Bekins Moving & Storage Co.

National Labor Relations Board - Board Decisions

Feb 29, 2000

330 N.L.R.B. 761 (N.L.R.B. 2000)

BEKINS MOVING & STORAGE CO., LLC 761
Bekins Moving & Storage Co., LLC and Teamsters,
Chauffeurs, Warehousemen and Helpers, Local
No. 542, International Brotherhood of Team-
sters, AFL–CIO. Case 21–CA–32429
February 29, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 10, 1999, Administrative Law Judge Gerald
A. Wacknov issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and the
Respondent filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
ORDER
The complaint is dismissed.

David Mori, Esq., for the General Counsel.
Stephen J. Hirschfeld, Esq. (Curiale, Dellaverson, Hirschfeld,
Kelly & Kramer, LLP), of San Francisco, California, for the
Respondent.
Don Cruickshank, of San Diego, California, for the Union.
DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. Pursuant
to notice a hearing in this matter was held before me in San
Diego, California, on February 16, 1999. The charge was filed
on December 12, 1997, by Teamsters, Chauffeurs, Warehouse-
men and Helpers, Local No. 542, International Brotherhood of
Teamsters, AFL–CIO (the Union). On September 18, 1998, the
Regional Director for Region 21 of the National Labor Rela-
tions Board (the Board) issued a complaint and notice of hear-
ing alleging a violation by Bekins Moving & Storage Co., LLC
(the Respondent) of Section 8(a)(5) of the National Labor Rela-
tions Act (the Act). The Respondent, in its answer, duly filed,
denies that it has violated the Act as alleged.

1 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
Although we agree with the judge that the Respondent did not vio-
late Sec. 8(a)(5) and (1) by setting initial terms and conditions of em-
ployment for unit employees, we disavow the implication in his analy-
sis that “arbitrary rules” govern a successor employer’s provision of
information to prospective employees.
In affirming the judge’s finding that the Respondent did not violate
the Act, we rely on the General Counsel’s failure to establish that Gen-
eral Manager Bill Lovejoy was an agent of the Respondent in May
1997 and had authority at that time to advise employees, on behalf of
the Respondent, that the Respondent would probably retain them fol-
lowing its purchase of the facility. In particular, there is no evidence
that Lovejoy had, at that time, been offered and accepted any position
with the Respondent or had been directed to contact employees on
behalf of the Respondent. Compare: Lemay Caring Center, 280 NLRB
60, 66–67 (1986), enfd. mem. sub nom. Dasal Caring Centers v. NLRB,
815 F.2d 711 (8th Cir. 1987) (statements of acting administrator attrib-
utable to the successor employer because before the statements were
made, the successor had hired her and authorized her to contact em-
ployees on its behalf regarding their employment with the successor).
In addition to the foregoing, Member Hurtgen agrees with the judge’s
analysis under NLRB v. Burns Security Services, 406 U.S. 272, 294–
295 (1972).
The parties were afforded a full opportunity to be heard, to
call, to examine and cross-examine witnesses, and to introduce
relevant evidence. Since the close of the hearing, briefs have
been received from counsel for the General Counsel (the Gen-
eral Counsel) and counsel for the Respondent. On the entire
record, and based on my observation of the witnesses and con-
sideration of the briefs submitted, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, with and office and facility located in San
Diego, California, is engaged in the moving and storage busi-
ness. In the course and conduct of its business operations, the
Respondent annually derives gross revenues in excess of
$50,000 for the transportation of freight from the State of Cali-
fornia directly to points located outside the State of California.
It is admitted, and I find, that the Respondent is engaged in
commerce or in an industry affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that at all material times the Union
has been a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issue raised by the pleadings is whether the
Respondent, as a successor employer, has violated Section
8(a)(5) and (1) of the Act by unilaterally changing the terms
and conditions of its employees prior to bargaining with the
Union for a new contract.
B. The Facts
The facts are not in material dispute. On July 3, 1997,1 the
Respondent purchased and took over the operations of the San
Diego facility from a predecessor employer, Bekins Moving
and Storage Company, Inc. (Bekins or the predecessor), during
the term of a collective-bargaining agreement between Bekins
and the Union, and continued substantially the same operations
of the facility with the same employee complement. The com-
plement of employees covered under the Union’s contract with
Bekins consisted of only two warehouse employees, namely,
Union Shop Steward Patrick Crompton and Bruce Harridge,
both of whom continued their employment with the Respondent
as explained below. Other employees, not directly involved
here, also continued their employment with the Respondent.
Prior to the time the Respondent assumed operations of the
facility the two unit employees were initially told by Bekins’
management, most of whom were subsequently retained as
1 All dates or time periods herein are within 1997, unless otherwise
specified.
330 NLRB No. 119
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 762
managers of the Respondent, that they would be retained by
the Respondent. Further, during the course of several meetings
subsequent meetings prior to the Respondent’s takeover of the
operations of the facility, the two employees were specifically
advised that in order to be hired by the Respondent they would
be required to submit a new employment application, that they
would have to sign an acknowledgment that their employment
with the Respondent would be considered to be “at will,” and
that as such they would no longer enjoy the safeguards under
the union contract. In addition, they were advised that their
terms and conditions of employment would be changed in ac-
cordance with the provisions of the Respondent’s “Employee
Handbook” which they were given, and that, among other
changes, they would be covered by the Respondent’s 401(k)
plan rather than the Union’s pension plan. All these matters, as
more fully set forth below, were specifically brought to the
attention of the employees, and they were told that if they de-
sired to work for the Respondent they would have to accept
these new terms and conditions of employment.
Bekins, by letter dated May 28, wrote to Union Representa-
tive Manuel Barbosa, with whom Bekins had negotiated the
then current collective-bargaining agreement, as follows:

Please be advised that Bekins Moving & Storage Co.
has entered into a tentative agreement to sell the five dis-
trict offices/branch facilities listed below to a single new
buyer.
. . . .
It is my understanding that you are the spokesperson
for the Teamsters Locals involved whose members work
at our above listed facilities. The purpose of this letter is
to notify you of the sale which we believe will close es-
crow on/or about Monday June 9, 1997. Further, we
hereby offer to bargain over the effects of this sale on the
Union members working at these facilities.
Although we are not familiar with the precise terms
and conditions of employment, we are pleased to learn that
continued employment will be offered to all employees
currently working under the collective bargaining agree-
ment.
If you wish to bargain over the effects of this decision
or wish to discuss the matter further, please feel free to
contact me at the telephone number on this letterhead.

At about the same time, sometime in May, one of the unit
employees, Shop Steward Patrick Crompton, was told by
Bekins General Manager Bill Lovejoy who subsequently be-
came the Respondent’s general manager, that Bekins would
probably be sold at the end of May or early June and, according
to Crampton, that Lovejoy “felt secure that we [Crampton and
the other unit employee, Harridge] would be retaining employ-
ment because we [the San Diego operation] were doing really
well.”
On July 2, the Union’s business agent, Don Cruickshank,
wrote to the Respondent’s president and chief executive officer,
Chris Carlsson,2 as follows:

It is my understanding that you have bought the San
Diego Bekins operation. If this is correct, by this letter I
am request [sic] Successor bargaining.
Your predecessor was covered by a Collective Bar-
gaining Unit Agreement and as the Successor, you are ob-

2 Carlsson was formerly a senior vice president for Bekins.
ligated to negotiate a Successor Agreement. I have July
22 and 24 available to meet.
Also, as the Successor to Bekins Moving and Storage
Co., Inc., you are obligated to maintain all working condi-
tions as is, until a new Agreement is reached.[3]

The Respondent presented evidence, which stands unrebut-
ted and which I credit, that on the day it purchased and took
over the operations of Bekins it was not certain that the two
unit employees, who had submitted applications and were told
that they had been hired, would in fact come to work for the
Respondent. Thus, on several occasions the two employees had
voiced their concerns about working for the Respondent, and
were particularly unhappy that they would no longer be subject
to the Union’s pension program. Accordingly, the Respondent
had developed contingency plans in the event these employees
did not show up for work, and was prepared to hire other em-
ployees and/or subcontract the warehouse work. Further, even
if the two employees did show up for work, the Respondent had
not yet decided whether it would employ additional employees
to take the place of subcontractors that had worked in the ware-
house at the facility. Thus, the Union’s majority status was
indefinite and dependent on whether the Respondent decided to
hire additional warehouse employees in place of or in addition
to the subcontractors.
Carlsson assumed the position of president and CEO of the
Respondent on July 3, the date that the Respondent took over
the San Diego operations of Bekins. Prior to July 3, a decision
was made to change wages and the benefits package, including
the vacation policy, health insurance, and the pension program,
for all of the Respondent’s employees. Regarding pensions, it
was decided that each employee, including the unit employees,
would participate in a 401(k) plan and that the Respondent
would no longer contribute to the Union’s pension plan. Fur-
ther, all employees were to sign an “at will” employment
agreement because the Respondent wanted to insure that it had
the flexibility to terminate employees promptly and without
reservation. Carlsson testified that he did not know whether the
two warehousemen were willing to accept employment with the
Respondent under the foregoing conditions until they showed
up for work on July 3, as they had previously expressed to
Bekins General Manager Lovejoy, who continued as the Re-
spondent’s general manager, that they were not happy with the
situation. Thus, Lovejoy reported to Carlsson that even though
the two individuals had submitted employment applications,
Lovejoy could not be certain that they would be coming on
board. In this regard, according to Carlsson, as of July 3 it had
not yet been determined whether the Respondent might be ei-
ther subcontracting the warehouse work, in the event the two
employees did not show up for work, or whether, assuming that
they did show up for work, the Respondent would hire two or
three additional warehouse employees.
Respondent’s general manager, Lovejoy, testified that he and
John Black, Lovejoy’s immediate superior prior to the Respon-
dent’s takeover of the operation, held a meeting with all em-
ployees on about June 19, during which they reviewed the Re-
spondent’s new employee handbook, point by point, and made
it perfectly clear to the employees that the Respondent would
be a new operation with new and different terms and conditions
of employment, so that there would be no misunderstanding.
3 Cruickshank testified that he did not get a response to this letter un-
til about July 18.
BEKINS MOVING & STORAGE CO., LLC 763
Moreover, the employees were told that if they refused to sign
the “at will” agreement they would not be employed by the
Respondent.
Immediately following this meeting with all the employees,
Lovejoy and Black held a separate meeting with the two ware-
house employees. The employee handbook was again reviewed
and discussed as it pertained to these employees. According to
Lovejoy, Union Steward Crampton voiced his strong opposi-
tion and was particularly upset with the fact that after more than
20 years as a participant in the Union’s pension fund, he would
no longer be a participant in that fund under the Respondent but
rather would be a participant in the Respondent’s 401(k) plan.
Lovejoy directly told him that his objection was certainly un-
derstandable, “but unfortunately that is the deal,” and that he
and Harridge should be looking at the situation in a positive
manner, namely, that Bekins was going out of business and that
they were being given the opportunity of continued employ-
ment provided that they agree to be subject to the Respondent’s
new terms and conditions of employment.
Thereafter, according to Lovejoy, during subsequent im-
promptu meetings and discussions, the two employees contin-
ued to express their dissatisfaction with what was happening
and with the new terms and conditions of employment. This
caused Lovejoy to entertain serious doubts whether Crampton
and/or Harridge would actually accept employment with the
Respondent rather than pursue other alternatives. Lovejoy
expressed this view to Carlsson, and testified that he was not
certain that Crampton would begin working for the Respondent
until he showed up for work on July 3, and that Harridge
“probably would” go to work for the Respondent, but he was
not entirely sure of Harridge either, as he felt that Harridge
might simply follow Crampton’s lead.
Lovejoy testified that he developed contingency plans in the
event the warehouse employees did not show up for work on
July 3. He spoke to one contractor about the possibility of sub-
contracting the warehouse work, and also considered hiring two
or possibly three replacement employees from the subcontract
crews that had worked in the warehouse, in the case that
Crampton and/or Harridge decided not to work for the Respon-
dent. And further, he considered the possibility of hiring two or
three employees in addition to Crampton and Harridge in order
to cover all the shifts and potentially reduce the higher costs of
utilizing contract labor. At the time these matters were under
consideration, however, Lovejoy was very busy with other
concerns involving the start up of the Respondent’s operations,
and had not made any definitive decisions regarding the staff-
ing of the warehouse. Since July 3, the Respondent has contin-
ued to operate with only the two warehouse employees,
namely, Clampton and Harridge, and, in addition, has contin-
ued to augment the work force with about two or three subcon-
tract employees on a daily basis.
C. Analysis and Conclusions
The Union requested bargaining with the Respondent by let-
ter dated July 2. The Respondent took over the operations of
the predecessor employer on July 3. The General Counsel
maintains that the Respondent’s collective-bargaining obliga-
tion attached in April or May when the two unit employees
were told that they would likely be hired by the Respondent and
that, under the holding of NLRB v. Burns Security Services, 406
U.S. 272, (1972), the Respondent from that time forth had an
obligation to bargain with the Union prior to changing the two
unit employees’ initial terms and conditions of employment.
The Respondent relies on the holding in Spruce Up Corp.,
209 NLRB 194 (1974), 318 NLRB 1049 (1995), and Western
Paper Products, 321 NLRB 828 (1996). In these cases the
Board determined that the successor employers had made it
clear to the predecessor’s employees, prior to their being hired
by the successor, that they were to be hired under new and dif-
ferent terms and conditions of employment, and that under such
circumstances the successor was privileged to unilaterally es-
tablish new terms and conditions of employment prior to the
commencement of bargaining negotiations with the employees’
collective-bargaining representative.
In the instant case the General Counsel contends that it was
sufficient that in April or May the employees were told that
they would be working for the Respondent, and that this was
sufficient to make their subsequent employment relationship
with the Respondent “perfectly clear.” Thus, the General
Counsel takes the position that what the employees may have
been told and/or agreed to regarding the specific terms and
conditions of such employment, albeit prior to their being hired
by the Respondent, is of no consequence. I do not agree. The
Respondent’s managers in April and May, who at that time
were also the predecessors managers, were simply responding
to the employees’ concerns in order to provide them with cur-
rent information as plans were being developed regarding the
takeover of the operation by the Respondent. In order to as-
suage the employees’ concerns about their futures with the new
entity, and also apparently to retain their services, the employ-
ees were advised, in effect, that they need not worry about be-
ing laid off. It appears eminently reasonable that during the
period when a successor employer is engaged in formulating its
business plans to commence operations it should be permitted
to provide prospective employees with up to date information
regarding future employment without being impeded by arbi-
trary rules governing such matters.
Here, there is no dispute that prior to their being hired by the
Respondent the unit employees were told what their new terms
and conditions of employment would be. Further, they were
told that they would not be hired by the Respondent unless they
specifically accepted these new terms and conditions of em-
ployment. In these circumstances, under the authority of the
cases cited above by the Respondent, it is clear that the Re-
spondent had no duty to bargain with the Union prior to the
establishment of such initial terms and conditions of employ-
ment. Accordingly, I shall dismiss this case in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(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 Respondent has not violated Section 8(a)(5) of the
Act as alleged.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 764
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
4 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
ORDER
The complaint is dismissed in its entirety.

Board and all objections to them shall be deemed waived for all pur-
poses.