Base Services, Inc.

National Labor Relations Board - Board Decisions

Aug 21, 1989

296 N.L.R.B. 172 (N.L.R.B. 1989)

172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Base Services , Inc. and National Association of Gov-
ernment Employees, affiliated with Service Em-
ployees International Union, AFL-CIO. Case
17-CA-1394
August 21, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On May 22 , 1989, Administrative Law Judge
William N . Cates issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to the Respondent 's exceptions.
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 briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent was a suc-
cessor employer to the United States Army and
that it violated Section 8(a)(5) and (1) of the Act
by refusing to recognize and bargain with the
Union as the representative of a unit of the Re-
spondent 's maintenance and supply employees. We
disagree . Specifically , we find that the evidence
does not establish that a majority of the Respond-
ent's employees in either (1) the expressly alleged
unit of maintenance and supply employees , or (2) a
unit of maintenance , supply , transportation, and
quality control employees, had been employed in
either of the units previously represented by the
Union at Fort Leonard Wood.'
Prior to the Respondent 's start up of operations
on June 1 , 1988,2 the Army employed approxi-
mately 300-340 people in the Directorate of Logis-
tics (DOL) at Fort Leonard Wood . Just prior to
June 1 , 269 of the DOL workers were wage-grade
employees represented by the Union in the first of
the bargaining units set forth in footnote 1, supra.
As of June 1 , the Respondent took over the
maintenance , supply, transportation , and quality
control functions previously performed in the
DOL, and also created three small new depart-
ments : contract administration , employee relations,
and accounting and finance . As of the pay period
ending June 5, the Respondent employed 239 non-
supervisory employees .3 The parties stipulated that
at the time the Respondent commenced operations
on June 1 a majority of its work force was com-
prised of individuals who had previously worked
for the DOL prior to June 1 , as employees of the
Federal Government . As seen, however , the DOL
was comprised of more than wage-grade employ-
ees represented by the Union . Thus, the fact that a
majority of the Respondent 's employees were
former DOL employees does not, under the instant
circumstances , necessarily mean that a majority of
the Respondent's employees were former DOL
wage grade employees, represented by the Union.
Indeed , the record reflects that they were not. Of
the 239 nonsupervisory employees employed by
the Respondent as of the pay period ending June 5,
just after the Respondent's June 1 takeover of op-
erations from the DOL, only 109 (46 percent) of
them were former DOL wage -grade employees,
represented by the Union.
As indicated , although the Respondent took over
performance of the maintenance , supply, transpor-
tation , and quality control functions previously per-
formed by civilian employees of the Army (and
added contract administration , employee relations,
and accounting and finance functions ), the com-
plaint alleged and the judge found that a unit of
only the Respondent 's maintenance and supply em-
ployees was appropriate . 4 In a unit limited to the
i Prior to the June 1 , 1988 takeover by private employers (including
the Respondent ) of functions formerly performed by civilian employees
of the United States Army at Fort Leonard Wood , the Union represented
two separate bargaining units
a All Wage Grade employees of United States Army Training
Center Engineer and Fort Leonard Wood , and all Wage Grade em-
ployees of the United States Army Health Services Command and
the United States Army Communications Command with duty sta-
tion at Fort Leonard Wood , Missouri , except employees of the Com-
missary Sales Store , employees engaged in Federal personnel work
in other than a purely clerical capacity , management officials , super-
visors and guards as defined in the Order
b Included all nonsupervisory employees of the U S . Army Com-
missary Store at Fort Leonard Wood , Missouri. Excluded employees
engaged in Federal personnel work in other than a purely clerical
capacity , temporary intermittent (WAE) employees, confidential em-
ployees, managers, supervisors as defined in the Order , and general
schedule employees of the Control Section , Fort Leonard Wood,
Missouri Commissary Store
2 All dates are 1988 unless otherwise stated.
9 The Respondent employed 261 employees as of the pay period
ending June 5 The Respondent 's project manager at Fort Leonard
Wood , Pete McKinney, testified that a total of 22 of them were in super-
visory positions; however , McKinney did not specifically identify these
22 individuals.
4 The Respondent excepts to the judge 's finding that a unit of only
maintenance and supply employees is appropriate . The Respondent as-
serts that the record does not establish that the maintenance and supply
employees have a community of interests distinct from the Respondent's
transportation and quality control employees . In reply , the Union argues
that "quite plainly these [transportation and quality control] employees
are included in the appropriate unit," because the maintenance and
supply functions described in the unit found to be appropriate actually
include the Respondent 's transportation and quality control functions
In light of the record evidence referred to above, it is not clear why
the complaint alleged and the judge found that a unit of only the mainte-
nance and supply employees is appropriate However , in light of our
finding below that the Union did not have majority status in either unit
Continued
296 NLRB No. 23
BASE SERVICES
Respondent 's maintenance and supply employees,
only 77 (39 percent) of the 196 total maintenance
and supply employees employed by the Respond-
ent as of the pay period ending June 5 were former
DOL wage -grade employees represented by the
Union . In a unit including the Respondent 's mainte-
nance , supply, transportation , and quality control
employees , only 108 (43 percent) of the total 253
maintenance , supply, transportation , and quality
control employees employed by the Respondent as
of the pay period ending June 5 were former DOL
wage-grade employees represented by the Union.5
The record does not show whether any (and if so,
how many) of either (1) the Respondent 's other
employees employed as of pay period ending June
5, or (2) any additional employees hired by the Re-
spondent prior to the July 15 close of its initial
hiring program , were previously represented by the
Union in non-DOL jobs in either of the two units
represented by the Union prior to June 1 . Thus, the
record fails to establish that at any time material a
majority of the Respondent 's work force in either
the alleged unit of maintenance and supply employ-
ees, or in a unit of maintenance , supply, transporta-
tion , and quality control employees , was comprised
of employees formerly represented by the Union.
Accordingly , we find and conclude that the Re-
spondent was under no obligation to bargain with
the Union, and that it did not violate the Act as al-
leged by refusing to do so.6
ORDER
The complaint is dismissed.
configuration (i e., with or without transportation and quality control em-
ployees), we find it unnecessary to resolve the unit question in this pro-
ceeding
5 Only one of the eight contract administration , employee relations,
and accounting and finance employees employed by the Respondent as of
pay period ending June 5 was a former DOL wage-grade employee.
6 NLRB v Burns Security Services, 406 U.S 272, 281 (1972), Untied
Maintenance & Mfg. Co., 214 NLRB 529, 532-534 (1974). See generally
Fall River Dyeing Corp. v. NLRB, 482 U.S 27, 46-47 and fn 13 ( 1987) In
light of our findings and conclusions above, we find it unnecessary to
pass on the judge's discussion of any of the other issues potentially raised
in this case
Richard C. Auslander, Esq., for the General Counsel.
James G. Baker, Esq. (Spencer, Fane, Britt & Browne), of
Kansas City, Missouri , for the Company.
Brent J. Jaimes, Esq., of St. Louis, Missouri, for the
Union.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. This
case was tried before me in Mission (Kansas City),
173
Kansas, on February 21 and 22, 1989,1 pursuant to a
complaint and notice of hearing (complaint) issued by
the Regional Director for Region 17 of the National
Labor Relations Board (Board) on November 9, 1988.2
The complaint is based on a charge filed on July 18 by
the National Association of Government Employees, af-
filiated with Service Employees International Union,
AFL-CIO (Union). The complaint alleges Base Services,
Inc. (Base or Company) has engaged in certain violations
of Section 8(a)(5) and (1) of the National Labor Rela-
tions Act (the Act or NLRA).
The central issue herein is whether Base is a successor
under the Act to the United States Army (the Army)
thereby having an obligation under the Act to recognize
and bargain with the Union which had been the collec-
tive-bargaining representative of certain employees of the
Army. There are other related or inextricably inter-
twined issues such as; whether there should be a legal
presumption of successorship under the Board 's tradition-
al test for successorship when the prior employer was
the Federal Government (the Army) and the subsequent
employer (Base) is from the private sector; whether a
labor organization organized pursuant to the Federal
Labor Relations Act (FLRA) with the representational
powers permitted under that Act should be considered a
labor organization within the meaning of the NLRA;
whether employees would desire continued representa-
tion by a such a organization with the expanded negoti-
ating powers it would have under the NLRA; whether
the successor unit is so fragmented as to be inappropri-
ate; and whether there is evidence to rebut a presump-
tion the Union continues to enjoy majority status in the
successor unit.
All parties were afforded full opportunity to examine
and cross-examine witnesses , to argue orally, and to
submit briefs. Briefs which have been carefully consid-
ered were submitted by counsel for the General Counsel,
the Union, and Base.3
On the entire record , including my observation of the
demeanor of the witnesses, I conclude below, after exam-
ining the relevant evidence and applicable legal princi-
ples, that there is no impediment to the finding, which I
make, that Base is the successor of the Army and is obli-
gated to recognize and bargain with the Union for its
employees in the unit which is appropriate for collective-
bargaining purposes.4
i I granted Base's request on the second day of trial to sever this case
from Harbert International Services (Harbert), Case I7-CA-13953
s All dates herein are 1988 unless otherwise indicated
Subsequent to filing its brief in this matter, Base through its counsel
asked that I consider certain calculations set forth in a letter dated April
18, 1989 , that should have been included at p 10 of its brief . On April 21,
1989, counsel for General Counsel moved that I reject Base 's calculations
as being untimely , egregiously contrary to record stipulations, and an at-
tempt by Base to offer additional facts into the record . On April 27,
counsel for Base objected to counsel for the General Counsel 's motion
contending the assertions made by counsel for the General Counsel were
incorrect I have considered Base 's calculations as nothing more than a
correction to its brief
4 The appropriate unit is-
All employees of Base performing maintenance and supply for the
training and troop areas of the United States Army base in Fort
Leonard Wood , Missouri, but excluding office clericals employees,
Continued
174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. JURISDICTION
Base is a corporation with an office and principal place
of business in Paramus , New Jersey. It is engaged in the
physical maintenance of military bases, including the
Army base in Fort Leonard Wood, Missouri .5 Since on
or about June 1, Base has performed services valued in
excess of $500,000 for the Army at its Fort Leonard
Wood, Missouri, base and has purchased and received
products, goods, and materials at that facility valued in
excess of $50,000 directly from points outside the State
of Missouri. The complaint alleges, and I find, that Base
is, and at all times material herein has been, an employer
engaged in a business affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the evidence establishes,6 and I
find, the Union is, and at times material herein has been,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
On October 29, 1968, the Army, under authority of
Executive Order 10988 , voluntarily recognized7 the
Union as the collective-bargaining representative of all
wage grades employees employed in various directorates
at Fort Leonard Wood, Missouri. Thereafter, an Amend-
ment of Recognition issued amending the unit descrip-
tion to conform to requirements of Executive Order
11491. These employees have been covered by a series of
labor agreements between the Union and the Army. The
most recent agreement by its "roll -over" provisions is ef-
fective until November 1990. Prior to June 1, the Union
represented approximately 763 wage grade employees in
certain general areas at the base, namely , Headquarters,
USA Medical Department Activity, US Army Commu-
nications Command-Fort Leonard Wood, US Army
Commissary, and US Army Training Center Engineer
and Fort Leonard Wood.
The wage grade employees in the Army Training
Center functioned in separate identifiable groupings of
employees . Those wage grade employees that were uti-
lized to perform maintenance on equipment and to issue
supplies to and provide transportation for the Army
troops operated under the Directorate of Logistics
(DOL). There are a total of approximately 12 different
directorates at the base . Base was selected , after a cost-
professional employees , guards, supervisors as defined in the Act,
and all other employees.
8 The Company 's Fort Leonard Wood , Missouri, location is the only
location involved in the case sub judice
6 Evidence on the Union 's status as a labor organization within the
meaning of the Act is more fully addressed later in this Decision
r The parties stipulated at trial that "A review by all parties of the
documents and evidence , including evidence in the possession of the
Charging Party , does not establish conclusively whether NAGA had ma-
jority support in the unit for which it was recognized in 1968 or thereaf-
ter."
effective study and pursuant to a bidding process, to be
the contractor to perform the functions previously per-
formed at the Army Training Center by DOL. Base as-
sumed those functions on June 1.8 Just prior to June 1,
there were approximately 269 wage grade employees
employed in DOL.9 As of June 1, Base employed 239
rank-and-file employees . At the time Base commenced
operations and at relevant times thereafter, a majority of
its rank-and-file employees had previously been em-
ployed in DOL.1 ° At relevant times, Base employed 8
managers , 22 working leadpersons/supervisors , 2 quality
control employees, 2 exempt employees, and 1 account-
ant. Only one of Base's eight managers had previously
worked as a manager with DOL. That manager occu-
pied the same position at DOL that he currently occu-
pies for Base . Three of Base's 22 working lead-
persons/supervisors were supervisors at DOL in the
same positions they currently occupy at Base.
From its inception, Base has utilized seven separate de-
partments in its operations . Those seven departments are:
maintenance , transportation , supply, quality assurance,
contract administration , finance and accounting , and em-
ployee relations . The latter three departments did not
exist at DOL. The vast majority of Base's employees are
employed in the first four above listed departments. Base
only employs one rank-and-file employee in each of the
latter three departments . Sixty percent of the job classifi-
cations utilized by Base are essentially the same as those
previously utilized by DOL, while 40 percent are some
what different in that some job classifications have been
consolidated with others thereby enhancing the job
duties for employees occupying the combined classifica-
tions . Base provides the same basic services for the
Army that DOL had. In addition to the above, Base per-
forms some maintenance on target ranges at the base that
employees at DOL had not previously performed. Base
has, however, been able to absorb the target range main-
tenance without the need for any additional employees.
Base operates out of the same facilities and utilizes the
same equipment that DOL utilized. The employees of
Base work essentially the same hours that the employees
in DOL worked and the customer for whom the work is
performed, namely the Army, is the same as it had been
with DOL.
The Union, while representing employees at DOL and
other directorates, did not have the authority to bargain
with the Army concerning , among other things, wages,
cost of living increases , overtime pay, pension or retire-
ment plans, health or life insurance coverage , vacation
8 At the same time and pursuant to the same process , Harbert was se-
lected as the contractor to perform the functions of the Directorate of
Engineering and Maintenance (DEH) The wage grade employees in
DEH performed buildings , roads, and ground maintenance . The matter
related to Harbert is covered in a companion case (17-CA-13953). A sep-
arate decision will issue in that case
9 I am not unmindful that Union Representative Garold Lawson esti-
mated there were approximately 240 such employees However, G C
Exh 4 , a computer-generated printout of the employees as of October 30,
1987. reflects approximately 269 such employees . Lawson testified the
list, with possible minor changes , was accurate until just prior to June 1.
Lawson placed the total number of employees utilized in DOL that the
Union represented prior to June 1 at approximately 300 to 340
10 Base had hired all the employees it intended by July 15
BASE SERVICES
pay, holidays, or the accrual of sick leave. The Union
was permitted to, and did in fact, bargain with the Army
concerning the taking of sick and vacation leave as evi-
dence by the collective-bargaining agreement that cov-
ered, among other employees, those employed in DOL.
The Union had the authority to bargain with the Army
concerning training provided employes with DOL. The
Union could challenge the compelling need for Army-
wide directives that affected DOL or other covered em-
ployees before such directives or regulations were insti-
tuted, however, once the Army established a compelling
need for any regulations, the Union's right to challenge
the directives or regulations ended. The Union could
thereafter only bargain with the Army about the imple-
mentation of such directives or regulations. The Army
was not required to bargain with the Union concerning
the need for layoffs among, for example, the employees
in DOL; however, certain of the procedures to be fol-
lowed in reductions in force were subject to negotia-
tions.
The Union through its various locals represents Feder-
al sector employees pursuant to the FLRA, private
sector employees pursuant to the NLRA, and state em-
ployees pursuant to statutes of the States involved. The
scope of the Union' s bargaining authority is governed by
the employment status (i.e., Federal , state, or private en-
terprise) of the employees involved.
The Union asked for recognition and bargaining on
June 1. Base, in a letter dated June 14, rejected the
Union's request stating it had no obligation to recognize
or bargain with the Union.
B. Discussion, Analysis, and Conclusions
It is settled law under the Board and court's traditional
test that when a new employer takes over the business of
a formerly unionized operation and does so with a sub-
stantial and representative complement of bargaining unit
employees, a majority of whom had been similarly em-
ployed by the predecessor, the new employer will be
considered a "successor employer" and will inherit cer-
tain of the predecessor's bargaining obligations. The obli-
gations the successor inherits includes recognizing and
bargaining in good faith with the union but does not bind
it to the predecessor's collective-bargaining agreement
with the union. NLRB v. Burns Security Services, 406
U.S. 272 (1972), and Fall River Dyeing Corp. v. NLRB,
482 U.S. 27 (1987). In determining whether there is "sub-
stantial continuity" between the enterprises, the Court-
approved approach has been to consider the totality of
circumstances with careful consideration given, but not
limited to, the following factors: (1) whether there has
been a continuation of the same business operations; (2)
whether the new employer utilizes the same facilities as
the previous employer; (3) whether the new employer
utilizes the same or substantially the same work force; (4)
whether the same jobs exist under the same working
conditions; (5) whether the new employer utilizes the
same or substantially the same supervisors ; (6) whether
the new employer utilizes the same machinery, equip-
ment, and/or methods of production; (7) whether the
new employer manufactures the same products, offers
the same services , and/or has the same customers; and
175
(8) whether there has been a hiatus between the previous
and the new employer's operations. None of these fac-
tors is dispositive . See NLRB v. Band-Age, Inc., 534 F.2d
1 (1st Cir. 1976), cert. denied 429 U.S. 921 (1976). These
factors must be viewed from the employees' perspective,
that is whether their job situation has so changed that
they would change their attitudes about being represent-
ed. See Derby Refining Co., 292 NLRB 1015 (1989), see
also NLRB v. Security-Columbian Banknote Co., 541 F.2d
135 (3d Cir. 1976). A mere change in ownership without
an essential change in working conditions would not be
likely to change employee attitudes about representation.
NLRB v. Burns Security Services, supra at 278-279. The
presumption about employee attitudes toward representa-
tion is necessary to promote stability during changes of
employers and to reduce industrial strife. As the Board
stated in Derby Refining Co., supra:
Both the Union and the employees are vulnerable
during this period and hard-earned bargained-for
rights can easily be diminished. Fall River Dyeing
Corp. v. NLRB, 482 U.S. 27, 39 (1987). Employees,
especially during such times, are worried about re-
taining their jobs and may shun the union if they
feel it will help their chances of doing so. If no pre-
sumption existed, corporate transformation could be
used to avoid the union and exploit employees'
fears. Id. Such a situation would not be conducive
to industrial peace.
The Board is not precluded from finding that succes-
sorship status exists simply because the predecessor was
not covered by the Act. Cf. Boeing Co., 214 NLRB 541,
548, 559 (1974). Likewise the Board has held that a mere
diminution in the employee compliment of the bargaining
unit does not relieve the successor from its duty to bar-
gain , e.g., Lloyd Flanders, 280 NLRB 1216, 1219 (1986).
Nor does the fact the successor only takes over a portion
of the operations of the predecessor preclude a succes-
sorship finding. See G. T. and E. Data Services Corp., 194
NLRB 719, 720-721 (1971). As noted in Stewart Granite
Enterprises, 255 NLRB 569, 573 (1981), and alluded to in
Louis Pappas' Restaurant, 275 NLRB 1519 (1985):
[I]t is established that successorship obligations are
not defeated by the mere fact that only a portion of
a former union-represented operation is subject to
the sale or transfer to a new owner, so long as the
employees in the conveyed portion constitute a sep-
arate appropriate unit, and they comprise a majority
of the unit under the new operation . [Case citations
omitted.]
Before focusing on the successorship issue it is helpful
to address the Company's contention that the Union
herein is not a labor organization within the meaning of
the Act.
Section 2(5) of the Act defines a "labor organization"
as:
[A]ny organization of any kind, or any agency or
employee representation committee or plan, in
176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
which employees participate and which exist for the
purpose, in whole or in part, of dealing with em-
ployers concerning grievances, labor disputes,
wages, rates of pay, hours of employment , or condi-
tions of work.
Thus, a labor organization must be one in which employ-
ees participate and which exists for the purpose of dealing
with employers concerning grievances , labor disputes,
wages, rates of pay, hours of employment or conditions
of work. See, e .g., United Truck & Bus Service Co., 257
NLRB 343 (1981). It is clear that the Union herein
admits to membership and represents employees from,
among other sectors, the private sector . Thus, it exists, in
part , as an organization in which employees , within the
meaning of the Act, participate , and it deals with em-
ployers, within the meaning of the Act, concerning the
requisite matters outlined in Section 2(5) of the Act.
The particular local-R14-32-that the Union had des-
ignated to deal with the predecessor (the Army) has pro-
visions in its constitution and bylaws relating to member-
ship qualifications . The membership qualifications set
forth at article II are:
Section 1 . Qualifications : Any person, male or
female, who is presently employed by the Federal
Government of the United States or retired from
government service (as provided for in the National
Constitution and By-laws ) shall be eligible to join or
maintain membership in the National Associations
of Government Employees regardless of creed,
race, color, age or national origin.
Thus, at first glance it would appear that Local R14-32
does not admit non-Federal government employees to
membership and as such would not be an organization in
which employees, as defined in the Act, participate.
However, the provision in question for membership by
Federal Government employees is not exclusive as was
the case in United Truck & Bus Service Co., supra, where
the Board found the Union in that case not to be a labor
organization within the meaning of the Act, because pri-
vate sector employees were prohibited from membership
in that union . There is nothing in Local R14-32's consti-
tution and bylaws that absolutely prohibits membership
by non-Federal employees . Although Local R14-32's
president , Leonard Johnson, testified that in order to be
a member of Local R14-32 one had to be employed by
or retired from the Federal Government such overall ex-
clusion of non -Federal employees is not set forth in or
required by the Local's constitution and bylaws . Further-
more, the Union , including Local R14-32, has by its ac-
tions herein, clearly expressed a willingness to represent
the employees in question . It is this willingness and
desire to represent the employees in question that is the
controlling factor, rather than Local R14-32's constitu-
tional ability to do so . See Gino Morena Enterprises, 181
NLRB 808 (1970). Thus, I conclude that the Union (in-
cluding designated Local R14-32) is a labor organization
within the meaning of the Act.""
I I In any event , the evidence indicates the Union designates it locals
depending on the employment sector of the employees involved Thus,
Turning now to the successor issue I shall consider
that issue under the traditional approach to such cases
before addressing Base's contention the Board 's legal
presumption of successorship should not apply where the
predecessor was the Federal Government and the new
employer is from the private sector . In applying the tra-
ditional successorship test, I am not unmindful that some
of the various factors overlap . I have, where it has been
appropriate for discussion and analysis purposes , consoli-
dated factors.
It is clear that when Base began operations on June 1,
it did so with a representative complement of its work
force employed , a majority of which were former DOL
employees . I am persuaded the employees viewed Base's
operations as a continuation of the services performed by
DOL. In that regard , Base provides the same services to
the same customer-the Army-that DOL provided.
Base does provide the additional service of maintaining
the target ranges at the base, however, such additional
duties did not necessitate the hiring of any additional em-
ployees . Base operates out of the same facilities utilizing
the same equipment and working essentially the same
hours as had the predecessor , DOL. The organizational
differences established by Base such as its departments of
contract administration , finance and accounting , and em-
ployee relations are each staffed with only one unit em-
ployee each . Viewed from the employees' perspective,
these changes were not so dramatic as to likely affect
their views or attitudes about being represented by the
Union . Sixty percent of the job classifications utilized by
Base are substantially the same as those that had been
utilized at DOL. In the 40 percent that are different, the
differences are only that the job classifications are more
enhanced in that employees in these classifications may
be performing a consolidation of duties that were previ-
ously performed by separate classifications at DOL.
These classification consolidations were motivated by ef-
ficiency considerations and not due to any changes in the
types of work performed or services provided. The evi-
dence establishes that other changes made by Base are
also insignificant. For example , DOL utilized a time
keeper to maintain time cards and employees were only
required • to sign them at the end of the workweek
whereas Base requires its employees to fill out their own
timecards daily . I also view as a minor change the fact
Base in reviewing work the customer finds fault with or
rejects brings its employees in direct contact with the
customer whereas under DOL the employees were given
written "pink slip" type notifications of any problems on
work they had performed . I do not view as negating a
finding that Base is the successor of DOL that only one
of its eight managers had worked for DOL and only
three of its 22 working leadpersons/supervisors had
worked at DOL in the same positions they have at Base.
The overall continuity of the business operation viewed
from the employees ' perspective remains substantially
unchanged notwithstanding the fact the overall supervi-
sion is somewhat changed.
no impediment to the Union representing the employees in question
exists.
BASE SERVICES
Finally, I note Base commenced providing the services
DOL had provided without a hiatus between operations.
The unit of all maintenance and supply employees at
Base is classically appropriate . Accordingly, under the
traditional approach to successor cases, I conclude and
find Base is the successor of DOL and as such has an ob-
ligation to recognize and bargain in good faith with the
Union.
I shall now consider whether the traditional successor-
ship doctrine , under which I find Base to be a successor,
should apply in a situation such as herein , where the
predecessor was the Federal Government and the suc-
cessor is from the private sector.
I am persuaded the traditional successorship test is the
proper one to be applied in the instant case notwithstand-
ing the fact the predecessor-the Army-was not an em-
ployer within the meaning of the Act. Imposing succes-
sorship in the instant situation fulfills the purposes of the
Act by fostering stability and harmony in labor relations
for an employer (Base) who is covered by the Act and
which renders services to a customer (the Army) that di-
rectly affects national defense . To fail to apply the tradi-
tional successorship test in the instant case, merely be-
cause the predecessor was from the public sector, would
place form over the substantive goals of the Act. Stated
differently , the employees of Base which are currently
covered by the Act may not be denied the benefits that
arise under the successorship doctrine simply because
their former employer was from the public sector. Em-
phasis in successorship cases must be placed upon a de-
termination of continuity of the enterprise rather than
upon the source of such employment . In summary, I find
that the fact the predecessor and the Union's labor agree-
ment was governed by the FLRA does not vitally
impede the finding , which I make , that Base is the suc-
cessor of the Army.
I shall next consider whether there has been fragmen-
tation of the unit such as would preclude imposing a
successorship obligation upon Base . First, I note succes-
sorship obligations are not defeated simply by the fact
that only a portion of a former unionized operation is
taken over by a new employer so long as the employees
in the conveyed portion constitute a separate appropriate
unit and they comprise a majority of the unit under the
new operation . In the case sub judice there were ap-
proximately 763 employees in the overall unit at the base
with bargaining unit employees working in approximate-
ly 12 different directorates.' 2 As is noted throughout this
Decision the directorate involved herein is DOL. Just
prior to June 1, there were approximately 269 wage
grade (300 to 340 total) employees in DOL. As of June
1, Base employed 239 workers (plus 22 working lead-
persons/supervisors). It is clear that DOL functioned as
a separate and identifiable work group of the overall unit
at the base and had a clearly established work objective
which was to perform maintenance on equipment and
issue supplies to and provide transportation for army
troops at the base. Base assumed those same functions for
12 Directorates at the base are generally best described as departments
or bureaus of the base with certain distinct functions or missions to ac-
complish
177
the Army at the base . Although Base only acquired a
portion of the functions of the overall unit at the prede-
cessor it nonetheless assumed a separate and distinct por-
tion . The unit of employees at Base is not that signifi-
cantly smaller than the directorate (DOL) it replaced.
Thus, I conclude and find there was not an inappropriate
fragmentation of a previously homogeneous grouping of
employees such as to preclude imposing successorship
obligations upon Base.
Where there is substantial continuity between the em-
ploying enterprises and a successor (such as Base) hires a
majority of the predecessor 's (the Army's) unionized
work force a continuing desire for representation is pre-
sumed . A question, however, arises in the instant case as
to whether there is anything that would rebut that pre-
sumption . I find there is insufficient evidence to over-
come the presumption . In attempting to rebut the pre-
sumption Base contends there are such drastic differ-
ences between the bargaining rights of Federal and pri-
vate employees that it is simply inappropriate to assume
that workers who selected a Federal union would desire
to have that some organization represent them in the pri-
vate sector. Base points out what it asserts are some of
these drastic changes . Base notes the Union did not have
the right to call a strike against the predecessor (the
Army) and argues it would be unreasonable to assume
that the employees would now desire to have an exclu-
sive bargaining agent with that authority . Base argues
that because the Union did not have the authority to bar-
gain with the predecessor concerning wages and certain
fringe benefits it was nothing more than a "mere om-
budsman" compared to a labor organization under the
Act, and as such it would be inappropriate to presume
the employees would still desire union representation by
an organization with the enhanced bargaining rights this
Union would have in the private sector. I reject the
Company's above outlined contentions because they are
invalid and speculative . While bargaining in the Federal
sector is much narrower than the obligations imposed
upon private employers by the NLRA, I am nonetheless
persuaded no reason exists to presume these former
public sector employees would reject having the Union
as their bargaining representative simply because the rep-
resentative 's bargaining powers have been increased.
Base's contention that expanded bargaining rights under
the Act were not contemplated by the former public
sector employees and as such might cause them to reject
the Union is speculative. Simply stated , I find no reason
to conclude that an increase in bargaining rights and
powers would cause the employees of Base to reject the
Union as their bargaining representative.
Base makes two additional contentions it asserts rebuts
the presumption of a continuing desire by its employees
to be represented by the Union, both of which are with-
out merit . First, Base points out there were few dues-
paying members in the overall unit at the predecessor.
While this contention is true (as of June 1 there were 154
dues-paying members in the unit of approximately 763
employees) union membership is not an accurate or con-
trolling indicator of employees desire for union represen-
tation . Employees may desire the benefits of unionization
C
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD178
without any of the expenses related thereto . Second,
Base asserts the Union has no experience in representing
private sector employees and that it would be "absurd"
to presume its employees desired this "totally inexperi-
enced" organization to be their collective -bargaining rep-
resentative . Assuming arguendo that the Union lacks ex-
perience in the private sector , a finding of which I am
unwilling to make, such would not preclude it from serv-
ing as the collective -bargaining representative for Base's
employees . Furthermore, there is nothing to indicate the
Union had not represented the employees of the prede-
cessor in collective bargaining , grievance handling, and
statutory appeals to the fullest extent possible under the
FLRA. Therefore , the employees may well expect a
continuation of representation to the fullest extent possi-
ble from the Union as their representative in the private
sector . Accordingly , a lack of private sector experience,
even if established , would not standing alone rebut the
presumption the employees still wish to be represented
by the same union they had designated and selected at
the predecessor.
In summary , and as noted at the beginning of this deci-
sion , I find Base is the successor of the Army and is obli-
gated to recognize and bargain with the Union for its
employees in the unit which is appropriate for collective-
bargaining purposes.
CONCLUSIONS OF LAW
1. Base Services, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. National Association of Government Employees, af-
filiated with Service Employees International Union,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. Base Services , Inc. is the successor of the mainte-
nance employing entity (DOL) of the United States
Army at Fort Leonard Wood, Missouri.
4. All employees of Base performing maintenance and
supply for the training and troop areas of the United
States Army base in Fort Leonard Wood, Missouri; but
excluding office clerical employees , professional employ-
ees, guards , supervisors as defined in the Act, and all
other employees constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
5. National Association of Government Employees, af-
filiated with Service Employees International Union,
AFL-CIO has been, and is , the exclusive representative
of all employees in the aforesaid appropriate unit for the
purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
6. By refusing on or about June 14 , 1988, and at all
times thereafter , to recognize and bargain collectively
with the above-named labor organization as the exclusive
representative of all its employees in the appropriate
unit, Base has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Base has engaged in certain unfair
labor practices , I shall order it to cease and desist and to
take certain affirmative action designed to effectuate the
policies of the Act.
I shall order Base to recognize and, on request , to bar-
gain with the Union as the exclusive representative of all
its employees in the appropriate unit, which unit is de-
scribed elsewhere in this decision . I shall also order that
Base post a notice to employees attached as an appendix
for 60 days in order that employees may be apprised of
their rights under the Act and Base's obligation to
remedy its unfair labor practices.
On these findings of fact, conclusions of law, and on
the entire record , I issue the following recommended' 3
ORDER
The Company, Base Services , Inc., Fort Leonard
Wood, Missouri , its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Refusing to recognize and bargain in good faith
with National Association of Government Employees,
affiliated with Service Employees International Union,
AFL-CIO as the exclusive bargaining representative of
the employees in the bargaining unit described elsewhere
in this decision.
(b) 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 which is
deemed necessary to effectuate the policies of the Act
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement:
All employees of Base performing maintenance and
supply for the training and troop areas of the
United States Army base in Fort Leonard Wood,
Missouri; but excluding office clerical employees,
professionals employees , guards, supervisors as de-
fined in the Act, and other employees.
(b) Post at its Fort Leonard Wood , Missouri facilities
copies of the attached notice marked "Appendix." t 4
Copies of the notice , on forms provided by the Regional
Director for Region 17, after being signed by Base's au-
thorized representative, shall be posted by Base immedi-
ately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where no-
is 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
i4 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 "
BASE SERVICES 179
tices to employees are customarily posted . Reasonable
steps shall be taken by Base to ensure that the notices are
not altered , defaced , or covered by other material.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Base has
taken to comply.
APPENDIX
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT refuse to recognize and, on request, bar-
gain in good faith with National Association of Govern-
ment Employees, affiliated with Service Employees
International Union , AFL-CIO as the exclusive bargain-
ing representative of the employees in the bargaining
unit described below:
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
All employees of Base performing maintenance and
supply for the training and troop areas of the
United States Army base in Fort Leonard Wood,
Missouri ; but excluding office clerical employees,
professionals employees , guards, supervisors as de-
fined in the Act, and other employees.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on terms and
conditions of employment for our employees in the bar-
gaining unit described above.
BASE SERVICES, INC.