Atlantic Technical Services Corp.

National Labor Relations Board - Board Decisions

Mar 5, 1973

202 N.L.R.B. 169 (N.L.R.B. 1973)

ATLANTIC TECHNICAL SERVICES CORPORATION 169
Atlantic Technical Services Corporation and Interna-
tional Association of Machinists and Aerospace
Workers , AFL-CIO. Case 12-CA-5158
March 5, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On July 17, 1972, Administrative Law Judge'
Morton D. Friedman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General
Counsel and the Charging Party filed cross-excep-
tions, together with briefs in support thereof. Re-
spondent and the Charging Party also filed answering
briefs.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs, and finds merit in certain of Respondent's
exceptions. Accordingly, the Board has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and hereby adopts his
recommended Order only to the extent consistent
herewith.
The complaint alleges and the General Counsel
contends that Respondent is a successor employer to
Trans World Airlines (hereinafter, TWA), and as
such violated Section 8(a)(5) and (1) of the Act by
refusing to recognize and bargain with the Union as
the exclusive bargaining representative of all its
employees who are engaged in the mail and distribu-
tion services at Kennedy Space Center (hereinafter,
KSC), and by unilaterally changing the terms and
conditions of those employees. Respondent contends
that it is not a successor employer, that the unit
requested by the Union was not appropriate, and
that at all relevant times it had a good-faith doubt as
to the Union's majority status.
The record shows that from 1945 to April 1, 1971,
when Respondent took over part of the operations at
KSC, TWA had negotiated successive contracts with
the Union in a companywide unit of mechanics and
related classifications covering approximately 14,000
employees. Upon receiving the contract to perform
the basic installation support services at KSC, in
1964, TWA voluntarily extended recognition to the
Union as exclusive representative of the approxi-
mately 1,100 employees it had working there, and
further agreed to extend the basic companywide
contract to cover those employees. Later that same
year, TWA recognized the Union as exclusive
representative of the approximately 41 employees it
had performing mail and distribution functions at
the KSC facility, and once again extended the basic
agreement to cover them. The most recent contract
between TWA and the Union, effective January 1970
to December 31, 1971, was a nationwide agreement
under the Railway Labor Act covering a company-
wide unit of TWA employees.
On October 9, 1970, the mail and distribution
services contract at KSC was reopened for bidding,
and on February 23, 1971,3 Respondent, a newly
formed corporation set up specifically for the
purpose of performing such small technical support
contracts, was notified that it had been awarded the
contract. Thereafter, Respondent arranged preem-
ployment interviews for the incumbent employees
and offered jobs to all who were interested, but at the
same time made it clear that Respondent would not
be able to continue all of the fringe benefits provided
by TWA.
On at least two separate occasions prior to
takeover, but subsequent to these prehire interviews,
the Union requested Respondent to recognize it and
make no changes in the terms and conditions of
employment without first negotiating with the
Union. Respondent, however, refused to recognize
and bargain with the Union claiming, inter alia, that
its work force was incomplete and it did not know
what its work complement would be on April 1; that
the unit was inappropriate; and that, at all times, it
had reason to doubt the Union's continued majority
status.
On April 1, Respondent took over operation of the
mail and distribution services at KSC, without
significant change, utilizing 27 of the 41 former
employees who had performed this work for TWA.
Upon taking over, Respondent instituted a fringe
benefit package for its employees, which, in several
substantial respects, was less beneficial to the
employees than that previously provided by TWA.
On April 9, Respondent held a meeting of the 41
mail and distribution employees and, among other
things, conducted a secret ballot poll as to whether
they desired to have the Union represent them. The
results of that poll were 21 in favor of representation
and 20 opposed. However, even after Respondent
became apprised of the results, it still claimed that
I The title of "Trial Examiner" was changed to "Administrative Law exceptions , and briefs adequately present the issues and positions of the
Judge" effective August 19, 1972 parties
2 Respondent's request for oral argument is hereby denied as the record , 9 Hereinafter , all dates refer to 1971 , unless otherwise indicated
202 NLRB No. 13
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the true desires of the employees regarding union
representation were in doubt,4 and conducted anoth-
er secret ballot poll on April 16. A majority of those
voting in this poll voted against union representation.
The Administrative Law Judge found that Respon-
dent performs the same work, at the same location,
for the same contractor as TWA performed, and that
a clear majority (27 of 41) of its work complement
had previously performed the same work for TWA.
He therefore concluded that Respondent was a
successor employer to TWA. Further finding the
requested mail and distribution unit to be appropri-
ate, the Administrative Law Judge concluded that
the Union continued as the exclusive bargaining
representative of the employees in that unit. Based
on those findings, the Judge concluded that Respon-
dent violated Section 8(a)(5) and (1) of the Act in
refusing to recognize and bargain with the Union
and by unilaterally instituting changes in the terms
and conditions of employment since April l.5 We do
not agree with the Administrative Law Judge's
finding of successorship, nor with his conclusions
based on those findings.
1. While we agree with the Administrative Law
Judge that the diminution in the scope of a unit
"does not operate in any relevant fashion to preclude
the lesser unit from being appropriate," we believe
that it is a relevant factor to be considered, among
others, in determining whether or not a new
employer is a successor. And where, as here, in
addition to that factor, the size and organizational
structure of the employer succeeding to the smaller
unit is in a number of respects materially different,
there may well be a sufficiently substantial change in
the nature of the employing industry to defeat any
finding of successorship. We find that to have been
the situation here.
Respondent's assumption of the mail and distribu-
tion services portion of the former general installa-
tion support services contract which TWA had at
KSC amounts to only a small fraction of the work
performed by the companywide unit recognized by
TWA. The entire complement of employees hired by
Respondent, 41, constituted less than 4 percent of the
total number of 1,100, formerly employed by TWA
at KSC and, of those 41, only 27 came from the
former TWA Unit. Thus, the former TWA Unit
became doubly diluted. Moreover, TWA was a large
company engaged primarily in transportation and
related fields, was regulated under the Railway
4 Respondent predicates its good-faith doubt after this poll on the basis
of purported comments , made by unnamed employees immediately after
the results of the poll were made known , to the effect that if they had known
the vote would be so close, they would not have voted for the Union.
Respondent 's agent who conducted the poll also testified that after the poll
had been taken , other observers had told him he had gone too fast and that
the employees were confused as to what they were voting for
Labor Act, and had contracts throughout the
country. In contrast, Respondent is a small organiza-
tion, dust recently organized for the purpose of
performing small technical support service contracts,
whose only contract, as of the time of the hearing in
this case, was that involved herein. There is obviously
a substantial difference between the employer-em-
ployee relationship in a large corporation and that
characteristic of a small operation such as Respon-
dent's.6
Lastly, the validity of the presumption of the
continuing majority status of the Union is especially
put in question where, as here, the portion of the
former unit taken over by the new employer was
originally accreted to the larger unit, and there is no
showing that a separate and independent majority
status in the smaller unit was established at the time
of the accretion.
For the foregoing reasons, under the peculiar
circumstances here presented, we conclude that
Respondent was not a successor employer to TWA.
As Respondent was not a "successor employer," it
was not bound by the former contractor's obligation
to bargain with the Union.7 We therefore conclude
that Respondent did not violate Section 8(a)(5) and
(1) by bypassing and failing to bargain with the
Union prior to the takeover and by unilaterally
setting initial terms and conditions of employment.
Accordingly, we shall dismiss those allegations of the
complaint.
2. After the takeover period, the Union continued
to request recognition and bargaining with Respon-
dent. Respondent at all times thereafter claimed it
had a good-faith doubt of the Union's majority
status. We agree with the Administrative Law Judge
that Respondent was obligated to bargain with the
Union, in an appropriate unit of its employees, after
April 9. As previously noted, on that date Respon-
dent took it upon itself to determine the Union's
majority status by means of a poll. The results of that
poll demonstrated that a majority of the unit
employees were in favor of union representation.
Respondent then predicated its claim of doubt on
alleged employee confusion as to the objectives of
the vote. We find no merit in this claim.
We have held that where an employer undertakes
to determine a union's majority status by means of a
poll, under conditions of its own choosing, it cannot
5 The Administrative Law Judge further found that Respondent did not
have a reasonable basis for a good - faith doubt prior to April 9, and even if it
in fact had such a doubt , the results of Respondent's own poll conducted on
that date should have dispelled any remaining doubt thereafter
6 N L R B v Alamo While Truck Service. Inc, 273 F 2d 238 (C A 5,
1959)
7 Alabama Precast Products Co, Inc. 163 N LRB 993
ATLANTIC TECHNICAL SERVICES CORPORATION
thereafter disclaim the results because it finds them
distasteful.8 Accordingly, we find that as of April 9,
Respondent had no legal basis to question the
Union's majority status, but that its obligation to
recognize and bargain with the Union designated by
the majority of its employees matured as the result of
its own poll. By refusing to recognize and bargain
with the Union thereafter, Respondent violated
Section 8(a)(5) and (1) of the Act.9
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Atlantic Technical Services Corporation, Cape Ken-
nedy, Florida, its officers, agents, successors, and
assigns, shall take the action as set forth in the
Administrative Law Judge's recommended Order as
herein modified:
1. Delete paragraph 1(b) and 2(b) of the Adminis-
trative Law Judge's recommended Order.
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
8 Sullivan Electric Co, 199 NLRB No 97, and cases cited therein
9 Member Kennedy agrees with his colleagues that Respondent was not
a successor to TWA and that Respondent did not violate Sec 8(a)(5) of the
Act by unilaterally setting initial terms and conditions of employment He
would not order Respondent to bargain since "secret elections are generally
the most satisfactory-indeed the preferred-method of ascertaining
whether a union has majority support " N L R B v G,ssel Packing Co, 395
U S 575, 602 (1969) Bargaining orders are not appropriate in his view
absent a finding that respondent committed unfair labor practices the effect
of which could not be erased by traditional remedies See his dissent in
Sullivan Electric Co, supra Here, the record will not support a finding that
the poll of employees violated Sec 8(a)(1) of the Act and there is no other
finding of independent unfair labor practices
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT refuse to recognize and bargain
collectively with International Association of
Machinists and Aerospace Workers, AFL-CIO,
as the exclusive bargaining representative of the
employees in the following appropriate unit:
All mail and distribution service employees,
at our facility at Kennedy Space Center,
Cape Kennedy, Florida, including senior
distribution clerks, distribution clerks and
171
messenger drivers, but excluding office
clerical employees and supervisors as de-
fined in the Act.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce the employees in
the exercise of their rights to self-organization, to
form , join , or assist unions, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection , or to refrain from such activities.
WE WILL, upon request, bargain collectively
with International Association of Machinists and
Aerospace Workers, AFL-CIO, as the exclusive
bargaining representative of all employees in the
appropriate unit as found above.
ATLANTIC TECHNICAL
SERVICES CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Federal Office Building, Room 706,
500 Zack Street, P.O. Box 3322, Tampa, Florida
33602, Telephone 813-228-7711, Ext. 27.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN , Trial Examiner : Upon a charge
filed on April 15, 1971, by International Association of
Machinists and Aerospace Workers, AFL-CIO, herein
called the IAM or the Union, the Regional Director for
Region 12 of the National Labor Relations Board , herein
called the Board , issued a complaint on November 19,
1971, on behalf of the General Counsel of the Board,
against Atlantic Technical Services Corporation , ' herein
called the Respondent or the Company , alleging violations
of Section 8(a)(5) and ( 1) of the National Labor Relations
Act, as amended (29 U.S.C. Sec. 151, et seq. ), herein called
i The name of the Respondent appears as corrected at the hearing
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act. In its duly filed answer the Respondent, while
admitting certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to notice, a hearing in this case was held before
me at Cocoa Beach, Florida, on February 1 and 2, 1972.
All parties were represented and were afforded full
opportunity to be heard, to introduce relevant evidence, to
present oral argument, and to file briefs. Oral argument
was waived and briefs were filed by all parties. Upon
consideration of the entire record herein,2 and upon my
observation of each of the witnesses as they appeared
before me, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Florida corporation, since on or
about April 1, 1971, has been engaged in the business of
providing mail and distribution support services at the
John F. Kennedy Space Center located at Cape Kennedy,
Florida, pursuant to a contract with National Aeronautics
Space Administration (herein called NASA). During the
12-month period beginning April 1, 1971, Respondent has
furnished services for NASA valued in excess of $450,000
which services exert a substantial impact on the national
defense. I find that the Respondent is an employer engaged
in commerce or in industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction-Background and Issues
From March 9, 1964, through March 31, 1971, Trans-
World Airlines, herein called TWA, pursuant to a contract
with NASA, performed the mail and distribution support
services at Kennedy Space Center, herein sometimes called
KSC, a utility of NASA. The 41 TWA nonsupervisory
mailroom employees were covered by successive collective-
bargaining contracts between TWA and the Union, the last
of which was entered into January 28, 1970, with
expiration date of December 31, 1971.
On October 9, 1970, NASA, by written invitation,
requested the Respondent, a newly formed company, and
others, to submit proposals for the mail and distribution
support services. The Respondent, in response, submitted a
bid on November 16, 1970, and was awarded the contract
for the services on February 23, 1971, with operations at
KSC to begin on April 1, 1971.
Thereafter, the Respondent began recruiting its employ-
ees for the KSC work from among the employees of TWA
2 The Respondent's motion to correct the transcript is granted except as
to Item 7 The Charging Party's motion to correct the transcript is also
granted
3 The complaint also alleged that pursuant to the Board's decision in the
case of W J Burns International Detective Agency, 182 NLRB 348, the
Respondent was obligated as successor to TWA to adopt and observe the
collective-bargaining agreement between the Union and TWA However,
at KSC and, after hiring 27 of the 41 TWA employees,
began its operation on April 1, 1971, taking over where
TWA left off, performing the same work with substantially
the same employees.
Beginning about March 12, 1971, the Union, in writing,
demanded recognition from the Respondent notifying
Respondent that it represented the TWA employees whom
Respondent was about to take over. The Respondent was
furnished a copy of the TWA-IAM collective-bargaining
agreement setting forth the working terms and conditions
of these employees. By letter dated March 22, 1971, the
Respondent denied the Union's request and also denied
later requests by the Union.
Upon the hiring of the former TWA employees and the
beginning of its operations under the NASA contract,
Respondent changed many of the terms and conditions of
employment of the employees without consultation with
the Union. Thereupon the Union filed the charge which
resulted in the issuance of the complaint in this proceeding.
The complaint alleges, in substance, that the Respondent,
as successor-employer to TWA, has failed and refused to
bargain with the Union, the bargaining representative of
Respondent's employees engaged in the mail and distribu-
tion services at KSC and that the Respondent has
unilaterally changed the terms of employment and working
conditions of said employees in violation of Section 8(a)(1)
and (5) of the Act.
In its answer, Respondent denies that it is a "successor
employer" and alleges affirmatively that the unit requested
by the Union is inappropriate in any event and that,
moreover, at all relevant times the Respondent possessed a
good-faith doubt as to the Union's majority status among
the Respondent's employees.3
Thus, the questions presented by the, pleadings and the
contentions of the parties are:
1. Is the Respondent a successor-employer to TWA
and therefore obligated to bargain with the Union?
2. If the Respondent is a successor-employer did it
violate the Act by making changes in the terms of
employment and working conditions of its employees?
Subsidiary issues are.
1. Is the Union the bargaining representative of the
Respondent's employees in a unit appropriate for the
purposes of collective-bargaining?
2 Did the Respondent entertain a good-faith doubt as
to the Union's majority status if Respondent was otherwise
obligated to bargain with the Union?
B. The Events Before April 1, 1971
The collective-bargaining agreement between TWA and
the Union covered approximately 14,000 employees of
TWA. The Union was granted voluntary recognition by
TWA for the employees of TWA who performed the mail
and distribution support services work at Kennedy Space
this portion of the complaint was withdrawn subsequent to the hearing in
the light of the Supreme Court's decision in N L R B v Burns International
Security Services. 406 U S 272, which holds that a successor-employer
is not required to adopt and observe the substantive terms of a
collective-bargaining agreement entered into between a union and a
predecessor employer
ATLANTIC TECHNICAL SERVICES CORPORATION
Center by letter dated September 1, 1964. There was no
certification by either the National Mediation Board, to
which the labor relations matters of TWA are referrable, or
the National Labor Relations Board.
The NASA request for proposal contained, among other
things, a statement to the effect that most of TWA's
employees engaged at Kennedy Space Center in mail and
distribution work were represented by the Union. Addi-
tionally, during the so-called job walk, when prospective
bidders, including Respondent, were conducted about the
work area to be familiarized with the mail and distribution
system, prospective bidders were informed they could
obtain copies of the IAM-TWA contract from the IAM
local. Thereafter, George Evans, Respondent's secretary,
asked for and received a copy of the contract from the
Union. Thus, before it even presented its bid, Respondent
was well aware of the fact that the employees of TWA
engaged in mail and distribution work at the Kennedy
Space Center were represented by the Union.
However, while Respondent was preparing its proposal
to NASA, Evans consulted with Alfred Nelson, manager of
mail and distribution services for TWA at Kennedy Space
Center. According-to Evans, Nelson told him on a number
of occasions that in Nelson's opinion the employees were
dissatisfied with the Union's representation and did not
want to retain their union membership. The testimony of
Nelson, however, in total, indicates that perhaps more than
one such conversation took place.
Additionally, Evans testified that during the recruitment
period of Respondent's employees some time in March
1971, after Respondent had been granted the mail and
distribution contract, one of the employees, interviewed by
the name of Ron McCartney, told Evans that McCartney
in no way wanted to be represented by a union. He also
told Evans that this was the opinion of the majority of the
employees in the unit. However, although Evans testified
there were three other employees who made statements
about the Union, he could not name them. Moreover, at
these interviews which took place on March 6 and 7, 1971,
Evans reminded the employees and brought up the subject
matter of the Union if the employees did not do so.
Although Evans so testified, employee Webber, who
testified at the hearing, stated that Evans did not bring up
the subject of the Union nor was the Union discussed at his
interview. Both agreed, however, that several prospective
employees were present at each interview However, most
notable in Evans' testimony was the fact that he could not
identify by name, except McCartney, a single employee
who Evans claimed had told him that he did not want to be
represented by the Union.
With regard to these preemployment interviews and the
staffing of the Respondent's project, Evans testified that
Respondent had intended to hire all of the incumbent
employees as it did not "wish to do anyone out of a job
that was his livelihood." In fact , Evans testified that he in
effect told the future employees "You're in here. You are
an incumbent. You're making so many dollars an hour,
and if you want to continue on the same job I'll hire you."
Moreover, during these prehire interviews, Evans told
the employees that the Respondent did not feel that a
173
union was necessary and that the employees did not need a
union. It was in this context that the employees, if indeed
they did so state, told Evans that they did not want to be
represented by the incumbent union.`[
According to W. J. Dinkelmeyer, a union representative,
on March 6, 1971, he tried to telephone Warren Baric,
Respondent's project manager, to inform him that the
Union desired consultation before the hiring of the
incumbent employees by the Respondent. When he could
not reach Baric , according to Dmkelmeyer, he wrote a
letter to Baric at the Respondent's address in Orlando,
Florida, in which he stated that the Union would like to
meet with a representative of the Company to discuss the
transfer of TWA employees to the Respondent and any
problems that may be involved. This letter was never
answered. But, according to Evans and Baric, the letter was
never received by the Respondent nor was the telephone
message.
In any event, by letter dated March 12, 1971, the Union
notified the Respondent that it represented the employees
in the mail and distribution classifications and said that the
employees were covered by the collective-bargaining
agreement between TWA and the Union. The Union also
included with its March 12 letter, a copy of its contract
with TWA. In its March 12 letter, the Union also requested
recognition for the mail and distribution employees and
asked that Respondent not make any changes in the
existing wages and other terms and conditions of employ-
ment without first negotiating with the Union about such
changes. The Union also requested that Respondent adopt
and observe the terms of the existing TWA-IAM collec-
tive-bargaining agreement . This letter also stated that the
employees performing the work occupy the classifications
of senior distribution clerk, senior freight clerk, distribu-
tion clerk, freight clerk, and messenger-driver.
By letter dated March 22, 1971, Escholl Walker,
president of the Respondent, answered the Union's
demand in which he stated, in substance, that inasmuch as
the work force was not complete at that time, and
inasmuch as the work had not been started and would not
start until April 1, 1971, the Respondent did not know
what the complement of its employees would be. The
Respondent also questioned the appropriateness of the unit
as set forth in the Union's demand letter of March 12 The
Respondent also stated in that letter that it had interviewed
a number of the employees and that a number of them had
expressed their desire not to be represented by the Union.
Accordingly, Respondent's letter stated further that the
Respondent did not feel that it was obligated to bargain
with the Union, and suggested that if the Union felt that it
represented a majority of its employees when the work
started on April 1, 1971, that the Union should file a
petition for representation with the Board.
By letter dated March 31, 1971, the Union renewed its
demand upon the Respondent and in that letter corrected
its unit claim to eliminate from the unit all employees
except those occupying job classifications of senior
distribution clerk, distribution clerk, and messenger-driver.
The letter goes on to state that by the time the Respondent
would receive the letter its work at the Kennedy Space
4 From the testimony of Evans on cross-examination
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Center would have begun and that, therefore, the work was
not in futuro. It was therefore concluded that the time was
right for the Respondent to begin recognizing and
bargaining with the Union. The letter further disputes
Respondent's claim that a number of the employees
voluntarily expressed a desire not to be represented by the
Union. The Union claimed that its information was to the
contrary. The letter further disputes the Respondent's
contention that the Union should file a representation
proceeding, the Union contending that under the Act the
Union is the bargaining representative of Respondent's
employees and Respondent must bargain with it.
By letter dated April 14, 1971, Respondent answered the
Union's recognition request of March 31. In this letter the
Respondent again stated that it had a good-faith doubt as
to the Union's majority status and furthermore stated
concerning the TWA-IAM agreement that they had not
been provided a copy of that agreement by NASA or by
the Union until receipt of the March 12, 1971, letter. This
would seem to be in contradiction to Evans' testimony at
the hearing to the effect that he had requested and received
a copy of the TWA-IAM agreement before bidding for the
work to be performed at KSC. The letter of April 14 finally
states that the Respondent, in view of the Union's refusal
to file a representation petition , was going to file a
representation petition itself.
Thus matters stood as of the date that the Respondent
took over the mail and distribution service work at the
Kennedy Space Center on April 1, 1971.
C. Events Subsequent to April 1, 1971
On April 1 the Respondent entered upon the perform-
ance of its contract with NASA with 27 of the 41
employees who had performed the mail and distribution
services for TWA. It should be noted that the other 14
TWA employees were offered positions with the Respon-
dent but refused. The 27 former TWA employees who
came to work for Respondent as a result of the interviews
were in the categories of senior distribution clerk messen-
ger-driver, and distribution clerk.
As soon as the Respondent began to operate at the
Kennedy Space Center, without notice to the Union, it
substantially reduced or eliminated many of the existing
benefits and conditions of employment which the employ-
ees had been receiving when employed by TWA. These
changes were of a substantial nature and encompassed
almost every type of fringe benefit Further discussion of
this facet of this case is made hereunder. It should be
noted, however, that at no time did the Respondent discuss
or offer to discuss any of the changes which they made in
the employees' benefits with the Union. This, despite the
fact that the Union repeatedly continued to demand
recognition and bargaining.
During the first week of operations after April 1, 1971,
Baric called Evans to tell the latter that the employees had
decided to have a meeting and wanted to have a member
of management present on Friday, April 9, to discuss
various aspects of the job Evans agreed to attend. The
meeting was held on that date . Present beside Evans and
Baric were the 41 employees representing the categories
hereinabove set forth. During the first period of the
meeting, Evans spoke of the benefits the Company was
going to give , how they derived the benefits and where the
Company expected to go during the next year. Evans told
the employees that one of the things he wanted to establish
at that time was what their desires were with regard to
union representation . Evans thereupon read to the employ-
ees from a prepared text , the essence of which was that the
Union had made a demand for recognition for the unit
employees and that the Respondent had answered the
Union to the effect that it did not see how the Respondent
could recognize the Union . The text then explained the
basis for Respondent 's doubt that the Union represented a
majority of the employees and ended with the statement to
the effect that the Company was nonunion and would
prefer to stay that way.
A poll by secret ballot was then taken. The ballot was a
prepared ballot which stated at the top "Check one or
other , not both . Do not sign your name ." Under this was a
box alongside which were the words , " I do not want to be
represented by the Machinists IAMAW." Under that was
another box followed by " I do want to be represented by
the Machinists, IAMAW." The employees then cast their
ballots singly in secret and all 41 unit employees voted.
After the voting was completed Evans and employees
Steven Webber and Gary Decker counted the ballots. The
results were 21 votes cast in favor of the Union and 20
votes cast against . Immediately after the balloting, Webber
heard Evans say, "Well , it looks like you guys want a
union . We will write the IAM a letter and tell them to
come on in." 5
According to Evans and Baric, immediately after the
result of the ballot was announced , employees around
them made statements to the effect that if they had known
how close the vote was going to be they would not have
voted as they did. However, according to employee
Webber , he did not hear any such statements . When asked
if after the first poll there was general confusion among the
employees as to the purpose of the poll, Webber answered
in the negative.
Despite the outcome of the poll taken on April 9, the
Respondent did not in any way seek to contact or
negotiate with the Union, or to discuss with the Union any
of the changes which the Respondent had made with
regard to the employee benefits. According to Evans, this
was explained by the fact that there was confusion which
existed among the employees about the first poll on April 9
and that , therefore, Respondent was unwilling to rely on
that poll as a basis for union recognition.
After the poll of April 9, which resulted in continued
refusal by the Respondent to recognize and bargain with
the Union , the employees began to talk among themselves
regarding the possibility of an employee association.
According to senior distribution clerk Joel King, the
employees held a meeting on April 14 in which he and two
other employees proposed to the gathering that while they
were waiting for union representation they could either
5 From the credited testimony of employee Steven Webber as corrobo-
rated by the testimony of employee Charles Lowe
ATLANTIC TECHNICAL SERVICES CORPORATION 175
have an association among themselves or wait for the
Union to be recognized. This developed from King's
impression on April 9 that the Respondent was not going
to recognize the Union. Less than a week later, Baric
approached King and one of the other employees stating
that Baric had heard about their discussion of a proposed
association. It was Baric, therefore, who suggested that
they have a meeting among themselves and discuss the
possibility of an association.
At the April 14 meeting the association idea was
discussed. The employees took a vote among themselves
and decided that they would like to try the association
route. King related this to Baric. Baric then said that they
should have a second vote on the union situation.
Thereupon, on April 16 a second ballot was conducted by
Respondent King testified that at this ballot the employees
were definitely confused and really did not know what they
were voting for. King's understanding was that the
employees thought the purpose of the second ballot was to
decide whether the employees wanted an interim employee
association pending recognition of the Union or some
other labor organization. The ballots did not contain the
name of a union but merely gave the employees a choice
between union representation or none. The result of this
second vote was that union representation did not receive a
majority of the votes cast.
From that date on the Respondent has steadfastly
refused to recognize or bargain with the Union and has
conducted its business as though there were no union in
the picture.
D. The Successorshtp Issue
The request for proposal issued by NASA on October 9,
1970, for mail and distribution support services at
Kennedy Space Center, contains a work statement describ-
ing the services involved in performing the mail and
distribution work. This statement defines the exact work
which Atlantic Technical Services is obligated to perform
under their contract with NASA. Moreover, the contract
between NASA and TWA, which preceded the contract
between NASA and Respondent, contains an identical
work statement. Accordingly, it is concluded that the work
which the Respondent performs at the Kennedy Space
Center is identical to the work performed by TWA with
reference to the mail and distribution services. In fact, the
request for proposal calls for the staffing of the operation
by the same number of employees with the identical job
classification as TWA had utilized.
Moreover, 27 out of 41, a clear majority of the unit
employees hired by the Respondent to perform the mail
and distribution services were employees who had previ-
ously performed the identical work for TWA. Additionally,
the Respondent admitted and all of the evidence affirms
that the Respondent has performed the same work, at the
same location, for the same employer as TWA did,
utilizing approximately the same complement of employ-
ees.
It is therefore concluded and I find that the Respondent,
as of April 1, 1971, was the successor-employer of TWA.
E. The Unit Issue
It is well established that a successor-employer is
obligated to bargain with the union which is recognized as
the majority representative of the employees in the unit to
which the employer succeeds 6 However, the Respondent
here maintains that it is not obligated to bargain with the
Union because (1) the unit for which the Union requests
recognition is not appropriate and (2) the Respondent has
entertained from the time of the inception of its contract at
NASA a good-faith doubt as to the Union's majority
status.
In support of its argument that the unit requested by the
Union is inappropriate, the Respondent argues that the
senior distribution clerks, whom the Union would include,
are supervisors within the meaning of the Act and that
their inclusion in the unit renders the unit inappropriate.
Additionally, the Respondent argues that it has employees
whose work is related to the employees whom the Union
requests and who are not included in the unit proffered by
the Union. Moreover, the Respondent contends that it
cannot succeed to a unit which is but a small part of a
much larger unit which existed under the IAM-TWA
agreement when the entirety of the distribution support
services work was performed by TWA at Kennedy Space
Center.
It is concluded that even though the succeeding unit,
namely, the senior distribution clerks, distribution clerks,
and messenger-drivers, is lesser in scope than the preceding
unit, the diminution does not operate in any relevant
fashion to preclude the lesser unit from being appropriate.
The mail and distribution support services work is
precisely the same as it was under the TWA contract. The
class of employees performing the work is exactly the
same . Moreover , the work is severable and self-contained
and is unaffected by its separation from the larger
grouping . Accordingly, assuming that the inclusions and
exclusions are appropriate , the smaller unit which contin-
ues to exist after the changeover is itself appropriate. "The
Board has . . . held that where an allegedly `new' employer
takes over a portion of the operations of a predecessor
enterprise , and continues these operations without hiatus,
and with substantially the same employees, it is, as a
matter of industrial reality, the `successor employer' of the
employees involved. . . ." 7
For consideration next is the question of whether the six
senior distribution clerks are supervisors. At the outset, it
should be noted that the work of the mail and distribution
support services at Kennedy Space Center entails the
pickup and delivery of mail, messages , and other related
items according to approved schedules and routes, in
accordance with the request for proposal issued by NASA
on October 9, 1970. Additionally, Alfred Charles Nelson,
Respondent's chief of special services, who testified as to
the duties of the senior distribution clerks admitted in his
6 Ranch-Way, Inc, 183 NLRB No 116, enfd 445 F 2d 625 (CA 10),
Maintenance, Incorporated, 148 NLRB 1299
7 G T & E Data Services Corp. 194 NLRB No 102 See also Fry
Roofing Company, 192 NLRB No 177, Ranch-Way, inc, supra
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony that the whole job, referring to that of senior
distribution clerk, is "pretty routine."
The Respondent 's organization is headed by a president,
vice president , and secretary-treasurer. The working head
of the organization at Kennedy Space Center is a project
manager , Warren Baric . Answering to Baric is Alfred
Nelson, chief of special services, and James Moorehead,
chief of mail services . Below the chiefs are 6 senior
distribution clerks, 9 distribution clerks, and approximately
26 to 29 messenger-drivers.8 Out of these individuals, 4
report to the chief clerk of special services , Nelson, and the
remaining 37 report to Moorehead , chief of mail services.
The mail services are divided into five groups or divisions
known for convenience as the Central Mail Room, VAB,
O&C, CIF, and Cape. Working in the Central Mail Room
are 2 senior distribution clerks, 5 distribution clerks, and 12
messenger -drivers. In the VAB there is one senior
distribution clerk, one distribution clerk , and seven
messenger-drivers. In O&C there is one senior distribution
clerk and three messenger -drivers. In CIF there are one
distribution clerk and two messenger -drivers. In Cape there
are no distribution clerks, only two messenger-drivers.
Under TWA, the chief distribution clerks performed
work of sorting mail, inserting it in the mail bags,
delivering mail, and engaging in further physical activity
identical with that of distribution clerks and messenger-
drivers only in an emergency when there was a shortage of
other employees to perform the work. However , since April
1, under the aegis of the Respondent , the senior distribu-
tion clerks perform the same work as the distribution clerks
and messenger-drivers for approximately 25 percent of
their time or one-fourth of each day's work performance.
According to Nelson, who testified as to these matters, the
senior distribution clerks are now considered by the
Respondent as working leads. For the other three-fourths
or 75 percent of their working time, the senior distribution
clerks answer the telephone approximately for an hour and
a quarter to an hour and a half each day, receiving
instructions , changes in mail routine , and complaints from
the various points under their jurisdiction about failure to
receive mail promptly or not at all. Part of their remaining
time is spent preparing vehicle mileage reports and
dispatching vehicles to the motor pool for repair and
maintenance . For about one-half hour a day they assign
people to perform their daily tasks. They also add, delete,
and change mail stops , mail codes , and mail bins to comply
with NASA's requirements . This takes approximately an
hour and a quarter per day. In the morning, for about 25
minutes, the chief distribution clerks ascertain who is
available and make assignments accordingly.
In assigning work to employees, the senior distribution
clerks do nothing to assign work to distribution clerks. The
latter's work is strictly routine, they break down the mail
and sort it and there is no necessity to make assignments to
them . The remaining employees to whom assignments are
made are the messenger -drivers. These messenger-drivers
function in much the way that mailmen function in the
ordinary routines of mailmen in the United States Post
Office Department . The messenger-drivers rotate mail runs
B These figures are compiled from the testimony of Banc and Nelson and
from the request for proposal Inasmuch as the unit would seem to contain
each week and the senior distribution clerk keeps a record
of the rotation . Normally, the senior distribution clerk
assigns messenger-drivers to routes each week , in rotation,
in order to maintain the efficiency of the drivers so that
each driver knows approximately every route under the
jurisdiction of that particular division . However , if a driver
has a complaint about a run and for some reason believes
he might be treated unfairly in the assignment of the run,
he may request a change of assignment from the senior
distribution clerk . In addition , there are special deliveries
necessary . For these runs the senior distribution clerk must
determine who is to make the run on the special delivery.
He does this by determining which of the messenger-
drivers is available to make the run and then assigns the
work to that driver.
According to Nelson , whose testimony in this respect is
accepted as uncontroverted , a senior may work an
employee "through his break " if necessary and he may
grant an employee time off. However , in the event that the
chief distribution clerk denies time off, the employee can
go to a superior to appeal the refusal . Thus, in this respect
the senior distribution clerk has no final authority.
Insofar as disciplinary authority is concerned , the chief
distribution clerk may report an act of insubordination or
inefficiency to his superior . However, his role in such case
would be tantamount merely to that of an informant
inasmuch as it would be the superior who would make the
decision as to whether or not to mete out discipline. In
such a case the senior distribution clerk would report to the
chief clerk or project manager what an employee had done.
The senior distribution clerk might then sit in on a
conference with the employee and the responsible manage-
ment official and might suggest discipline but the decision
would be made by the project manager or the chief clerk.
Moreover , since the Respondent has taken over the work
at the Kennedy Space Center on April 1 , 1971, there is no
evidence of the exercise or possession of disciplinary
authority by the senior distribution clerks. Before that,
under TWA, the seniors role was that described above and
then only infrequently . Nelson could only testify that this
occurred about seven times over a period of 5 or 6 years. In
summarizing, matters of importance are taken up with the
project manager or chief clerks who do not necessarily act
upon the recommendation of the senior distribution clerks
but make their own conclusion as to what is necessary and
proper.
Additionally , the senior distribution clerks have no
authority to hire or fire . The record is barren of any
evidence that they make hiring recommendation and there
is little , if any, evidence in the record as to what weight
their recommendation as to firing might have been given
by their superiors . Moreover , the senior distribution clerks
do not participate in promoting or rating employees. The
only authority they have in this area , if indeed it is
authority , is to relay to management a customer's recom-
mendation of an employee and suggest a letter of
commendation be inserted in the employee 's file. While it
is true they may talk to an employee about faulty
performance or about refusal to accept a discipline, they
41 individuals , the proper figure would seem to be 26 messenger-drivers
ATLANTIC TECHNICAL SERVICES CORPORATION
apparently have no real authority to do anything about this
but report it to their superiors.
Insofar as training employees is concerned, the senior
distribution clerks, although obligated in their employment
status to train other employees, do so only as more
experienced employees would train any employee in any
plant or factory. Thus, he might accompany a messenger-
driver on a mail run that the messenger-driver has not
previously made so that the messenger-driver can be
familiarized with the run. A senior could also accompany a
driver on a run to see whether the run should be
lengthened or shortened or that the driver had enough time
on the run, and also to observe the time that the driver
took on the run to see whether he is performing the run
efficiently.
In connection with this, the senior distribution clerk
observes and reports on the work of a less skilled
employee. And if there is any reproof at all by the senior
with regard to his relationship with the other employees, he
would have no more authority than to verbally scold an
employee for some minor infraction.
The senior distribution clerk for the purpose of efficien-
cy can and does change the position of the equipment in
his office, and does make record changes to correspond
with changes in the mail runs. However, since these
changes occur rather frequently these would seem to be
routine operations that have little to do with personnel
action. Thus the senior, in this instance, would be
concerned primarily with equipment changes, rather than
personnel direction.
If the senior distribution clerks are considered employees
rather than supervisors, the supervisory ratio of employees
to supervisors is 7 to 1. If the 6 senior distribution clerks
were added to the admitted 6 managers of the Respondent,
this would make a total of 12 supervisors to 35 distribution
clerks and messenger-drivers, a ratio of less than 3 to 1. In
connection with this, it should be noted that in the Cape
mailroom there are two drivers who get along without any
senior distribution clerks, and presumably without any
supervision by them.
With regard to working conditions and remuneration,
while the seniors enjoy a higher hourly rate of perhaps 6 to
10 percent over that of the other distribution clerks, their
other working conditions are the same. As stated, they are
hourly paid as are the other employees. They work next to
the other employees, lunch with them, and other working
conditions are the same . They enjoy the same facilities,
work the same hours, and have the same fringe benefits.
Historically, the senior distribution clerks have been
included in the unit with the other employees. Thus, it can
be determined that, at least under TWA, they were
regarded as ordinary employees, and not supervisors.
Additionally, at the ballots conducted by the Respondent
of its employees on April 9 and 16, 1971, the Respondent
asked and permitted the senior distribution clerks to
participate and cast ballots. Thus it would seem at least, at
that time, the Respondent must have regarded them as
members properly included in the unit.
The facts with regard to the status of the senior
9 Phalo Plastics Corp., 127 NLRB 1511, 1513; New England Transporta-
tion Co., 90 NLRB 539; Capital Transit Co ., 98 NLRB 141 , 143-145.
177
distribution clerk, as set forth above, were taken from the
testimony of Alfred Nelson, the only witness offered by the
Respondent for this purpose. Yet, Nelson, who since the
advent of the Respondent in April 1971, has been the chief
special services clerk and has had only a few employees to
supervise. The bulk of the employees are under the
supervision of the chief clerk of mail services . Thus with
regard to the major portion of the employees of the
Respondent, Nelson had little opportunity to personally
observe the operations and his testimony was chiefly based
on his observations of the employees under the TWA
contract at which time he was employed as project
manager . Thus, some of his testimony with regard to the
duties and authority of the senior distribution clerks under
the present regime is somewhat vague and lacking in
definitiveness . Additionally, the chief clerk of mail serv-
ices, James Moorehead, who was in a better position to
know the details of these matters, was not called by the
Respondent.
While it is true, as advanced by the Respondent, that
Section 2(11) of the Act, which defines the term "supervi-
sor," has been uniformly held to state the indicia of
supervisory authority in the disjunctive and that, in order
to find an individual to be a supervisor, it is necessary for
that individual to possess only one of these indicia, it is
concluded that the senior distribution clerks do not
possess, in a basic sense , any of these indicia, either actual
or inchoate.
Thus, in assigning work to their messenger-drivers, the
exercise of judgment is limited, for the most part, to finding
a driver who is free to do the work. His assignment of
drivers to the various routes is, for the most part, routine,
in that the assignments are rotated in an almost completely
predictable manner . If the senior distribution clerk does
take a complaining driver off one route and assign him to
another, it does not require the exercise of judgment that
would ordinarily be exercised by a true supervisor. In this
respect, he is more like a dispatcher. Thus, the work
assignment practiced by the senior distribution clerk is
routine and entails little discretion and does not require the
use of independent judgment .9
Nor is the fact that the seniors can work a man through a
coffeebreak or permit an employee to take time off of any
great significance.lo
With regard to disciplinary matters, the senior distribu-
tion clerks exercise no real authority. Thus, although he
can perhaps verbally scold an employee for an infraction,
this is a limit of his authority. As stated above he has
neither the authority to hire nor fire, nor can he effectively
recommend the same . Matters of real significance are
taken up by consultation with the projects chief or chief
clerk who act on their own and not upon recommendation
of the senior distribution clerks. Moreover, the training
that is done by the senior distribution clerks corresponds to
that of a more skilled employee teaching a less skilled
employee the requisites of a job. None of this entails
responsible or effective independent judgment. The Board
has consistently held that for an experienced employee to
observe or report on the work of a less skilled employee is
10 G. C. Murphy Co., 171 NLRB 370,371: Carrey Transportation Co., 119
NLRB 332. 334.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the hallmark of the relationship of the skilled to the less
skilled and is wholly nonsupervisory.11
Nor do I find of any significance the ability of the senior
distribution clerks to make equipment changes. These
again are routine and are connected with the changes in
the sequence of mail runs. Additionally, I note that aside
from their higher rate of pay, the senior distribution clerks
share all other working conditions and fringe benefits with
their fellow employees. Finally, I note that the ratio of
supervisors to employees, were the senior distribution
clerks to be considered supervisors, would be one supervi-
sor to every three employees. This would seem to be quite
out of line in view of the routine type of work which is
involved.12
Thus, I find and conclude that the senior distribution
clerks are none other than leadmen whom the Board
normally does not regard as supervisors.13 Thus he is
neither in name or in substance a genuine supervisor.
Although he is charged with some leadership responsibili-
ties, the direction of the work is routine in nature and does
not require the use of independent judgment. Therefore, it
is found that the senior distribution clerks are nonsupervi-
sory and are included in the unit herein found to be
appropriate for the purposes of collective bargaining.
The Respondent would also include in the unit the senior
document control clerk and the document control clerk.
However, the meager description of their duties in the
record is insufficient to base a decision as to their clerical
functions in connection with the other employees included
in the unit. Accordingly, I do not find that they are
included in the unit. Moreover, the record shows that these
employees perform a severable, clerical function and that
they have never been union represented and were not
covered by the IAM-TWA agreement. Accordingly, I shall
exclude them from the unit.
Even assuming that the senior distribution clerks are
supervisors and not properly includable in the unit, I
would still find the unit to be appropriate. True, the unit
would be smaller. But, the essential character of the unit
would be the same and the integrity of a basic unit would
not be affected. Nor would the IAM's representative status
within the unit be affected.
By reason of all of the foregoing, I find and conclude
that all mail and distribution service employees employed
by the Respondent at the Kennedy Space Center, Cape
Kennedy, Florida, including senior distribution clerks,
distribution clerks, and messenger-drivers, but excluding
all other employees and office and clerical employees and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
I further find that, by virtue of the above finding, the
Respondent is a successor-employer to TWA and that the
Respondent hired 27 out of the 41 employees in the
predecessor unit and by further reason of the fact that the
Union had been the recognized bargaining representative
of these employees under the TWA contract since
September 1, 1964, I find and conclude that the Union at
11 Southern Bleachery and Print Works, 115 NLRB 787, 791-792,
Cumberland Shoe Corp, 144 NLRB 1268, West Virginia Pulp and Paper Co,
122 NLRB 738, 746
all times herein is and has been the bargaining representa-
tive of the employees in the said unit.
F. The Respondent's Allegation of
Good-Faith Doubt
However, the Respondent contends that it is not
obligated to bargain with the Union because the Respon-
dent has always entertained, from the inception of its
connection with the Cape Kennedy mail services, a good-
faith doubt as to the Union's majority status. Some of the
testimony which Respondent offers in support of this
contention is set forth above. As related, during the
pretakeover period, Respondent's secretary-treasurer, Ev-
ans, had some conversations with Alfred Nelson who had
been supervisor of mail and distribution services for TWA
and was hired on April 1, 1971, by the Respondent as chief
of- special services. According to both Nelson and Evans,
Nelson had informed Evans that in Nelson's opinion the
employees were dissatisfied with the Union. In testifying,
Nelson named four of the employees who had stated this
dissatisfaction to him.
The second item of testimony in relation to this subject is
that of Evans relating to the prehire interviews which were
conducted among the incumbent TWA employees during
March 1971. According to Evans, many of these employees
told Evans during these interviews that they did not want
representation by the IAM. However, Evans could not
state either the number or the names of the employees
whom he alleged made these statements to him. It is
significant in connection therewith that, in testifying,
Evans stated that, if the employees who were interviewed
in groups of three and four did not mention the matter of a
union, he saw to it that the union matter was brought up.
Nevertheless, in his statement to the employees before the
April 9, 1971, poll, the details of which are hereinafter
related, he told the employees that "As you well know, we
avoided mentioning union when we interviewed you. It
was only after you said something about the Union that we
stated we had not been a union company. At no time did
we predict we would have no union in our operation."
There would seem to be some inconsistency between
Evans' testimony and the statement he made to the
employees prior to the poll.
In contrast to Evans' statement with regard to the prehire
interviews, employee Webber stated that he was inter-
viewed, with three other employees present, by Evans and
that the Union was not mentioned by anyone during that
interview. Employee Rickelman also testified that in his
prehire interview by Baric, Respondent's project manager,
the matter of the Union was not raised. Employee Lowe
testified that during the interview he was present with
several other employees one of whom did state that he did
not want the Union. However, this was after Evans himself
brought up the subject. The other employees present at
that time with Lowe did not make any statement about the
Union one way or the other.
Baric, the project manager, testified that he was present
at approximately 60 percent of the interviews and that 20
12 American Radiator and Standard Sanitary Corp, 119 NLRB 715, 718
13 Southern Bleachery and Print Works. 115 NLRB 787, 791
ATLANTIC TECHNICAL SERVICES CORPORATION 179
to 25 percent of the employees expressed their desire not to
be represented by a union. On the other hand, Evans
testified that there were only four employees who stated
that they wished union representation at the prehire
interviews. Thus, there is a discrepancy between the
testimony of Evans and Banc. Furthermore, the testimony
of Evans would seem to be in conflict with the testimony of
Webber and Lowe. As noted, Webber testified that he was
interviewed with three other employees and that the Union
was not mentioned. Lowe testified that only one employee
out of the three with whom he was interviewed expressed
dissatisfaction with the Union. Thus, there arises from all
of the foregoing a grave doubt as to the accuracy of Evans'
testimony to the effect that all but a very few of the
employees expressed dissatisfaction with the Union at the
prehire interviews.
This, then, is the sum total of the basis for the
Respondent's claimed doubt of the Union's majority
representation as of the date that the Respondent took over
the mail services at the Kennedy Space Center and at the
time that the Union first expressed its request to bargain
with the Respondent.
Upon the inception of the Respondent's employment at
the Kennedy Space Center on April 1, 1971, according to
Evans and Baric, other events occurred. According to
Banc, during the first week in April, various employees
told him that they wanted an employee association. Others
discussed with Banc their desire to resign from the Union.
As a result of these comments, and in response to the
employees' request, this information was given to Evans
who on April 9, 1971, called the employees to a meeting. In
attendance were all 41 employees in the classifications of
senior distribution clerk, distribution clerk, and messenger-
driver.
Before a poll was taken at the meeting on April 9, Evans
addressed the employees from a prepared speech. In that
speech Evans informed the employees, among other things,
that the Respondent had received information from the
program manager and supervisors that there was talk going
around about some of the employees having submitted or
planning to submit their resignations from the Union. He
further stated that because of the comments some of the
employees had made during the interviews and because of
the Union's demand for recognition, he thought that the
matter should be cleared up by the taking of a poll. Before
the poll was taken, Evans expressed the purpose of the poll
to the employees as "to determine the truth of the
Machinists Unions', the IAMAW, claim that they repre-
sent a majority of the employees." The balance of the
statement concerned itself with the secrecy of the poll and
the fact that there would be no recriminations against any
employees regardless of the result of the poll. The poll was
conducted under virtual laboratory conditions. As noted,
the employees were told not to sign their names on the
ballots and were assured that there would be no recrimina-
tions. Furthermore, the poll was conducted in the strictest
of secrecy, the ballot box being in a separate room where
no one was present except the individual voting. The
ballots were then counted by representatives from each of
the three employee classifications and by Evans. The
result , as heretofore set forth, was 21 for the IAM and 20
against . The ballot itself read as follows:
Check one or the other, not both. Do not sign your
name.
I do not want to be represented by the Machinists,
IAMAW
I do want to be represented by the Machinists
IAMAW.
According to Evans and Baric , immediately after the
results of the poll were announced to the assembled
employees, some of the employees expressed the thought
that they would not have voted for the Union had they
known the result would be that close. Others, according to
Baric and Evans, stated that they would not have voted for
the Union if they thought the Union would win. Neither
Evans nor Banc could identify whose voices they heard
make these remarks, nor could they state how many such
remarks were made . On the other hand, employee Webber,
who was standing next to Evans when the results were
announced, testified that he heard no such remarks except
one to the effect that the employee involved was surprised
at the closeness of the vote. According to Evans, Banc told
him that he thought that Evans had gone "too fast" and
that the employees were confused and did not realize the
purpose of the vote.
Despite the outcome of the vote, the Respondent decided
not to recognize and bargain with the Union. This was
evidently made clear to the employees, who, a few days
later, on April 14, held a meeting to decide whether to have
an employee association . According to employee King who
conducted the meeting, and to employee Webber, who was
present, the purpose of the meeting was to decide whether,
until the Union was recognized, the employees should have
some form of organization to at least process grievances.
Baric knew of this meeting and in fact gave employees
permission to have it. The employees decided at that
meeting to have an association . This was conveyed to Baric
who then relayed the information to Evans. Accordingly,
according to Evans, the Respondent decided to have
another poll in view of this latest development, and in view
of the apparent confusion of the employees after the April
9 vote.
As a result, on April 16 a further vote was taken. Evans
again addressed the employees before the vote and again
assured them that the vote was to be secret and that there
would be no recriminations regardless of the outcome. This
time , however, the ballot did not mention the IAM, but
gave the employees a choice only between general union
representation and no union representation . The result of
this second ballot was 16 for union representation and 24
against.
I do not find germane to the issue of good-faith doubt
the events which succeeded the taking of the April 16 poll.
However, it is sufficient to state that the Respondent
thereafter continued its refusal to recognize and bargain
with the Union.
In considering, in the light of all of the foregoing, the
question of whether the Respondent had a good-faith
doubt of the Union's majority status as of the date that the
Union made its first claim upon the Respondent, and at
the time the Respondent took over operations at the
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kennedy Space Center, the testimony with regard to the
prehire interviews must be weighed. As noted above there
is considerable discrepancy between the testimony of
Evans and Baric with regard to the extent of employee
expressions of dissatisfaction and discontent with the
Union at the prehire interviews. In addition, it is difficult,
if indeed not impossible, to determine how much employee
response was prompted by questioning by Evans at these
interviews. It should be noted that the incumbent employ-
ees who were interviewed were seeking to be hired by a
new employer. Thus their expressions with regard to the
Union, especially in those instances which were prompted
by Evans, were somewhat less than reliable.
Where, as here, a prospective employer interviews
employees who are told that the employer is not a union
company and does not desire unionization and where the
employee is seeking to retain his employment with the new
employer, it is very doubtful that expressions of antiunion
sentiment by the employees can be relied on as expressions
of their true interests in a union. The economic factor of
job retention is too vital to employees, in these circum-
stances, to permit employees to express their true senti-
ments. Thus, an employer cannot be said to rely on
objective considerations when he states that he relies on
such interviews as the basis for his doubt as to a union's
majority status. Accordingly, with regard to these inter-
views, I do not find that they constituted such objective
considerations as can be relied on to predicate a good-faith
doubt as to union majority. Nor do the mere statements of
Supervisor Nelson to Evans to the effect that it was
Nelson's opinion that the employees did not desire union
representation present reliable, objective criteria for the
establishment of good-faith doubt. Thus, at the time that
the Respondent first rejected the Union's request for
recognition and bargaining, the Respondent could not
have had a good-faith doubt as to the union's majority
status based on objective criteria.
Additionally, if there was, in fact, a doubt in the
Respondent's mind up until April 9, such doubt should
have been dispelled upon the results of the poll taken that
day. As set forth above, the poll was conducted under what
were virtually laboratory conditions. Therefore, although
the vote for the Union was not overwhelming, it did reflect
the state of mind of the employees. Although Evans and
Baric claim in their testimony that there was confusion
among the employees with regard to the purpose of that
ballot, it is gainsaid that Evans clearly explained to the
employees before the vote was taken that the purpose was
to determine whether or not the employees desired to be
represented by the Union. Even assuming that Baric and
Evans can be credited in their testimony as to the remarks
made by unknown employees after the results of the vote
were announced, the Respondent must have been satisfied
that the employees desired union representation. The fact
that the vote was so close does not render it any the less
decisive. The Respondent itself set up the laboratory
conditions under which the vote was taken and, under the
circumstances, should have been satisfied with the results.
Moreover, Evans was heard to say, "Well it looks like you
guys want a union We will write the IAM a letter and tell
them to come in."
Nevertheless, the Respondent was evidently not satisfied
with the result of that vote and, accordingly, approximately
a week later conducted a further poll this time not
specifically mentioning the Union but merely asking
employees to decide whether they desired to have union
representation or not. Additionally, the second poll was
taken after the employees had decided that they wanted an
employee association to represent them until such time as
they could get union representation and the matter with
the IAM was concluded.
Accordingly, and in view of all of the foregoing, I find
and conclude that the Respondent did not have a good-
faith doubt as to the Union's majority status and that
therefore the Union was and still is the majority represent-
ative of the employees in the unit heretofore set forth.
G. The Impact of the Changes in Benefits
As heretofore related, the Respondent upon hiring of the
27 employees formerly employed by TWA, without notice
to the Union, substantially reduced or eliminated a
number of the existing benefits and conditions of employ-
ment which the employees had been receiving when
employed by TWA. These changes were substantial in
nature having effect on almost all of the fringe benefits.
Thus, there was a loss of all seniority rights, reduced
vacation benefits, less holidays, lower dependent coverage
under hospitalization plan, higher cost of hospitalization
plan, loss of dental plan, loss of bereavement pay, loss of
severance pay, loss of retirement benefits and less sick
leave , loss of cost-of-living increase , loss of double-time
pay after 16 hours work per day, and other changes. These
changes, as noted , were made without benefit of consulta-
tion or discussion with the Union despite the fact that the
Union repeatedly requested such discussion.
It having above been decided that the Respondent is the
successor-employer of TWA and that the Union is the
bargaining representative of the employees in the unit
above found appropriate, the question then remains
whether the Respondent , in making the unilateral changes
above enumerated , refused to bargain in violation of
Section 8(a)(5) and (1) of the Act.
The Respondent was aware of the terms and conditions
of employment of the employees under the TWA-IAM
agreement inasmuch as the Respondent had received
copies of the contract before it even made its bid for the
mail distribution work at the Kennedy Space Center. This
contract , plus all the other information received from
NASA, informed the Respondent that all of the employees
whom it desired to hire were working under the terms of
this bargaining agreement. Also, there was no basic change
in the employing industry since the Respondent performed
the same function utilizing the same complement of
employees in the same manner as did TWA when it
performed the work under contracts for NASA.
The Supreme Court stated in N L R.B. v. Burns Interna-
tional Security Services, Inc., 406 U.S. 272, 281.
[W ]here the bargaining unit remains unchanged and a
majority of the employees hired by the new employer
are represented by [their bargaining agent,] there is
little basis for faulting the Board 's implementation of
the express mandates of § 8(a)(5) and § 9(a) by
ATLANTIC TECHNICAL SERVICES CORPORATION 181
ordering the employer to bargain with the incumbent
union.
Accordingly, I find and conclude that by refusing to
recognize and bargain with the Union in the instant case,
the Respondent violated Section 8(a)(5) and (1) of the
National Labor Relations Act.
Moreover, although in the Burns case the Supreme Court
held that the successor-employer was not obligated to
make its employees whole for the reduction in benefits
which it instituted because of the special factual circum-
stances present in that case, such a conclusion is not
warranted by the factual situation presented in the case at
bar. Moreover, the Supreme Court in its decision in the
Burns case anticipated a situation such as presented by the
facts of the instant proceeding. Thus the Court in that case
stated:
Although a successor employer is ordinarily free to
set initial terms on which it will hire the employees of a
predecessor, there will be instances in which it is
perfectly clear that the new employer plans to retain all
of the employees in the unit and in which it will be
appropriate to have him initially consult with the
employees' bargaining representative before he fixes
terms. 14
This language, quoted above, is wholly applicable to the
situation in the case at bar. Evans, Respondent's secretary-
treasurer, testified that before staffing of the project, the
Respondent intended to hire all of the incumbent employ-
ees as it did not "wish to do anyone out of ajob that was
his livelihood." Indeed, when the Respondent interviewed
the incumbent employees for positions which would begin
on April 1, the interviewers were directed to seek to hire all
of the employees who were then performing the work.
Moreover, during the course of the interviews, the
employees were told by Evans and Baric "You're in here.
You are an incumbent. You are making so many dollars
and if you want to continue on the job, I will hire you."
Thus it is apparent "that the [Respondent] did plan to
retain all of the employees in the unit" and that it therefore
was "appropriate to have . .. [Respondent] initially
consult with the employees' bargaining representative
before . . . [Respondent] fixes the term."
Additionally, it is concluded that the Supreme Court's
use of the word "consult" means "to bargain." 15
Thus, by making it clear that it planned to utilize the
incumbent work force as its work force, the Respondent
established its nexus with the unit, and it could not justly
disassociate the unit employees it planned to retain from
the Union, which was their existing bargaining representa-
tive. In these circumstances the Respondent could not
ignore the employees' collective-bargaining representative
in dealing with them as to matters related to the
continuation of their employment and the terms and
conditions of such employment.16 Accordingly, I find and
conclude that the Respondent planned to hire all of the
incumbent employees, that it unequivocably repudiated the
IAM as the bargaining representative of these employees
and dealt directly with them and unilaterally established
the terms of employment to them. By these acts the
Respondent violated its obligation to bargain with the
Union, and thereby violated Section 8(a)(5) and (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent, described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices in violation of
Section 8(a)(5) and (1) of the Act, it shall be recommended
that Respondent cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
Having found that the Respondent has unlawfully and
unilaterally changed and reduced the benefits of its
employees without consultation or bargaining with the
Union, it will be ordered that the Respondent make its
employees whole for any losses they may have suffered by
reason of such unilateral action by restoring to the
employees the benefits and status of which they were
divested, restitution to commence as of April 1, 1971, with
interest at 6 percent per annum in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716, with respect to
any monetary losses.17 Having found that the Respondent
has refused and still refuses to bargain with the Union, in
violation of Section 8(a)(5) and (I) of the Act, it will be
ordered that Respondent cease and desist from such
refusal and bargain upon request by the Union.
The General Counsel and the Union maintain that
restitution remedies should be applied with regard to the 14
TWA employees who did not accept employment with
Respondent, and that these employees should be offered
reinstatement and backpay. Counsel for the General
Counsel and the Union argue that it is most likely that the
14 employees would have accepted employment with the
Respondent had it not been that the terms offered were less
than those enjoyed by these employees under the TWA-
IAM agreement, and that since such changes in employ-
ment terms were unlawfully promulgated, these employees
should be offered the opportunity to be restored to
employment equivalent to that which they formerly
enjoyed. However, there is complete absence in the record
of any testimony or other evidence with regard to the
reasons these individuals did not accept employment with
the Respondent. In these circumstances, it is concluded
that the contention advanced by counsel for the General
Counsel and Respondent is based on speculation and not
proof. Accordingly, the remedy is not extended to cover
these individuals.
14 Burns, supra, 294-295
is See NLRB v Katz
16 Chemrock Corp, 151 NLRB 1074, 1080
17 Cf Spruce-Up Corporation, 194 NLRB No 145
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and on
the entire record in this case , I make the following:
CONCLUSIONS OF LAW
1. Atlantic Technical Services Corporation is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union is the exclusive representative for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment of the employees in the
following appropriate unit:
All mail and distribution service employees, including
senior distribution clerks, distribution clerks, and
messenger-dnvers, but excluding office clerical employ-
ees and supervisors defined in the Act.
4. By unilaterally making changes in the terms and
working conditions of the employees in the said unit,
without bargaining with the Union regarding the same, the
Respondent has refused to bargain in violation of Section
8(a)(5) and (1) of the Act.
5. By refusing to recognize and bargain in any manner
with the said Union, the Respondent has violated and is
violating Section 8(a)(5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
and are unfair labor practices within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(b) of the
Act, I hereby issue the following recommended: 18
ORDER
Respondent , Atlantic Technical Services Corporation, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain , upon request, with International
Association of Machinists and Aerospace Workers,
AFL-CIO , as the representative of its employees in the
following unit:
All mail and distribution service employees employed
18 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes
19 In the event the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
at Respondent's facilities at Kennedy Space Center,
Florida, including senior distribution clerks, distribu-
tion clerks, and messenger-dnvers, but excluding office
clerical employees and supervisors as defined in the
Act.
(b) Effecting changes in preexisting employment benefits
and terms and conditions of employment without consult-
ing the statutory representative of its employees.
(c) In any like or related manner, interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Upon request bargain with the above-named Union
as the exclusive representative of the employees in the unit
defined above with respect to wages, hours, and other
terms and conditions of employment, and, if an agreement
is reached, embody it in a signed contract.
(b) In the manner prescribed in the Remedy section of
this Decision, make whole its employees for any losses they
may have suffered as a result of the unilateral changes in
benefits and working conditions since April 1, 1971, with
interest at 6 percent per annum.
(c) Post at its facilities at Kennedy Space Center, Cape
Kennedy, Florida, copies of the attached notice marked
"Appendix." 19 Copies of said notice, on forms provided by
the Regional Director for Region 12, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Decision, what
steps Respondent has taken to comply herewith.20
of the National 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 "
20 In the event that this recommended Order is adopted by the Board
after exceptions have been filed , this provision shall be modified to read
"Notify the Regional Director for Region 12, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "