Apparatus Services, Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1989

296 N.L.R.B. 581 (N.L.R.B. 1989)

APPARATUS SERVICE
Apparatus Service, Inc. and International Union of
Electrical Workers, Local 1126 . Case 17-CA-
14029
September 18, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On June 30 , 1989, Administrative Law Judge
Karl H . Buschmann issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Apparatus Service, Inc., Tulsa, Oklaho-
ma, its officers, agents, successors, and assigns,
shall take the action set forth in the Order as modi-
fied.
1. Substitute the following for paragraph 1(c).
"(c) Refusing to bargain collectively with the
Union as the collective bargaining representative of
the employees in the following appropriate unit:
"All production and maintenance employees,
of the Employer at its Tulsa, Oklahoma Appa-
ratus Service Shop, including truckdrivers,
shipping and receiving, stockroom attendants,
and all other employees, engaged in field serv-
ice and equipment installation, excluded: office
clerical employees, professional employees,
technical employees, salesmen, guards and su-
pervisors as defined in the Act."
2. Substitute the attached notice for that of the
administrative law judge.
' The Respondent has excepted to some of the judge 's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance 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 We shall modify the judge's recommended Order and substitute a
notice so as to include a specific description of the appropriate bargaining
unit.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
581
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT coercively question or interrogate
applicants for employment concerning their union
affiliation.
WE WILL NOT maintain a rule or policy that pro-
hibits our employees from discussing their salaries.
WE WILL NOT refuse to bargain collectively in
good faith with the Union as the collective-bar-
gaining representative of our employees in the fol-
lowing appropriate unit.
All production and maintenance employees, of
the Employer at its Tulsa, Oklahoma Appara-
tus Service Shop, including truckdrivers, ship-
ping and receiving, stockroom attendants, and
all other employees, engaged in field service
and equipment installation, excluded: office
clerical employees, professional employees,
technical employees, salesmen , guards and su-
pervisors as defined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act.
WE WILL rescind any rule that prohibits our em-
ployees from discussing their salaries.
WE WILL, on request, bargain with the Union as
the exclusive bargaining representative of our unit
employees.
APPARATUS SERVICE, INC.
Stephen E. Wamser, Esq., for the General Counsel.
Stephen L. Andrew, Esq. (McCormick, Andrew & Clark),
of Tulsa, Oklahoma, for the Respondent.
Jerry W. Smith , of Garland, Texas, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN , Administrative Law Judge.
The case was tried in Tulsa, Oklahoma, on November
30, 1988 . The charge was filed by the Union on Septem-
ber 14, 1988, and the complaint was issued on October
28, 1988 . The issues are whether the Company violated
Section 8(a)(1) and (5) of the National Labor Relations
Act (the Act). The Respondent filed its answer on No-
296 NLRB No. 82
582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
vember 9, 1988, in which it denied the commission of
any unfair labor practices.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
The Company, Apparatus Service, Inc., is an Oklaho-
ma corporation located at 5220 S. 100th East Avenue,
Tulsa, Oklahoma, where it is engaged in the repair and
remanufacture of electrical and mechanical equipment.
With purchases of goods and materials valued in excess
of $50,000 from points outside the State it is admittedly
engaged in commerce within the meaning of the Section
2(2), (6), and (7) of the Act.
The Union, International Union of Electrical Workers
Local 1126, is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
Prior to March 28, 1988, the General Electric Compa-
ny operated a business at the Respondent's location
known as General Electric Apparatus Service Shop (Tr.
12). On March 28, 1988, the Respondent, Apparatus
Service, Inc., purchased from General Electric the assets
including the "[l]and, building and all of the furniture,
equipment, inventory" and continued the business at the
same location (Tr. 11). The Respondent also kept all of
General Electric's employees except the manager Danny
Davis (Tr. 12). These employees included all six produc-
tion and maintenance employees (E. Belcher, Rick Bled-
saw, Brady Crawford, Carl Stephens, Napoleon Lewis,
and Henry Thompson) and the shop superintendent, Phil
Sasser (Tr. 13). Former General Electric employee Law-
rence Fuller became president and general manager of
the Company (Tr. 9, 38).
Prior to the change in ownership on March 28, 1988,
the employees were represented by the International
Union of Electrical Workers Local 1126 in the following
unit (G.C. Exh. 7):
All production and maintenance employees, of
the Employer at its Tulsa, Oklahoma Apparatus
Service Shop, including truckdrivers, shipping and
receiving, stockroom attendants, and all other em-
ployees, engaged in field service and equipment in-
stallation, excluded: office clerical employees, sales-
men, guards and supervisors as defined in the Act.
The most recent collective-bargaining agreement cov-
ered the period of July 1, 1985, until June 26, 1988 (G.C.
Exh. 8).
On March 15 , 1988, a meeting was held between man-
agement and the employees. That meeting, held in the
lunchroom, was conducted in two stages: first, General
Electric management informed the employees of the clo-
sure of the operation and the employees' benefits. The
second part of the meeting was conducted by the Re-
spondent's management team, Fuller and Al Martin.
Edward Gaskill, the Union's International representative,
was also present at the meeting and participated in the
discussions. Fuller explained initially the nature of Appa-
ratus Service. Martin then read certain provisions from
an employee handbook to the assembled employees and
explained that these were the conditions of employment
as well as the employee benefits. In response to Gaskill's
question whether these provisions were proposals,
Martin responded: "[T]his was what our plan was on
how we intended to operate the business" (Tr. 18); he
also said: "I guess then they're proposals" (Tr. 80). Gas-
kill orally requested a copy of the handbook as soon as it
was available. By letter of March 18, 1988, Gaskill wrote
Fuller (G.C. Exh. 9):
As discussed at our meeting on March 15, 1988 in
Tulsa, please forward your Contract proposals to
me.
On March 24, prior to the transfer of ownership, the
Respondent distributed to the employees the handbook
in its finalized version (G.C. Exh. 2, Tr. 14). The hand-
book contains a provision requiring the employees to
keep their salary confidential.
Gaskill contacted Fuller again by calling him on
March 28 , stating, "[W]e continued to represent the em-
ployees, and that I would like a date when we could sit
down to negotiate" (Tr. 84). Fuller replied that he
needed to get out on the road to contact customers be-
cause they did not have sufficient work (Tr. 84). When
Gaskill inquired how Fuller intended to operate in the
interim , Fuller replied, "General Electric owned the
business yesterday and we own it today, and there's no
interim" (Tr. 34). Gaskill insisted that he wanted some-
thing in writing, Fuller replied that he needed to get out,
visit customers, and attract work for the Company and
the employees.
On April 14 and several dates thereafter, Fuller inter-
viewed and hired several employees. During the inter-
view discussions, Fuller asked some of the prospective
candidates whether they were represented by a union.
By letter of May 13, 1988, the Union requested the
Respondent to open negotiations, stating inter alia as fol-
lows (G.C. Exh. 4):
IUE Local 1126 respectfully request the opening
of negotiations for the Local contract begin on
Wednesday, June 1, 1988 and be finalized by mid-
night, Thursday, June 30, 1988.
The letter also contained the names of the employees
who were selected for the negotiation committee.
On May 25, 1988, Gaskill presented Fuller with a peti-
tion for representation signed by all nine of Respondent's
employees (G.C. Exh. 3). Gaskill told Fuller that the
Union "had a continuing right to represent the employ-
ees, and that the petition, authorization petition, should
clear up any doubts that he had about [the Union's] rep-
resentation" (Tr. 92).
Fuller replied by letter of May 28, 1988, stating as fol-
lows (G.C. Exh. 5):
This will acknowledge receipt of your letter
dated May 13, 1988 wherein you request that this
Company participate in collective bargaining nego-
tiations with the Union.
APPARATUS SERVICE
After careful consideration , the purpose of this
letter is to advise you that we have a good faith
belief that your Union does not represent a majority
of the employees which might be included in a bar-
gaining unit which might be established by the Na-
tional Labor Relations Board . Under these circum-
stances, we cannot in good faith and without violat-
ing the law enter into collective negotiations.
The General Counsel argues that the Respondent is a
successor employer who had no basis to question the
Union 's majority status and who refused and failed to
bargain collectively with the Union in violation of the
Act. The Respondent also violated the Act, according to
the General Counsel , by prohibiting its employees from
discussing their salaries and by questioning two job ap-
plicants about their union membership.
The Respondent submits that it was not obligated to
bargain with the Union because it failed to make a
proper demand to bargain prior to the issuance of the
handbook and because the Respondent had a good-faith
doubt about the Union 's majority status . The Respondent
also asserts that its policy on confidential salary informa-
tion was not effectively enforced.
Analysis
Initially, the record is clear that the Respondent, Ap-
paratus Service, Inc., is a direct successor employer of
General Electric Company's apparatus service shop.
There was no interim period , but as the Respondent's
chief executive testified , General Electric owned the op-
eration yesterday and the Respondent owned it today, ef-
fective March 28, 1988 , by an acquisition of the assets,
i.e., real estate, equipment , and inventory (Tr. 11, 34).
The business continued uninterrupted at the same loca-
tion under a similar name with the same employees, in-
cluding the unit employees and the shop superintendent.
A mere change in ownership is not considered such an
unusual circumstance as to relieve the successor employ-
er from his obligation to bargain with elected representa-
tives of the employees . NLRB v. Burns Security Services,
406 U.S. 272 (1972). The Respondent does not dispute its
obligation to bargain under such circumstances, but
states that it had a good-faith doubt about the Union's
majority status because certain employees had expressed
their reservation.
Whether a successor employer may question a union's
majority in good faith must be resolved by considering
the totality of all the circumstances in a particular case.
"But among such circumstances , two factors would seem
to be essential prerequisites . . . . There must , first of all,
have been some reasonable grounds for believing that the
union had lost its majority status since its certification.
And, secondly, the majority issue must not have been
raised by the employer in a context of illegal anti-union
activities ." Celanese Corp., 95 NLRB 664 (1951). The
record here shows that the employer had no reasonable
basis for believing that the Union's majority had eroded.
First of all, the Union 's representative , Gaskill , had indi-
cated to Respondent 's officials since the March 15 meet-
ing that he was acting on behalf of the employees.
Indeed the Union 's May 13 letter, which the Respondent
583
acknowledged contained a request to bargain , listed five
names for the negotiating committee , all of whom were
members of the bargaining unit of the prior employer
(G.C. Exh. 4; R. Br. 7).
Moreover , on May 25, the Respondent received from
the Union a statement from its nine employees authoriz-
ing it to represent the employees (G.C. Exh. 3, Tr. 28).
Accordingly , the record shows that there was an absence
of objective or reasonable factors for the Company's
belief; to the contrary , there were affirmative indicia that
showed that the Union continued to represent the em-
ployees . Nevertheless , the Respondent claims that be-
tween May 13 and 28, the Company had such a good-
faith belief, because two of the holdover employees and
the four new employees had indicated to Fuller that they
did not want to be represented by the Union.
Fuller testified that he learned from his shop superin-
tendent that employees Napoleon Lewis and Henry
Thompson felt that they did not need a Union (Tr. 30).
Yet both employees testified that they never told Sasser,
the superintendent , or anyone else, that they no longer
wanted to be represented by the Union (Tr. 48 , 65, 70).
Moreover, the employees' conduct, having signed union
cards, as well as the statement agreeing to be represented
by the Union and being designated members of the nego-
ti...ion team , fails to support Fuller's good -faith belief
and renders it implausible and incredible . With respect to
the four new employees, Duane McLane, Larry Griffith,
Larry Woolsey, and Forrest Adair, it was Fuller's testi-
mony that they had revealed to him during the employ-
ment interview that they preferred not to be represented
by any union (Tr. 30).
The record shows that these disclosures came about as
a result of Fuller's questioning the candidates during
their job interviews . For example , Fuller admitted asking
McLane on April 14, the day he was hired, whether he
was represented by a union in his old job. McLane
denied being represented . On May 17, Fuller questioned
Adair during his job interview whether he was repre-
sented by a union to which Adair said , no (Tr. 21-22, 26,
39). Fuller did not threaten the employees , but consider-
ing the seriousness of a job interview , it is clear that the
Respondent 's conduct was coercive . NLRB v. Solboro
Knitting Mills, 572 F . 2d 936 (2d Cir . 1978), cert . denied
439 U.S. 864 ( 1978). It is clear, therefore , that the Re-
spondent not only lacked an objective basis for its belief
that the Union lacked a majority, but also that the issue
was raised in a context of illegal antiunion activities.
Burns Security Services, supra . For it is also significant
that Fuller's interrogation was not conducted merely in
the context of the employees ' questions, but on Respond-
ent's own initiative . He also considered it significant to
know of all new employees , whether they were repre-
sented by a union in their prior jobs . I therefore con-
clude that the Respondent not only violated Section
8(a)(1) of the Act by interfering with the employees'
Section 7 rights, but also Section 8 (a)(5) and (1) of the
Act for its failure to bargain with the Union after repeat-
ed demands to do so.
On March 24, 1988 , prior to the official change in
ownership , the Respondent's officials distributed the em-
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ployee handbook to the six employees . The handbook,
which continues in force as the Respondent 's policy, re-
quires the employees to keep their salary confidential
under the following proviso . (G.C. Exh. 2, p. 8):
Salaries-Confidential
Your salary is determined individually, is confiden-
tial, and should not be discussed with any one other
than your manager . Our wage and salary program
is designed to recognize individual performance
while ensuring conformance to applicable laws.
Maintaining and enforcing a policy prohibiting em-
ployees from discussing salary information restrains em-
ployees in the exercise of their rights to engage in con-
certed activities in violation of Section 8(a)(1) of the Act
irrespective of whether such a policy is actually en-
forced. Electronic Data Systems, 278 NLRB 125, 130
(1986).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Respondent was a successor to the prior em-
ployer which had a collective-bargaining relationship
with the Union.
4. The Respondent , by questioning employees about
their union membership , interfered with their Section 7
rights in violation of Section 8(a)(1) of the Act.
5. The Respondent did not have a good-faith doubt
about the Union's majority status, and it violated Section
8(a)(5) and ( 1) of the Act when it refused to bargain col-
lectively with the Union on behalf of the employees in
the appropriate unit.
6. The Respondent , by maintaining a policy prohibit-
ing employees from discussing their salaries, interfered
with the employees' Section 7 rights in violation of Sec-
tion 8(a)(1) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices , I recommend that it cease and
desist therefrom and take certain affirmative action to
remedy the unfair labor practices and to effectuate the
policies of the Act. Having found that the Respondent
refused to bargain with the Union and having found that
the Respondent is a successor employer to the prior
company that had a bargaining obligation with the
Union, and having further found that the Respondent did
not have a good-faith doubt about the Union's majority
status among the unit employees , I shall order the Re-
spondent to bargain in good faith with the Union as the
exclusive bargaining representative of the employees in
the following appropriate unit.
All production and maintenance employees, of
the Employer at its Tulsa, Oklahoma Apparatus
Service Shop, including the truckdrivers, shipping
and receiving , stockroom attendants , and all other
employees, engaged in field service and equipment
installation , excluded : office clerical employees, pro-
fessional employees , technical employees , salesmen,
guards and supervisors as defined in the Act.
Having further found that the Respondent maintained
a policy prohibiting its employees to discuss their sala-
ries, which has a tendency to interfere with the employ-
ees' rights under Section 7 of the Act, I recommend that
the Respondent rescind or revoke its policy.
On these findings of fact and conclusions of law and
on the entire record , I make the following recommend-
ed'
ORDER
The Respondent, Apparatus Service, Inc., Tulsa, Okla-
homa, its officers , agents, successors , and assigns, shall
1. Cease and desist from
(a) Coercively questioning or interrogating its employ-
ees or job applicants about their union affiliation.
(b) Maintaining any rule or policy that prohibits its
employees from discussing their salaries , or other forms
of compensation.
(c) Refusing to bargain collectively with the Union as
the collective-bargaining representative of the unit em-
ployees.
(d) 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) Rescind or revoke its rule or policy that prohibits
its employees from discussing their salaries or other
forms of compensation.
(b) Recognize and, on request , bargain collectively
with the Union as the exclusive bargaining representative
of the employees in the above-stated appropriate unit.
(c) Post at its Tulsa, Oklahoma facility copies of the
attached notice marked "Appendix ."2 Copies of the
notice, on forms provided by the Regional Director for
Region 17, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to the above -described members and em-
ployees 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.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
' If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
2 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "