jt. Exh. 2 (p. 45).)
The OPSB also expected its contractor to develop a program
to address corrective maintenance issues in a timely manner
based on the nature of the maintenance request. Corrective
maintenance services could include, but were not limited to:
(a) Carpentry—such as repairing/replacing damaged flooring,
doors, furniture or ceiling tiles;
(b) Electrical—such as repairing/replacing service panels,
main switch gear, breakers and lighting;
(c) HVAC—such as repairing/maintaining chillers, cooling
towers, filters, thermostats and motors;
(d) Plumbing—such as repairing/replacing faucets, fixtures,
water heaters, pipes and boilers;
(e) Painting—such as touch up painting in interior or exterior
areas;
(f) Exterior—such as checking drainage and clearing drains,
gutters and leaders; and
(g) Other—such as maintaining building energy management,
heating and cooling systems.
(Jt. Exh. 2 (pp. 45–49); Tr. 145–148.)8
Finally, the OPSB expected its contractor to inspect facilities
semiannually to identify: deficiencies in preventive mainte-
nance; needed repairs; and needed capital or major maintenance
projects. (Jt. Exh. 2 (p. 45).) The OPSB did not request any
landscaping services in its request for proposals to provide

8 The OPSB set a limit on the cost of maintenance that its selected
contractor should perform under the maintenance contract. For basic
maintenance that cost $5000 or less, the contractor could perform the
work. However, for major maintenance costing more than $5000 and
having a useful life of at least 3 years, the contractor would need to
submit three written quotes for performing the specific major mainte-
nance project. (See Jt. Exh. 2 (pp. 31, 49) (explaining the difference
between basic maintenance and major maintenance); Tr. 148–149.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
custodial, janitorial and maintenance services. (See Jt. Exh. 2;
see also Jt. Exh. 13 (par. 27) (noting that Respondent does not
provide any landscaping services under its contract with
OPSB).)
F. December 2014—The OPSB Selects Respondent’s Proposal
to Provide Custodial, Janitorial and Maintenance Services to
the OPSB
In October 2014, both Respondent and GCA Services sub-
mitted proposals to provide custodial, janitorial and mainte-
nance services to the OPSB.9 When Respondent submitted its
proposal, it was not aware that the Union represented GCA
Services’ employees who provided services in OPSB facilities,
and also was not aware that there was a collective-bargaining
agreement between the Union and GCA Services. (Jt. Exhs. 2,
13 (pars. 9–10, 13); Tr. 16, 23–25, 28, 82–83, 93.)
On or about December 16, 2014, the OPSB selected Re-
spondent’s proposal to provide custodial, janitorial and mainte-
nance services to the OPSB. (Jt. Exh. 13 (pars. 9, 12); Tr. 27,
93–94.)
F. January 2015—Respondent Prepares to Provide Services to
the OPSB and Signs a Contract with the OPSB
1. Respondent’s preparations to provide services to the OPSB
In January 2015, Respondent arranged site visits to each of
the schools that it would be servicing for the OPSB. In those
visits, Respondent’s operations manager, Dayle Hernandez met
with employees who were working for GCA Services to advise
them that Respondent would begin providing custodial and
janitorial (and maintenance) services starting on February 2,
2015, and to encourage those employees to fill out applications
to work for Respondent in the same positions that they held for
GCA Services. (Tr. 101–103, 106–107, 123–125, 129.)
2. Respondent’s contract with the OPSB
On January 31, 2015, Respondent and the OPSB executed a
contract for custodial, janitorial and maintenance repair ser-
vices. The contract was effective for 3 years, and could be
renewed for two additional 1-year periods. (Jt. Exhs. 7 (p. 7);
13 (par. 15); Tr. 27.)
Under the contract, Respondent was responsible for provid-
ing custodial, janitorial and maintenance/repair services at the
following schools:
Benjamin Franklin Elementary;
Benjamin Franklin Elementary Extension
Eleanor McMain Magnet School
Mahalia Jackson Elementary
Mary McLeod Bethune Elementary; and
McDonogh 35 Senior High School.
Respondent was also responsible for providing mainte-
nance/repair services at the following office buildings and va-

9 There is no dispute that Respondent and GCA Services are sepa-
rate entities. The companies do not have any shared officers, directors
or owners, and Respondent did not purchase any equipment or supplies
from GCA Services after the OPSB selected Respondent’s proposal to
provide custodial, janitorial and maintenance services. (Jt. Exh. 13
(pars. 4–6, 14); see also Tr. 21–23.)
cant facilities:
4422 General Meyer Building
4460 General Meyer Building
Benjamin Franklin Elementary Extension – Lodge (vacant)
Carrollton Court House (vacant)
Central Office Timbers Park Building (3520 General
DeGaulle Building)10
Priestley (vacant)
Robert Moton Elementary (vacant)
The parties agree that the janitorial and custodial work under
Respondent’s contract with OPSB is the same as the janitorial
and custodial work that GCA provided under its contract with
OPSB, except that Respondent is not required to clean trash
containers in restrooms or classrooms, and Respondent is re-
quired to pressure wash walkways. The parties also agree that
Respondent does not perform any landscaping work for the
OPSB under the contract. (Jt. Exh. 13 (pars. 15–19, 27); Tr.
29.) As for maintenance work, Respondent provided the pre-
ventive and corrective maintenance work set forth in the
OPSB’s September 2014 request for proposals. (See Findings
of Fact, Section II(E), supra; Tr. 145–148, 150–153.)
G. February 2015—Respondent Begins Providing Services to
the OPSB under the Custodial, Janitorial and Maintenance
Repair Services Contract
On February 2, 2015, Respondent, using its own manage-
ment team (Respondent did not hire any supervisors from GCA
Services), began providing custodial, janitorial and mainte-
nance repair services to the OPSB. Although there was limited
time between GCA Services’ last day and Respondent’s first
day of working in OPSB schools (GCA Services ended its work
on January 31, and Respondent started on February 2) and
OPSB schools were in the middle of the school year, the transi-
tion was relatively seamless. In part because Respondent hired
several former GCA Services employees, Respondent had
enough employees to start work on its contract with OPSB as
scheduled on February 2. Almost all10 of the former GCA Ser-
vices employees who agreed to work for Respondent continued
to work in the same OPSB facility as they had with GCA Ser-
vices, and continued to carry out their usual dusting, cleaning,
sweeping, mopping and waxing tasks (albeit with a different
uniform to wear and some different cleaning products to use).
(Tr. 15, 21–23, 28, 51, 103–106, 121–123, 125, 129, 142; see
also Jt. Exh. 10 (indicating that 21 of the 30 employees that
Respondent used for the OPSB contract on February 2 were
former GCA Services employees, and that 26 of the 30 em-
ployees were part-time or full-time custodians); GC Exh. 5
(indicating that as of January 28, 2015, GCA Services had 37
part-time and full-time custodians that worked in OPSB facili-
ties); Jt. Exh. 11 (OPSB school district calendar).)

10 It appears that Respondent also provided custodial work at the
Central Office Timbers Park building. (See Jt. Exh. 10 (listing one
custodial employee assigned to that location).)
10 As of February 3, 21 out of 23 former GCA Services employees
who worked for Respondent were placed at the same OPSB facility
where they worked under GCA Services. (Compare Jt. Exh. 10 with
GC Exh. 5.)
EMPIRE JANITORIAL SALES & SERVICE, LLC 7
During and shortly after February 2015, the number of non-
managerial employees that Respondent used to perform the
work for the OPSB varied due to some employee turnover.
Accordingly, Respondent’s staffing levels were as follows for
its first few months servicing the OPSB contract:11
Date (2015) Number of former
GCA Services
employees in the
bargaining unit
working for Re-
spondent on the
OPSB contract12
Total number of
employees in the
bargaining unit
working for Re-
spondent on the
OPSB contract
February 2 21 (all custodians) 30 (26 custodians; 4
maintenance)
February 3 23 (all custodians) 35 (31 custodians; 4
maintenance)

11 All employees assigned to one of the six OPSB schools did cus-
todial work. Similarly, the one employee assigned to the Central Office
Timbers Park building did custodial work. Respondent also employed
3–4 “maintenance and repair” employees who exclusively handled that
type of work, and did not perform any custodial work. Finally, starting
in late February 2015, Respondent employed a few (usually 3) employ-
ees in a “floater” position, meaning that those employees could be
assigned to perform custodial work at any location where they were
needed (e.g., due to employee absences or staffing shortages). (Jt. Exh.
10; Tr. 30–32, 39, 129–130, 144–145.)
12 The parties dispute whether employees D.P. and D.J. should
count as former GCA Services employees. (Tr. 135–136 (discussing Jt.
Exh. 10); see also GC Posttrial Br. at 7 fn. 3; R. Posttrial Br. at 11 fn.
19).) In support of its argument concerning D.P., the General Counsel
observes that D.P. is listed as an employee on the last page of GC Exh.
7, which lists employees who worked in OPSB facilities. However,
Respondent points out that D.P. is not listed as an employee on GC
Exh. 5, which is also a list of employees who worked in OPSB facili-
ties. Since these two exhibits conflict as to D.P.’s status as a former
GCA Services employee and I do not have a basis to credit one exhibit
over the other, I find that the General Counsel did not prove that D.P.
(or D.J., who apparently stopped working for GCA Services on January
14, 2015, and then was hired by Respondent on February 2, 2015 (see
GC Exh. 7 (p. 27); Jt. Exh. 10)) should be counted as former GCA
Services employees, and my decision on that issue is reflected in the
employee counts stated in the table. I note that my decision to count
former GCA employees in this manner (with D.P. and D.J. not counted
as former GCA Services employees) does not affect the outcome in this
case.
February 5 22 (all custodians --
employee R.B. not
included due to
termination on
February 5)
35 (31 custodians; 4
maintenance)
February 11 22 (all custodians) 38 (34 custodians; 4
maintenance)
March 2 18 (all custodians) 41 (38 custodians; 3
maintenance)
April 1 17 (all custodians) 39 (36 custodians; 3
maintenance)
April 15 16 (all custodians) 41 (38 custodians; 3
maintenance)
April 3013 15 (all custodians) 36 (33 custodians; 3
maintenance)
(Jt. Exh. 10; see also Jt. Exh. 13 (pars. 22, 24–25); GC Exh. 5
(identifying employees who worked for GCA Services as cus-
todians in OPSB facilities as of January 28, 2015); Tr. 33–34,
130.) To the extent that any staffing shortfalls arose during this
time period, Hernandez and one other manager occasionally
stepped in to handle custodial or janitorial assignments. (Tr.

13 The parties stipulated that as of the date of trial (March 16, 2016),
Respondent had 25 nonmanagerial employees in the bargaining unit
that were providing services at OPSB facilities. (Jt. Exh. 13 (par. 26);
see also R. Exh. 3.) Approximately 5 those 25 employees were former
GCA Services employees. Although it may have been short staffed at
the time of trial, Respondent was able to provide the services that the
OPSB requires at its facilities. (Tr. 131–134 (noting that Hernandez
occasionally assists with custodial work, and that as of the day of trial
Respondent had a similar number of facilities to service for the OPSB
as it did in February 2015); see also Jt. Exh. 10 (showing that 5 former
GCA Services employees continue to work for Respondent).)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
130–131.)
I. February 2015—Respondent Declines the Union’s Request to
Bargain
On February 5, 2015, the Union sent Respondent a letter to
ask Respondent to bargain about a collective-bargaining
agreement. (Tr. 19, 52.) The Union stated as follows in its
letter:
[The Union] is the certified representative and collective bar-
gaining agent of [Respondent’s] custodians that were em-
ployed by GCA.
[Respondent] took over the provision of these services as em-
ployer of the custodians on or about February 2, 2015. You
have now hired and retained fifty percent plus one of the
GCA employees, therefore establishing [Respondent] as the
successor employer and the party obligated to bargain with
our union for the purposes of [effecting] a collective bargain-
ing agreement.
In confirming our majority over the last week we are request-
ing to begin collective bargaining as soon as possible to en-
sure the maximum stability of operations for workers and for
your company. We will be available at your convenience to
meet at any time or Monday, February 9, Wednesday Febru-
ary 11 and Friday February 13.
(Jt. Exh. 8; see also Jt. Exh. 13 (par. 21); GC Exh. 5 (the docu-
ment that the Union used to determine how many former GCA
Services employees Respondent hired); Tr. 19, 28, 52–54.)14
In a letter dated February 11, 2015, Respondent declined the
Union’s request to bargain, stating as follows:
We were the successful proposer to provide Janitorial service
to the OPSB effective February 02, 2015. We have not em-
ployed “fifty percent plus one” of the employees that were
terminated by GCA as stated in your letter dated 02–05–2015.
As a private sector employer in a Right to Work State we are
not interested in negotiating a collective bargaining agree-
ment.
(Jt. Exh. 9; see also Jt. Exh. 13 (par. 23); Tr. 19–20, 55.) Upon
receiving the February 11, 2015 letter from Respondent, the
Union attempted to reach Respondent by telephone in mid-
February, and then filed ULP charges when Respondent did not
call back in response to the Union’s voice mail message. (Tr.
55.)
At trial, the General Counsel agreed that the Union’s request
that Respondent bargain only applies to Respondent’s employ-
ees in the bargaining unit that work at OPSB facilities pursuant
to Respondent’s January 2015 contract to provide janitorial,
custodial and maintenance services to the OPSB. Accordingly,

14 When GCA Services stopped providing services to the OPSB
(and Respondent took over), approximately 12–15 GCA Services em-
ployees in the bargaining unit were paying union dues. Since Respond-
ent did not follow the dues-checkoff authorizations that former GCA
Services employees had with GCA Services, all members of the bar-
gaining unit stopped paying union dues after Respondent began provid-
ing services to the OPSB. (Tr. 70–74, 87–88; see also GC Exh. 4 (Arti-
cle 15—Dues Checkoff).)
the appropriate bargaining unit is:
All custodial and maintenance employees employed by Re-
spondent at OPSB facilities in the New Orleans metropolitan
area. Excluded: Office clerical employees, professional em-
ployees, guards and supervisors as defined in the Act.
(Tr. 7–10; see also FOF, Section II(C) (describing GCA Ser-
vices’ bargaining unit); FOF, Section II(E) (noting that Re-
spondent does not provide any landscaping services to the
OPSB).)
J. Evidence and Witnesses during Trial
At the beginning of trial on March 16, 2016, Respondent,
through counsel, objected to the Board’s rules and procedures
on due process grounds. In particular, Respondent objected
that under the Board rules, Respondent does not receive ad-
vance notice of the General Counsel’s witnesses or exhibits,
and does not receive any statements of the General Counsel’s
witnesses until after the witness testifies. I overruled Respond-
ent’s due process objection because I am bound to follow the
Board’s rules. (Tr. 7–8.)
In its case in chief, the General Counsel called Union state
director Rosa Hines to testify as one of its witnesses. (Tr. 41.)
When cross examining Hines, Respondent showed Hines a
copy of a subpoena that Respondent sent to the Union, and
asked Hines if she had documents to produce in response to the
subpoena.15 Hines replied that she never received the subpoe-
na. Respondent objected to the General Counsel’s refusal to
provide responsive documents in the Union’s stead, and then
completed its cross examination of Hines. (Tr. 57–62; R. Exh.
2.) At the conclusion of Hines’ testimony, I asked Hines (off
the record) if she would be able to return to the Union’s office
and search for documents that would be responsive to Re-
spondent’s subpoena. When Hines replied that she was due to
be hospitalized in the afternoon, the parties and I agreed that
due to her medical appointment, Hines could be released as a
witness and from searching for documents (subject to being
contacted by counsel if any need for followup arose). (Tr. 107–
108; see also Tr. 86–87.)
Next, the General Counsel called former GCA Services
manager Stafford Brignac as a witness. After Brignac an-
swered questions in response to direct and cross examination, I
excused Brignac (who had appeared pursuant to a subpoena
served by the General Counsel). (Tr. 89–98.)
After another witness testified for the General Counsel, the
General Counsel offered a group of documents (GC Exhs. 2(a)–
2(m)) into evidence. Respondent objected to GC Exh. 2 on due
process grounds because the exhibit included a lengthy group
of documents that Respondent was receiving for the first time,
and because Respondent did not have an opportunity to ques-
tion Brignac about the documents. I overruled Respondent’s
due process objection, but I explained that I understood that
Respondent would need time to review the exhibit, and I also
explained that I would permit Respondent to recall Brignac and

15 Respondent did not ask the Union to produce these documents at
the beginning of trial, or during off the record discussions that the par-
ties and I had before I opened the trial on March 16. (See Tr. 58.)
EMPIRE JANITORIAL SALES & SERVICE, LLC 9
any other General Counsel witness for additional cross exami-
nation based on the materials in General Counsel Exhibit 2. In
that connection, I instructed the General Counsel to notify Bri-
gnac (as well as other witnesses that Respondent might choose
to identify) that he might be recalled for additional testimony.
When the General Counsel asserted that it was not responsible
for contacting Brignac for further testimony, I pointed out that,
intentionally or not, the General Counsel waited until after
Brignac departed before offering General Counsel Exhibit 2
into evidence. Because of that fact, I reiterated that the General
Counsel was responsible for checking on Brignac’s availability
for further testimony. I also admitted General Counsel Exhibit
2 into evidence on a provisional basis, subject to any additional
objections that Respondent might assert after reviewing the
documents in more detail. (Tr. 108–112, 117.)
Later in the trial day, the General Counsel reported that it at-
tempted to reach Brignac by telephone, but could not leave a
message on Brignac’s voicemail (the voicemail system was
full, or otherwise was not functioning). The General Counsel
also reported that it had limited contact with Brignac before
trial—a Board agent served Brignac with a subpoena to testify,
but otherwise the General Counsel had no contact with Brignac
until Brignac appeared to testify on the day of trial. I instructed
the General Counsel to advise me and Respondent if the Gen-
eral Counsel received more information about Brignac’s avail-
ability, and instructed Respondent to continue to review Gen-
eral Counsel Exhibit. 2 to determine if Brignac was needed for
further testimony, and to determine if Respondent might have
stipulations to propose to the General Counsel. (Tr. 117–118.)
After the General Counsel rested its case in chief, Respond-
ent gave its opening statement and presented its case in chief.16
(Tr. 137–153.) Respondent then rested its case without asking
to recall Brignac or any other witness for further questioning
based on the documents in General Counsel Exhibit 2, and
without asking to continue the trial to a later date to allow time
to recall any witnesses who were not available. The General
Counsel did not present a rebuttal case. Accordingly, I closed
the trial. (Tr. 154–155.)
Discussion and Analysis
A. Respondent’s Due Process Objections
In its posttrial brief, Respondent renewed its argument that
the Board’s Rules violate Respondent’s due process rights by
allowing the General Counsel to “withhold documents to the
prejudice of [Respondent].” (See R. Posttrial Br. at 11–13.)
The General Counsel and I, of course, are bound to follow the
Board’s Rules, including Board Rule 102.118, which prohibits
Board employees (including counsel for the General Counsel
and administrative law judges) from producing files or docu-
ments in response to a subpoena without the express written
consent of either the Board or the General Counsel. Such con-
sent has not been granted in this case. Accordingly, consistent

16 Respondent presented some of its evidence earlier in the trial by
completing its direct examination of witnesses that the General Counsel
called for cross examination under Rule 611(c) of the Federal Rules of
Evidence. (See Tr. 20, 128 (regarding witnesses Charles Lusco and
Dayle Hernandez).)
with well-established precedent, I find that Respondent’s due
process objection to the applicable Board Rules lacks merit.
See Finley Hospital, 362 NLRB No. 102, slip op. at 1 fn. 2
(2015) (finding no merit to the respondent’s argument that the
Board Rules violate the Administrative Procedure Act and the
due process clause of the Fifth Amendment to the United States
Constitution because the rules allow the General Counsel to
request trial information from a respondent, but do not impose a
corresponding duty on the General Counsel); Success Village
Apartments, Inc., 347 NLRB 1065, 1065 (2006) (rejecting the
respondent’s argument that it was prejudiced by the General
Counsel’s refusal, based on Board Rule 102.118(b)(1), to pro-
vide a witness’ statement until after the witness testified). Re-
spondent remains free to ask the Board to change its rules. See
Professional Medical Transport, Inc., 346 NLRB 1290, 1297
fn. 6 (2006) (explaining that requests to change Board Rules are
more appropriately addressed to the Board).
Respondent also takes issue, on due process grounds, with
the fact that the General Counsel did not offer or present Gen-
eral Counsel Exhibit 2 as evidence (or otherwise disclose those
documents to Respondent) until after witnesses Hines and Bri-
gnac completed their testimony and were excused. (See R.
Posttrial Br. at 8 fn. 12, 11–13.) As a preliminary thought on
that issue, I note that Respondent’s argument about General
Counsel Exhibit 2 raises the same issues (discussed above)
about the Board’s Rules that must be presented to the Board. In
addition, however, I find that Respondent waived any objec-
tions concerning General Counsel Exhibit 2 and Hines’ and
Brignac’s availability for questioning about that exhibit. In-
deed, although I stated explicitly that I would allow Respondent
to recall any witnesses it needed for additional questions based
on General Counsel Exhibit 2, Respondent did not ask that
either Hines or Brignac be recalled, and also did not ask that the
trial be continued to allow time (if needed) to bring those wit-
nesses back for additional testimony. Instead, Respondent
presented and then rested its case. (See FOF, Section II(J).)
Under those circumstances, Respondent cannot now assert that
it did not have an opportunity to question witnesses about Gen-
eral Counsel Exhibit 2. Accordingly, General Counsel Exhibit
2 will remain in the evidentiary record as a properly admitted
exhibit.
B. Witness Credibility
A credibility determination may rely on a variety of factors,
including the context of the witness’ testimony, the witness’
demeanor, the weight of the respective evidence, established or
admitted facts, inherent probabilities and reasonable inferences
that may be drawn from the record as a whole. Farm Fresh
Co., Target One, LLC, 361 NLRB No. 83, slip op. at 13–14
(2014); see also Roosevelt Memorial Medical Center, 348
NLRB 1016, 1022 (2006) (noting that an administrative law
judge may draw an adverse inference from a party’s failure to
call a witness who may reasonably be assumed to be favorably
disposed to a party, and who could reasonably be expected to
corroborate its version of events, particularly when the witness
is the party’s agent). Credibility findings need not be all-or-
nothing propositions—indeed, nothing is more common in all
kinds of judicial decisions than to believe some, but not all, of a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
witness’ testimony. Farm Fresh Co., Target One, LLC, 361
NLRB No. 83, slip op. at 14. To the extent that I have made
them, my credibility findings are set forth above in the findings
of fact for this decision.
C. Complaint Allegations
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by, since on or about February 5,
2015, failing and refusing to bargain with the Union as the
exclusive collective-bargaining representative of the bargaining
unit. In connection with that allegation, the General Counsel
maintains that: (a) Respondent is a successor employer to GCA
Services; and (b) Respondent has an obligation under the Act to
recognize and bargain with the Union because a majority of
employees in Respondent’s bargaining unit were employed by
GCA Services and therefore are represented by the Union. I
address each of those issues below, as well as Respondent’s
defense that it did not have to bargain with the Union because
the Union did not have majority support in February 2015.
D. Is Respondent a Successor Employer to GCA Services?
1. Applicable legal standard
To determine whether a new employer is the successor em-
ployer to the previous employer, the Board considers the totali-
ty of the circumstances to evaluate whether there is a substan-
tial continuity between the two companies. Fall River Dyeing
& Finishing Corp. v. NLRB, 482 U.S. 27, 43 (1987). Specifi-
cally, the Board considers the following factors:
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 produc-
tion process, produces the same products, and basically has
the same body of customers.
Id.; see also Galion Pointe, LLC, 359 NLRB 699, 715 (2013),
affd. in 361 NLRB No. 135 (2014). In conducting the analysis,
the Board keeps in mind the question whether those employees
who have been retained will understandably view their job
situations as essentially unaltered. Fall River Dyeing & Finish-
ing Corp. v. NLRB, 482 U.S. at 43.
2. Analysis
The evidentiary record establishes that GCA Services and
Respondent are competitors in the same business of providing
custodial, janitorial and maintenance services. There is no
dispute that Respondent and GCA Services are separate entities
with distinct owners, contractual obligations and equipment.
(FOF, sec. II(F).)
However, when the OPSB selected Respondent to begin
providing custodial, janitorial and maintenance services in
OPSB facilities in 2015, Respondent essentially picked up
where GCA Services left off, with no break in service even
though it was the middle of the school year. To accomplish
that quick turnaround, Respondent: hired several custodial em-
ployees who had been working for GCA Services in OPSB
facilities; placed almost all of those employees in the same
facilities where they had worked for GCA Services; and in-
structed those employees to continue carrying out the same
custodial duties (e.g., dusting, cleaning, sweeping, mopping,
and waxing). (FOF, Section II(H).)
Respondent also picked up where GCA Services left off re-
garding maintenance services in OPSB facilities. The eviden-
tiary record shows that GCA Services provided a wide range of
routine maintenance services to the OPSB, including carpentry,
electrical, HVAC, plumbing, painting, and exterior mainte-
nance work, as long as the materials cost was $5000 or less (for
more expensive projects, the OPSB solicited bids, and GCA
Services could compete for the project). (FOF, Section II(D).)
Although Respondent hired new maintenance workers when it
began providing maintenance services to the OPSB, Respond-
ent provided a similar range of maintenance services, with a
focus on essentially the same preventive and corrective mainte-
nance work (i.e., carpentry, electrical, HVAC, plumbing, paint-
ing, and exterior maintenance work that cost $5000 or less).
(FOF, Section II(E) (noting that Respondent could bid to per-
form maintenance work that cost more than $5000), (G)(2),
(H).)
To be sure, Respondent and GCA Services did not provide
identical services to the OPSB. First, there are some minor
differences in the contracts that Respondent and GCA Services
had with the OPSB, such as: Respondent not performing any
landscaping work (GCA Services did); Respondent performing
work in two more OPSB facilities (Benjamin Franklin Elemen-
tary Extension—Lodge and Carrollton Court House) than GCA
Services; and Respondent having slightly different guidelines
than GCA Services to follow when proposing major mainte-
nance work (work that would cost more than $5000). (Com-
pare FOF, Section B, D (describing GCA Services’ agreements
with the OPSB) with FOF, Section E, G (describing Respond-
ent’s agreement with the OPSB).) Second, Respondent brought
in its own supervisors and maintenance employees,17 and pro-
vided its new custodial employees with a different uniform to
wear and some different cleaning products to use. (FOF, Sec-
tion H.) All of those differences, however, were at the margins
of the services that Respondent and GCA Services provided—
more generally, the evidentiary record shows substantial conti-
nuity between GCA Services and Respondent because GCA
Services provided custodial, janitorial and maintenance services
to the OPSB from 2009 through January 2015, and Respondent
essentially took GCA Services’ place when the OPSB selected
Respondent’s proposal to begin providing those services start-
ing in February 2015. Indeed, the GCA Services employees
that Respondent hired understandably viewed their job situa-
tions as essentially unaltered. Respondent, through Hernandez,
met with GCA Services custodians to encourage them to apply
to work for Respondent in the same positions that they held
with GCA Services. The custodians that took Respondent up
on that offer did just that, leaving work on January 31, 2015, as
GCA Services employees, and returning to work on February 2,
2015, to carry out their same custodial duties in OPSB facilities
as Respondent’s employees.

17 Maintenance employees counted for a relatively small portion of
the bargaining unit. Indeed, in February 2015, only 4 employees in the
30–38 employee bargaining unit were maintenance employees (with the
remainder being custodial employees). (FOF, Sec. II(H).)
EMPIRE JANITORIAL SALES & SERVICE, LLC 11
Based on the foregoing analysis, I find that the General
Counsel demonstrated that there is a substantial continuity be-
tween Respondent and GCA Services. Accordingly, I find that
Respondent is the successor employer to GCA Services for
employees who provided custodial, janitorial and maintenance
services in OPSB facilities. See Van Lear Equipment, Inc., 336
NLRB 1059, 1063–1064 (2001) (finding substantial continuity
between the predecessor and successor because although the
successor provided a different supervisor, different pay rates
and benefits, and newer buses to drive than the predecessor, the
employee bus drivers were performing the same work that they
performed for the predecessor); M.S. Management Associates,
Inc., 325 NLRB 1154, 1155 (1998) (finding substantial conti-
nuity where the successor provided the same housekeeping and
HVAC services to the same set of customers and with the same
equipment, with no hiatus in operations, and even though the
successor used a different supervisory staff), enfd. 241 F.3d
207 (2d Cir. 2001).
E. Was Respondent Obligated to Bargain with the Union as a
Successor Employer?
1. Applicable legal standard
The triggering fact for when a successor employer becomes
obligated to bargain is when a majority of employees in the
successor employer’s bargaining unit were employed by the
predecessor (and therefore are represented by the union). Fall
River Dyeing & Finishing Corp. v. NLRB, 482 U.S. at 46. In
some instances, the successor’s obligation to bargain begins
immediately, because the successor immediately begins provid-
ing a full range of operations and a majority of the employees
in the successor’s bargaining unit are represented by the union.
By contrast, when a successor employer gradually builds its
operations and hires employees during an initial startup period,
the Board does not evaluate whether the successor has an obli-
gation to bargain until the successor has hired a substantial and
representative complement of its work force.18 (Id. at 46–47.)
To decide whether a substantial and representative complement
exists in a particular employer transition, the Board considers:
whether the job classifications designated for the operation
were filled or substantially filled; whether the operation was in
normal or substantially normal production; and the size of the
complement on that date and the time expected to elapse before
a substantially larger complement would be at work, as well as
the relative certainty of the employer’s expected expansion. Id.
at 48–49; see also Galion Pointe, LLC, 359 NLRB 699, 716–
717.
2. Analysis
When Respondent began providing janitorial, custodial and
maintenance services to the OPSB on February 2, a majority of
employees in the bargaining unit (21 out of 30 employees) were
former GCA Services employees and therefore represented by

18 If the union asks the successor employer to bargain before the
successor has hired a substantial representative complement of its work
force, the union’s premature request remains in force until the moment
that the successor attains the substantial and representative comple-
ment. Fall River Dyeing & Finishing Corp. v. NLRB, 482 U.S. at 52.
the Union.19 That majority held true when the Union contacted
Respondent on February 5 to request bargaining (22 out of 35
employees were represented by the Union), and also held true
on February 11 when Respondent declined the Union’s request
to bargain (22 out of 38 employees were represented by the
Union). (FOF, sec. II(H).) Since Respondent was already
providing a full range of operations and services to the OPSB at
those times (indeed, Respondent made a point of being ready to
provide services to the OPSB on February 2), I find that Re-
spondent became obligated to bargain with the Union, on re-
quest, on February 2, 2015.
I am not persuaded by Respondent’s argument that it was
gradually building up operations in February 2015, and did not
hire a substantial and representative complement of its work
force until April 2015. Contrary to that argument, Respondent
hired four maintenance employees by February 2, and never
exceeded that number in the relevant time period. As for cus-
todial employees, Respondent had 34 custodians on staff on
February 11—while that number increased slightly to 38 at
times in March and April 2015, that increase in custodial staff-
ing can hardly be said to be substantial, particularly when Re-
spondent hired most of its new custodians to be “floaters” who
were available to fill in when other employees were absent.
And perhaps most important, the evidentiary record shows that
although Respondent was still “staffing up” to a limited degree
in early February, Respondent nonetheless was able to provide
a full range of custodial and maintenance services to the OPSB
on February 2 to avoid having a break in service after taking
over for GCA Services.
Since a majority of employees in Respondent’s bargaining
unit were employed by GCA Services and represented by the
union on February 2, 2015, I find that Respondent had an obli-
gation to bargain with the Union when the Union requested
bargaining on February 5, 2015.
F.. Can Respondent Avoid its Obligation to Bargain with the
Union as a Successor Employer by Asserting that the Union
Lost the Support of a Majority of Employees in the
Bargaining Unit?
1. Applicable legal standard
In UGL-UNICCO Service Co., 357 NLRB 801 (2011), the
Board reinstated the “successor bar” rule. As the Board ex-
plained, the successor bar rule applies where a successor em-

19 I find that the bargaining unit at issue here (all custodial and
maintenance employees employed by Respondent at OPSB facilities in
the New Orleans metropolitan area) is an appropriate bargaining unit.
(See FOF, sec. II(I).) In making this finding, I note that it does not
matter in this context that the bargaining unit at issue here is smaller
than GCA Services’ bargaining unit (which included custodial, mainte-
nance and landscaping employees who worked for GCA Services in
both OPSB and non-OPSB school worksites in the New Orleans metro-
politan area). See M.S. Management Associates, Inc., 325 NLRB at
1155 (“It is well established that the bargaining obligations attendant to
a finding of successorship are not defeated by the mere fact that only a
portion of a former union-represented operation is subject to a sale or
transfer to a new owner, so long as the unit employees in the conveyed
portion constitute a separate appropriate unit and comprise a majority
of the unit under the new operation.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
ployer has abided by its legal obligation to recognize an incum-
bent union, and the “contract bar” is inapplicable. “In such
cases, the union is entitled to a reasonable period of bargaining,
during which no question concerning representation that chal-
lenges its majority status may be raised through a petition for
election raised by employees, by the employer, or by a rival
union; nor, during this period, may the employer unilaterally
withdraw recognition from the union based on a claimed loss of
majority support, whether arising before or during the period.”
Id. at 808. In reinstating the successor bar rule, the Board ex-
plained that the rule is necessary to preserve industrial peace
because successorship places the union in a peculiarly vulnera-
ble position where everything that the union achieved through
collective-bargaining with the predecessor is at risk of being
eliminated, and that risk arises at a time when employees might
be inclined to shun support for the union. Id. at 805–807.
The Board also defined the term “reasonable period of bar-
gaining” for purposes of the successor bar rule. Specifically,
“where the successor employer has expressly adopted existing
terms and conditions of employment as the starting point for
bargaining, without making unilateral changes,” the reasonable
period of bargaining shall be 6 months, measured from the date
of the first bargaining meeting between the union and the suc-
cessor employer.” (Id. at 809.) However, “where the successor
employer recognizes the union, but unilaterally announces and
establishes initial terms and conditions of employment before
proceeding to bargain,” the reasonable period of bargaining
shall be a minimum of 6 months and a maximum of 1 year,
measured from the date of the first bargaining meeting between
the union and the successor employer. (Id.) The party invok-
ing the successor bar rule bears the burden of showing that a
reasonable period of bargaining has not elapsed. (Id.)
2. Analysis
As part of its defense in this case, Respondent argues that it
did not have an obligation to bargain with the Union because
Respondent demonstrated at trial that the Union did not have
the support of a majority of employees in the bargaining unit
when Respondent began providing janitorial, custodial and
maintenance services to the OPSB. In connection with that
defense, Respondent asserted that the Union is only entitled to a
rebuttable presumption that it had the support of a majority of
employees in the bargaining unit, and that Respondent over-
came that presumption based on the testimony of Union state
director Hines about union membership and the number of
employees who paid union dues. 20 (See R. Posttrial Br. at 1–

20 In making this argument, Respondent does not claim that it had
any evidence of a loss of majority support for the Union (e.g., a decerti-
fication petition or some other objective evidence) that led to Respond-
ent’s February 11, 2015 decision to decline the Union’s February 5,
2015 request to bargain. Cf. Levitz Furniture Co. of the Pacific, Inc.,
333 NLRB 717, 725 (2001) (explaining, in the context of an employer
seeking to unilaterally withdraw recognition from an incumbent union,
that an employer may unilaterally withdraw recognition only on a
showing that the union has, in fact, lost majority support). Indeed,
Respondent has consistently maintained that it did not know the GCA
Services employees in question were represented by the Union, and
Respondent did not claim in its February 11 letter that the Union had
4.)
Respondent’s argument that it did not need to bargain with
the Union because the Union lacked majority support fails as a
matter of law. As noted above, in UGL-UNICCO Service Co.,
357 NLRB 801, the Board reinstated the “successor bar” rule,
which entitles a union to a reasonable period of bargaining (at
least 6 months, and up to 1 year, depending on the circumstanc-
es) that is free from challenges to the union’s majority status.
Although the Board explained that successor bar rule applies
when a successor employer has abided by its legal obligation to
recognize an incumbent union, I find that the successor bar also
applies in a case like this one, where Respondent did not abide
by its legal obligation to recognize the Union (although I note
that the “clock” for a reasonable period of bargaining will not
start until Respondent and the Union have their first bargaining
meeting).
The Board’s decision in UGL-UNICCO Service Co. compels
my finding that Respondent may not challenge the Union’s
majority status. Indeed, the Union is in precisely the vulnerable
position that the Board identified in UGL-UNICCO Service
Co., with a successor employer, no contract, and union mem-
bers who might be inclined to shun the Union because they
have a new employer, but has the additional problem of Re-
spondent improperly failing and refusing to recognize and bar-
gain with the Union. See UGL-UNICCO Service Co., 357
NLRB 801, 805–807. Given those circumstances, it is not ap-
propriate to allow Respondent to question the Union’s majority
status, because such a holding would reward Respondent for
unlawfully failing to recognize and bargain with the Union (as
established in Analysis sections D and E above). Accordingly,
I find that the successor bar rule precludes Respondent from
arguing that it does not have to bargain with the Union because
the Union lost majority support.
In sum, I find that Respondent violated Section 8(a)(5) and
(1) of the Act by, since February 5, 2015, failing and refusing
to bargain with the Union as the exclusive collective-bargaining
representative of the bargaining unit. Respondent is the succes-
sor employer to GCA Services, and has an obligation to bargain
with the Union because on February 5, 2015, a majority of
employees in Respondent’s bargaining unit were previously
employed by GCA Services and therefore were represented by
the Union.
CONCLUSIONS OF LAW
1. By, since February 5, 2015, failing and refusing to recog-
nize and bargain with the Union as the exclusive collective-
bargaining representative of the bargaining unit, Respondent
violated Section 8(a)(5) and (1) of the Act.
2. By committing the unfair labor practice stated in Conclu-
sion of Law 1 above, Respondent has engaged in unfair labor

lost majority support (though Respondent did claim that it did not hire a
sufficient number of union-represented employees to trigger a duty to
bargain). (FOF, Sec. II(F), (I).) Thus, Respondent’s argument that the
Union lacked majority support is essentially a post hoc justification for
Respondent’s February 11, 2015 refusal to bargain. I need not reach
the merits of Respondent’s argument here because, as explained below,
Respondent’s argument about whether the Union had majority support
fails as a matter of law.
EMPIRE JANITORIAL SALES & SERVICE, LLC 13
practices affecting commerce within the meaning of Section
8(a)(5) and (1) and Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has violated Section
8(a)(5) and (1) of the Act by failing and refusing to recognize
and bargain with the Union, I shall order it to cease and desist
therefrom and take certain affirmative action designed to effec-
tuate the policies of the Act. I shall order that Respondent rec-
ognize and, on request, bargain with the Union as the exclusive
collective-bargaining representative of employees in the bar-
gaining unit and, if an understanding is reached, embody that
understanding in a signed agreement.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended21
ORDER
Respondent, Empire Janitorial Sales & Service, LLC in Me-
tairie, Louisiana, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representative of
the bargaining unit.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed 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 with the United La-
bor Unions, Local 100, as the exclusive collective-bargaining
representative of the bargaining unit regarding wages, hours,
and other terms and conditions of employment, and if an under-
standing is reached, embody that understanding in a signed
agreement.
(b) Within 14 days after service by the Region, post at its
facility in Metairie, Louisiana, copies of the attached notice
marked “Appendix.”22 Copies of the notice, on forms provided
by the Regional Director for Region 15, after being signed by
Respondent’s authorized representative, shall be posted by
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as
by email, posting on an intranet or an internet site, and/or other
electronic means, if Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by Respondent to ensure that the notices are not altered,

21 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.
22 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.”
defaced, or covered by any other material. In the event that,
during the pendency of these proceedings, Respondent has gone
out of business or closed the facility involved in these proceed-
ings, Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by Respondent at any time since February 5,
2015.
(c) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that
Respondent has taken to comply.
Dated, Washington, D.C. May 16, 2016
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 fail and refuse to recognize and bargain with
the United Labor Unions, Local 100 as the exclusive collective-
bargaining representative of the bargaining unit.
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 with the United
Labor Unions, Local 100, as the exclusive collective-bargaining
representative of the bargaining unit regarding wages, hours
and other terms and conditions of employment, and if an under-
standing is reached, embody that understanding in a signed
agreement.
EMPIRE JANITORIAL SALES & SERVICE, LLC
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
The Administrative Law Judge’s decision can be found at
www.nlrb.gov/case/15–CA–146938 or by using the QR code be-
low. 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.