Bendix Transportation Corp.

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1170 (N.L.R.B. 1990)

1170
300 NLRB No. 164
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
In adopting the judge’s finding that the Respondent is a successor employer,
we find it unnecessary to rely on his comments, drawn from his reading of
Fall River Dyeing Corp. v. NLRB, 482 U.S. 27 (1987), that the Supreme Court
there (1) ‘‘made obvious [its] inclination to encourage the finding of
successorships’’; (2) ‘‘leaned so decisively in favor of the applicability of the
[successorship] doctrine’’; (3) made ‘‘a similar display of liberality’’ in apply-
ing the Board’s continuing demand doctrine; and (4) exhibited a ‘‘positive atti-
tude towards successorships.’’ We also find it unnecessary, in assessing wheth-
er there is a ‘‘substantial continuity’’ between the employing entities at issue
in this case, to rely on the judge’s observation that the Respondent’s ‘‘regres-
sive innovations’’ would tend to reinforce the employees’ attitudes in favor
of continued representation. For the other reasons set forth fully in the judge’s
decision, however, we agree that the General Counsel has established a ‘‘sub-
stantial continuity’’ between the predecessor and the Respondent.
2 We agree with the judge that the Union made a viable demand to bargain.
In so doing, we find no merit in the Respondent’s argument in its exceptions,
citing Fremont Ford, 289 NLRB 1290 (1988), that a demand for recognition
is not viable unless it is made after the purported successor hires bargaining
unit employees and has commenced operations with them. In Fremont, the
Board found that the union’s first demand for recognition was premature be-
cause the successor at that time had not entered into a franchise agreement
to operate the car dealership nor had it taken any other steps to divest the
predecessor’s control of the employer entity. The union’s second demand for
recognition, however, which the Board found to constitute a viable demand,
occurred before the purported successor had hired any bargaining unit employ-
ees, but after the actual takeover of the predecessor had begun; thus, the facts
in Fremont do not support the Respondent’s argument. Id. at 1293. Where,
as here, the successor is already in existence, has effectively concluded the
transaction leading to its takeover of the predecessor’s business, and has dis-
tributed employment applications to unit employees, a union can make a viable
demand to bargain which continues in effect even though the successor, at the
time of the demand, has not actually commenced operations or hired a sub-
stantial and representative complement of the predecessor’s unit employees.
1 The underlying charge was filed on May 15, 1989, and the complaint was
issued on June 29.
2 Errors in the transcript are noted and corrected.
3 In its present form (to be discussed infra), the firm services more than 30
clients with 200–250 drivers.
Bendix Transportation Management Corporation
and Teamsters Local Union No. 429, a/w Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Case 4–CA–18075
December 31, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On March 12, 1990, Administrative Law Judge Ber-
nard Ries issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed a brief in response to the Respondent’s
exceptions.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Bendix Transportation
Management Corporation, Shoemakersville, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
William Slack Jr., Esq. and Peter Verrochi, Esq., for the
General Counsel.
Patrick W. McGovern, Esq. and Yolanda Troublefield, Esq.,
of Morristown, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
BERNARD RIES, Administrative Law Judge. This matter
was tried in Reading, Pennsylvania, on October 12, 1989.1
Presented for resolution are the usual cluster of questions en-
gendered by a case charging that, under Section 8(a)(5) of
the Act, an employer is a successor employer obligated to
bargain with the union which represented the employees of
its predecessor.
Briefs were received from General Counsel and Respond-
ent on or about November 29, 1989. Having reviewed the
briefs and the facts as reflected in the transcript and exhibits,
I make the following findings of fact, conclusions of law,
and recommendations.2
I. THE FACTS
Respondent, a wholly owned subsidiary of Allied-Signal
Inc., is engaged throughout a substantial portion of the coun-
try in both the private carriage by truck of products and ma-
terials to and from the various Allied locations and, as well,
carriage for other businesses. It operates a fleet of more than
300 tractors and 1000 trailers from 21 terminals and
domiciles in about 12 States. Respondent’s headquarters are
permanently located in South Bend, Indiana. In the present
case, we are interested in a terminal which was located, for
a while, in Allentown, Pennsylvania.
Without getting into all the historical details, it is suffi-
cient to say that at one time, the Union represented the driv-
ers and other related personnel of an employer named Eltra
which, at least by 1980, terminated its drivers and began to
lease them (and a warehouseman and a mechanic) instead
from a firm called Pacemaker Driver Service, Inc. Pacemaker
operated a business of employing, for the purpose of leasing
out, primarily transportation-related personnel.3 At that time,
Pacemaker agreed to extend recognition to the Union as rep-
resentative of the employees then rented by Pacemaker to
Eltra.
Eltra was, apparently, eventually absorbed into Respondent
Bendix around 1984; at the time, Eltra was operating a ter-
minal in Reading, Pennsylvania. After the takeover, Bendix
continued to rent drivers from Pacemaker, and Pacemaker
continued to recognize the Union as the bargaining represent-
ative of those rented employees at the Reading terminal.
When Bendix moved to a terminal in Allentown, in April
1986, Pacemaker also recognized the Union there, and the
1171BENDIX TRANSPORTATION CORP.
4 The record shows that all of Bendix’s tractors and trailers involved in the
operation considered here are also leased from other companies.
5 Deibert began work as terminal manager for Bendix’s predecessor in 1981
or 1982. G.C. Exh. 21 shows that as of April 30, 1989, of the 29 Pacemaker
employees assigned to the terminal, 17 had been employed there for more than
4 years.
6 All date references hereafter are to 1989, unless otherwise indicated.
7 Actually, by that time, Pacemaker was known as ‘‘Vanguard of Pennsyl-
vania, Inc.’’ (See G.C. Exh. 25.) One of the four ‘‘points’’ made in Respond-
ent’s brief is that the complaint should fail because it alleges that Respondent
is a successor to ‘‘Pacemaker,’’ whereas in fact, Pacemaker had been replaced
by Vanguard, allegedly a different corporation, in January 1989.
The claim that Vanguard is a new and substantially different corporation is
one that I very much doubt. When Respondent’s LaGarde was called as an
adverse witness by General Counsel, he agreed that ‘‘the name of the company
was changed’’ in January from Pacemaker to Vanguard. When counsel for Re-
spondent asked LaGarde if ‘‘that was anything more than a simple name
change,’’ suggesting the possibility of a ‘‘new corporation’’ or a ‘‘drop-down
agreement’’ or a ‘‘corporate merger,’’ LaGarde said that a new corporation
had been formed. But Respondent Vice President Drost, testifying for Re-
spondent, stated that he was ‘‘informed by Pacemaker that it was changing
its name to Vanguard.’’
Correspondence in evidence shows that Vanguard now occupies the same
suite of offices at the same address in Indianapolis at which Pacemaker had
been located. (G.C. Exhs. 2, 25.) Although counsel for Respondent went to
the trouble of introducing into evidence Respondent’s operating permits, they
offered no documentation of the circumstances surrounding the creation or
function of Vanguard as distinguished from Pacemaker. We do know that, as
Respondent’s brief notes, Vanguard ‘‘assumed Pacemaker’s labor agreement.’’
We also know that on March 27, Drost wrote a letter to Dave Constantino
in care of ‘‘Pacemaker’’ at the Indianapolis address, and that even in a May
3 letter from Respondent’s counsel to the Union, the leasing outfit was re-
ferred to as ‘‘Pacemaker’’ (G.C. Exhs. 2, 4). Advertisements from 1989 trade
journals introduced by Respondent state that Vanguard was ‘‘formerly Pace-
maker Employee Leasing, Inc.’’ With reference to General Counsel’s Exhibit
8, Respondent stipulated that this list represented, inter alia, employees who
were ‘‘employed by the Pacemaker Driver Service’’ at the Bendix Allentown
terminal as of April 30. It is, in short, difficult to take this contention seri-
ously.
8 Deibert explained the move as motivated by ‘‘[e]conomics and we didn’t
need the dock space any longer’’ because of the fact that Respondent had no
longer been doing ‘‘LTL’’ work, as will be noted, since January.
9 A ‘‘dedicated’’ driver serves only the location at which Respondent’s par-
ent, Allied Signal, produces an apparently sensitive chemical called
borontrifluoride.
10 Respondent contends at sole length that a major change in operations after
May 1 was the cessation of ‘‘less-than-truckload’’ (LTL) work, which had ac-
counted for 40–60 percent of all the business. This ignores, however, the testi-
mony of Respondent’s supervisor Deibert on adverse-witness examination by
General Counsel. He said there that virtually all the LTL work had been
phased out at Allentown by the latter part of January. When called as a wit-
ness for Respondent, however, Deibert seemed to change his tune, indicating
that perhaps 20–25 percent of the LTL work was not eliminated until June.
I see no reason to believe his second version.
The same sort of inconsistency attended Deibert’s testimony regarding the
expansion of the road drivers’ work into western and southern States to which
they had only rarely driven before. At first, he testified quite certainly that
this expansion, into Indiana, Illinois, Michigan, South Carolina, Georgia, Lou-
isiana, and Tennessee, had ‘‘just started in the last three weeks’’ (he gave his
testimony on October 12). Subsequently, after road driver Dennis Weitzel, tes-
tifying for General Counsel, said that he had been getting into some of these
States in June or ‘‘maybe the beginning of July,’’ Deibert came back to testify
for Respondent that it had begun ‘‘running [the drivers] further away’’
‘‘[a]pproximately between June and July.’’ I would credit Deibert’s positive
first version in these circumstances, given Weitzel’s uncertainty.
last collective-bargaining agreement executed by Pacemaker
and the Union covered the period May 5, 1986–May 4, 1989.
Thus, we encounter in this case a rather unusual collec-
tive-bargaining unit, composed of those employees of an em-
ployee leasing company who are leased out to perform work
at a particular terminal of a national firm engaged in the
business of private and common carriage.4
While Pacemaker was, nominally and legally, the ‘‘em-
ployer’’ of the leased personnel at the Allentown terminal,
the employees generally had very little contact with their
Pacemaker supervisor, Ben LaGarde (located in Exton, Penn-
sylvania), in comparison to their much more frequent con-
tacts with Respondent’s terminal manager Herbert Deibert
and his dispatcher, Randy Christman. As might be expected,
Deibert and Christman oversaw the day-to-day activities of
the drivers and gave them instructions about how to perform
their duties, and Deibert played a role in both personally re-
solving grievances and assisting in grievance investigations
and discipline imposed by Pacemaker pursuant to the bar-
gaining agreement between Pacemaker and the Union.5
On March 27, 1989,6 Timothy A. Drost, the Respondent’s
vice president of operations and resources, located in South
Bend, wrote a letter to a representative of Pacemaker con-
firming that, effective April 30, Bendix would discontinue
use of Pacemaker drivers. At the hearing, Drost testified to
various reasons for the decision to change to direct-hire driv-
ers, including the desire to get more mileage from the drivers
than Respondent was capable of doing under the lease ar-
rangement and to more fully integrate the drivers into the
Bendix national network.
The Union, while preparing for negotiations to supplant
the bargaining contract expiring in early May, was informed
of the planned operational change in late March and took
some action in response thereto, to be described below.
In April, applications to be hired as permanent Bendix em-
ployees were passed out to all 28 drivers and the mechanic
working at the Allentown terminal by Deibert and
Christman; advertisements were placed in the newspapers;
and as of May 1, Respondent had hired a work force of 22
employees, 19 of whom (including the mechanic) had been
in the employ of Pacemaker at the Bendix terminal.7
The Allentown terminal, at which the leased trailers were
stored when not in use, contained a terminal building, some
10,000 square feet of storage area, and 6 loading docks;
there, the drivers picked up the loaded trailers. On May 15,
however, with the Allentown lease about to expire, Bendix
leased a new location at Shoemakersville, Pennsylvania,
about 31 miles from Allentown, and moved its operation
there effective June 5. The Shoemakersville location consists
of offices and some storage space for office supplies, and has
no docks.8 It was not, however, until the middle of August
that Respondent stopped storing trailers in Allentown and in-
stead parked them at three proximate rented locations. Al-
though apparently all Allentown drivers (and the one me-
chanic) continued to work for Respondent after the move to
the Shoemakersville facility, and the drivers were still cat-
egorized, as they had previously been, as over-the-road,
local, and ‘‘dedicated’’ drivers,9 they no longer had as such
contact with Deibert and Christman as they had had at Allen-
town; some of them (starting around September) began driv-
ing to more distant States and customers which the Allen-
town terminal had never serviced; and various operational
changes were effected, such as forbidding the drivers to use
toll roads and restricting their choice of gasoline stations to
one source.10
II. DISCUSSION
The question of whether a new employing entity is bound
to recognize a union previously recognized by an employer
which is no longer in the picture has become, over the years,
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Although both Gimbels and Saks were in the same basic retail clothing
industry, Gimbels, in furnishing alteration employees to Saks for compensation
when they shared the same store, was acting as a labor contractor.
12 Pinter Bros., 263 NLRB 723 (1982), and Co-Op Trucking Co., 209
NLRB 829 (1974), relied on by Respondent, seem to be inconsistent with Fall
River, Burns, Saks, and other cases insofar as the former cases emphasize the
alleged importance of the sale of a going business.
I do not, similarly, find helpful here the case of American Stevedoring Co.,
280 NLRB 756 (1986), relied on by General Counsel. That case is such like
Burns, in which one independent contractor took over the function previously
performed for a third party by another independent contractor.
a rather involved inquiry. Not only does each case present
potentially an almost unlimited fact array, in order to com-
pare the old operation, duties, functions, personnel, etc., with
the new, but the possible permutations of the manner in
which the later business was formed from the old also offer
choice opportunities for nearly endless factual analysis (as-
sets transfer, auction purchase, lease, sale, substitution of
contractors, etc.).
The two most familiar general types of successorship
cases, perhaps, are exemplified by NLRB v. Burns Security
Services, 406 U.S. 272 (1972), and Fall River Dyeing Corp.
v. NLRB, 482 U.S. 27 (1987). In Burns, the Supreme Court
held that a security guard service which won a contract bid
and succeeded to the work performed by the preceding secu-
rity company also had to recognize the existing union as bar-
gaining agent when it hired the old employees. There was no
transfer of assets or other privity between the two inde-
pendent contractors, but there was also no meaningful change
between the two groups of employees and the work they per-
formed under the old and new regimes.
Both before and after Burns, the Board had been evolving
successorship principles in various situations, and the Fall
River case represents the more traditional kind of claimed
successorship. A classical ‘‘successorship’’ for present pur-
poses would be the purchase of a plant from the present
owner by a new firm, with operations, customers, etc., con-
tinuing unchanged. Fall River did not quite fit that classic
mold.
The company involved ceased production in February
1982 and finally went out of business in late summer of that
year, making an assignment of its property for the benefit of
its principal creditors and disposing of its remaining assets
at auction. During this period, a former employee and officer
and the president of one of the erstwhile major customers
formed a new company to engage in only one type of busi-
ness, accounting for 30–40 percent of that conducted by the
old company. They acquired from the creditors the plant, real
property, and equipment, and obtained some of the remaining
inventory at the auction (they did not, however, purchase one
of the three buildings formerly used by the previous em-
ployer, and they closed one of the two which they did ac-
quire). They began hiring employees in September 1982 after
advertising for workers and supervisors in a newspaper (and
contacting several prospective supervisors). Although they
engaged in only one of the two former lines of business,
working conditions did not vary from before, the supervisors
were virtually the same, and ‘‘[o]ver half’’ of the new busi-
ness came from former customers, in particular one of the
new owners.
Despite the indirect and piecemeal acquisition of the as-
sets, the change in the business purposes of the new com-
pany, and the 7-month hiatus before the new owners began
seeking out employees, the Court held that when, in mid-Jan-
uary 1983, the new operation had reached a ‘‘substantial and
representative’’ complement of employees by attaining its
‘‘initial goal’’ of one full shift, on which the 55 workers in-
cluded 36 former employees of the old employer, the new
employer was obligated to bargain with the former union as
a successor.
Respondent argues here that because there was no transfer
of assets between Vanguard and Bendix, no successorship re-
sulted, citing the reference in Fall River (482 U.S. at 43) to
the requirement expressed in Golden State Bottling Co. v.
NLRB, 414 U.S. 168, 184 (1973), that the Board focus on
whether the new company ‘‘has acquired substantial assets of
its predecessor.’’ Since there was no such acquisition in
Burns, however, and since in Fall River the Court not only
relied on Burns, but specifically extended its reach, I cannot
conceive that the Court was, in Fall River, silently overruling
Burns on this point.
The case is somewhat unusual, however, in that the Re-
spondent here is assertedly a successor to its own former
independent contractor, and the argument can be made that,
under the precedents, the ‘‘employing industry’’ has
changed: the ‘‘employer’’ of the present group of employees
was Vanguard, a labor contractor, and the new employer is
Bendix, a carrier. However, similar circumstances were
present in Saks Fifth Avenue, 247 NLRB 1047 (1980), enfd.
in pertinent part 634 F.2d 681 (2d Cir. 1987), where Saks
leased space from Gimbels in Pittsburgh and also leased
Gimbels’ employees to perform Saks’ alteration work;
Gimbels employed alteration employees to work solely on
clothes sold by Saks. When Saks moved its business to a
separate location and hired most of its former Gimbels alter-
ation employees, the Board found a successorship, holding,
‘‘Continuity of the employing industry requires consideration
of the work done, which in this case continues to be alter-
ations on clothing sold by Saks, as well as consideration of
the work force.’’ (Emphasis added.)11
Thus, the fact that after May 1, Bendix performed the
work through employees directly hired by it does not appear
to be a material factor. The ‘‘work done’’ was essentially the
same as before, and it is hard to perceive a difference be-
tween Bendix doing the work through its own employees and
what would have been an unarguable situation, as General
Counsel asserts on brief, had Bendix simply continued hav-
ing the driving done by hiring another independent contractor
to furnish employees in place of Vanguard.12
Respondent further contends, however, that the asserted
successorship here fails to satisfy the indicia of ‘‘substantial
continuity’’ cited by the Fall River decision as factors to
which the Board looks (482 U.S. at 43):
[W]hether the business of both employers is essentially
the same; whether the employees of the new company
are doing the same jobs in the same working conditions
under the same supervisors; and whether the new entity
has the same production process, produces the same
products, and basically has the same body of customers.
The Board has never held that all of these conditions have
to obtain in order to establish a ‘‘substantial continuity’’; the
Board’s approach, as the Court said in Fall River, is ‘‘pri-
marily factual in nature and is based upon the totality of the
circumstances of a given situation.’’ Ibid.
1173BENDIX TRANSPORTATION CORP.
13 There was no specific evidence presented as to the proper date, if any,
for recognition of the Union by Respondent. The record shows that on May
1, the date urged by General Counsel on brief, Respondent started on its own
in Allentown with 22 employees working in all the preexisting classifications,
19 of whom had been employed at the same location for Vanguard; the work
complement thereafter hovered around the 22–23 mark, with a majority of
former Vanguard employees, until June 27–28, when 8 employees were hired
and the proportion of former Vanguard/Bendix employees dropped to 15/30;
and thereafter, until October 7, just prior to the hearing, the total employees
ranged mostly in the high 20s, with the former Vanguard employees again rep-
resenting a bare majority from July 18 through October 7.
My impression of the record is that a ‘‘substantial and representative’’ com-
plement was in place on the very first day, and that Respondent was then en-
gaged in normal operations, which would seem to mean, according to Great
Lakes, supra, as well as Fall River, that no changes which occurred thereafter
are relevant (including the move to Shoemakersville in June and the different
arrangements resulting therefrom).
There is no doubt that the drivers now directly employed
by Bendix do not work under the identical conditions that the
leased Vanguard employees did. The significance of those
changes which occurred subsequent to the relevant date upon
which recognition should have been accorded seems debat-
able. Thus, the fact that beginning only a few weeks prior
to the hearing, some drivers were assigned occasionally to
drive to States further west and south than had been their
previous experience, has been held the sort of change which
is not legally material. Great Lakes Chemical Corp., 280
NLRB 1131, 1133 (1986).13
In addition, a number of the changes cited by Respondent,
when viewed in the perspective which seems to be the con-
trolling one, arguably cut in favor of the General Counsel’s
position. The perspective referred to is one which was not
emphasized in Burns, but has been stressed in Fall River
(482 U.S. at 43) and in cases preceding and following that
case: e.g., Ranch-Way, Inc., 183 NLRB 1168, 1169 (1970);
Great Lakes, supra, 280 NLRB at 1133; NLRB v. Albert
Armato, 199 F.2d 800, 803 (7th Cir. 1950); NLRB v. Jeffries
Lithograph Co., 752 F.2d 459, 464 (9th Cir. 1985); Sheffield
Industries v. NLRB (D.C. Cir. Mar. 2, 1989; unpublished per
curiam order). As summed up by the Board in Derby Refin-
ing Co., 292 NLRB 1015 (1989), ‘‘In the successorship situ-
ation, the events must be viewed from the employees’ per-
spective, i.e., whether their job situation has so changed that
they would change their attitude about being represented.’’
Assessed from this viewpoint, it is not easy to believe that
employees who were presumed to favor union representation
would have made a complete volte face once Bendix started
paying them directly. Indeed, a number of the changes noted
by Respondent, such as the lack of access to shower or
lunchroom facilities after moving to Shoemakersville (if that
were relevant); a lower hourly wage for the road drivers; the
increase in their daily driving mileage from perhaps 350–400
miles to 400–500 miles; the denial to such drivers of the
right to use toll roads (which Respondent’s brief concedes
makes their work ‘‘more difficult’’); requiring them to pur-
chase fuel from a single source as opposed to the prior two
alternatives—all such regressive innovations argue for the
likelihood that the new employment relationship would not
‘‘change their attitude about being represented,’’ but would
rather tend to reinforce that attitude.
At the same time, it may fairly be said that the essential
nature of the work functions did not change. There were still
three categories of drivers. There were still six local drivers,
six dedicated drivers, and (despite Deibert’s contrary testi-
mony) apparently the same number of road drivers as before.
The local drivers, who used to work in a 50-mile radius, ex-
panded their horizons to 100 miles. The road drivers began,
not long before the hearing, to drive further in some cases
and serve new customers, but it has always been common to
pick up new customers and lose other ones. When Respond-
ent operated the Allentown terminal, the drivers left their
trailers there; now they leave them at three nearby locations
(one of which was sometimes used while the operation was
still at Allentown). They used to store their leased tractors
at a Hertz Penske facility in Allentown; now they leave them
at a Hertz Penske location in Leesport.
I do not view the various changes as tending to suggest
an affirmative answer to the question of whether it is likely
that the drivers no longer desire union representation. Truck-
drivers, long-range and short, are truckdrivers—basically sol-
itary workingmen, whether they occasionally and briefly see
one another at a terminal or not. In the present case, they
continued, after the Bendix takeover, to receive supervision
from the same principal authority figure—Deibert—with
whom they were used to dealing on a regular basis even
when Vanguard was the ‘‘employer.’’ Deibert testified that
the method of assigning the drivers is the same now as it
was prior to May 1. He also testified that Respondent has
‘‘some’’ new customers, but it would appear that there has
not been a substantial change in that area of questionable im-
portance.
The language used and the conclusions reached in Fall
River made obvious the Court’s inclination to encourage the
finding of successorship. Speaking of the reference in Burns
to the presumptions of majority representation which the
Board has applied in order to promote industrial peace, the
Court noted at 39–40.
The rationale behind the presumptions is particularly
pertinent in the successorship situations and so it is un-
derstandable that the Court in Burns referred to them.
During a transition between employers, a union is in a
peculiarly vulnerable position. It has no formal and es-
tablished bargaining relationship with the new em-
ployer, is uncertain about the new employer’s plans,
and cannot be sure if or when the new employer must
bargain with it. While being concerned with the future
of its members with the new employer, the union also
must protect whatever rights still exist for its members
under the collective-bargaining agreement with the
predecessor employer. Accordingly, during this unset-
tling transition period, the union needs the presumptions
of majority status to which it is entitled to safeguard its
members’ rights and to develop a relationship with the
successor.
The position of the employees also supports the ap-
plication of the presumptions in the successorship situa-
tion. If the employees find themselves in a new enter-
prise that substantially resembles the old, but without
their chosen bargaining representative, they may well
feel that their choice of a union is subject to the vagar-
ies of an enterprise’s transformation. This feeling is not
conducive to industrial peace. In addition, after being
hired by a new company following a layoff from the
old, employees initially will be concerned primarily
with maintaining their new jobs. In fact, they might be
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 As to situations in which successors recognized unions prematurely, i.e.,
prior to the date later to be ascertained by the Board, thus violating Sec.
8(a)(2), or in good faith refused to extend recognition on the erroneous ground
that a ‘‘substantial and representative’’ complement had not been reached,
thereby violating Sec. 8(a)(5), the Court shrugged off these violations as mere-
ly entailing ‘‘a remedial order.’’ 482 U.S. at fn. 18.
15 Ignatosky had already been preparing for negotiations with Vanguard to
replace the contract due to expire on May 4.
inclined to shun support for their former union, espe-
cially if they believe that such support will jeopardize
their jobs with the successor or if they are inclined to
blame the union for their layoff and problems associ-
ated with it. Without the presumptions of majority sup-
port and with the wide variety of corporate trans-
formations possible, an employer could use a successor
enterprise as a way of getting rid of a labor contract
and of exploiting the employees’ hesitant attitude to-
wards the union to eliminate its continuing presence.
Starting with this attitude toward the usefulness of
successorship obligations, it is not surprising that the resolu-
tion of the specific questions addressed by the Court in Fall
River leaned so decisively in favor of the applicability of the
doctrine. The Board, for example, was deemed justified in
formulating a ‘‘substantial and representative complement’’
rule in successorship situations. In Fall River, that meant that
the successor employer became liable to recognize the old
union not when it commenced operations in September 1982,
but rather in mid-January 1983, by which time it had hired
55 workers, 36 of whom had been employed by the prede-
cessor employer—even though by mid-April 1983 the suc-
cessor had hired a ‘‘full’’ complement of 107 employees,
less than half of whom had been employed by the prede-
cessor; even though it was not until October 1984 (272
NLRB 839) that the Board decided that the phenomenon of
a ‘‘substantial and representative complement,’’ and thus a
bargaining obligation, had arisen in mid-January 1983 rather
than later; even though there was no evidence that the 36
predecessor’s employees hired by the successor as of the Jan-
uary date actually favored the Union as their representative;
and even though the putative successor employer could only
guess at the date which the Board might later decide was the
occasion upon which a ‘‘substantial and representative com-
plement’’ was reached and the obligation to bargain con-
sequently arose.14
In a similar display of liberality, the Court agreed that a
union demand made in October 1982 could be deemed to be
‘‘continuing’’ until mid-January 1983, the time the Board
held to represent the advent of the ‘‘substantial and rep-
resentative complement’’ and a time which necessarily
postdated the issuance of the unfair labor practice complaint
in December 1982. Likewise, it perceived the 7-month hiatus
to be no obstacle to a finding of successorship.
Following what I consider to be the Supreme Court’s posi-
tive attitude toward successorship, together with the emphasis
placed by the Court, the courts of appeals, and the Board on
‘‘the employees’ perspective,’’ 482 U.S. at 43 as earlier dis-
cussed, it is my belief that on the present record, Respondent
would qualify as a successor employer of the Vanguard bar-
gaining unit.
In Fall River, the Court made it abundantly clear that the
duty of a successor employer to recognize and bargain with
a union can ‘‘only’’ come into being when the union has ad-
dressed such a request to the successor. In the words of the
Court (Id. at 52):
We also hold that the Board’s ‘‘continuing demand’’
rule is reasonable in the successorship situation. The
successor’s duty to bargain at the ‘‘substantial and rep-
resentative complement’’ date is triggered only when
the union has made a bargaining demand. Under the
‘‘continuing demand’’ rule, when a union has made a
premature demand that has been rejected by the em-
ployer, this demand remains in force until the moment
when the employer attains the ‘‘substantial and rep-
resentative complement.’’ See, e.g., Aircraft Magne-
sium, 265 N.L.R.B., at 1345, n. 9; Spruce Up Corp.,
209 N.L.R.B. at 197.
The record reveals the following evidence relevant to the
Union’s efforts here to deal directly with Bendix. John T.
Ignatosky, the Union’s secretary-treasurer, testified that after
he heard from Vanguard Vice President James Malarney in
late March that Respondent was canceling its contract with
Vanguard, Ignatosky asked Deibert for the name of a Bendix
official to ‘‘deal with to talk to about negotiating a con-
tract.’’ Deibert gave him the name and telephone number of
one Tim Eideljorge in South Bend. When Ignatosky finally
was able to contact Eideljorge (who is referred to in Re-
spondent’s brief, although not in the record, as ‘‘Bendix
manager of labor relations’’), Ignatosky asked ‘‘whether
there was a possibility of getting together and discussing a
contract.’’15 Eideljorge replied that he ‘‘handle[s] labor’’ but
did not have the ‘‘authority to tell you yes or no, anything
like that’’; such authority resided in ‘‘higher people,’’ nam-
ing specifically Vice President Drost. Ignatosky, however,
who had been required to make a second call in order to get
hold of Eideljorge, asked the latter to have Drost call him,
which he thought would be easier. Apparently Eideljorge
agreed to relay the message, but Drost never called.
Ignatosky then turned the matter over to the Union’s coun-
sel, who sent the following letter to Drost on April 17:
This office is legal counsel to Teamsters Local
Union No. 429. In that capacity, I am writing to you
with respect to the change from Vanguard Leasing
Company to the intention of Bendix Transportation
Management Corp. to direct hire drivers. In that Bendix
has controlled the daily terms and conditions under
which the 30 or so drivers have worked at the Allen-
town terminal, it is the position of Local 429 that Ben-
dix is a co-employer of those employees and, accord-
ingly, is obligated to negotiate with that Local Union
upon demand with respect to the decision to change
from a leasing company to direct hire, together with the
effects of that change. In addition, if the decision to di-
rect hire is irrevocable, it is incumbent upon Bendix to
negotiate the terms and conditions of employment of
the drivers with Local 429.
Please have the appropriate Company official or
legal counsel contact the undersigned or John Ignatosky
to schedule such negotiations.
16 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 objec-
tions to them shall be deemed waived for all purposes.
17 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order 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.’’
On May 3, counsel for Bendix replied:
Your April 17, 1989 letter to Timothy Drost has
been referred to me for review and reply.
Bendix Transportation Management Corporation de-
nies that it is a joint employer, or to use your phrase
a co-employer, of Local 429 members.
There is no substance to your claim that Bendix has
‘‘controlled the daily terms and conditions under which
the 30 or so drivers have worked at the Allentown ter-
minal.’’ To the contrary, Pacemaker has exercised con-
trol over the drivers’ terms and conditions of employ-
ment such that any involvement by Bendix was purely
incidental to the normal contractor-customer relation-
ship that existed between Pacemaker and Bendix.
For these reasons, Bendix’ position is that it has no
duty to bargain with IBT Local 429 absent certification
of Local 429 as the exclusive bargaining representative
of Bendix’ employees.
On May 15, 2 weeks after Respondent had begun its ‘‘di-
rect-hire’’ operation of the Allentown terminal, union counsel
filed a charge which read:
Since on or about April 17, 1989, the Employer has
failed and refused to recognize Teamsters Local Union
No. 429 or to bargain with it with respect to its deci-
sion to change from leasing drivers to direct hire of
those drivers, as well as the affects [sic] of that change.
By the above and other acts, the above-named Em-
ployer has interfered with, restrained and coerced em-
ployees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
It can be seen from the foregoing that, until the Region
issued its complaint on June 29, there was no specific ref-
erence by the parties to a bargaining relationship founded on
a ‘‘successorship’’ obligation. However, it appears that no
other theory could account for union counsel’s statement in
its letter that ‘‘if the decision to direct hire is irrevocable, it
is incumbent upon Bendix to negotiate the terms and condi-
tions of employment of the drivers with Local 429.’’ This
declaration, it seems to me, could only be based on a con-
templation that as the direct-hire employer of the drivers, Re-
spondent would be obligated to bargain thereafter, not as
joint employer, but because it would be the sole employer
of the same bargaining unit.
While Respondent’s reply focused on the ‘‘joint em-
ployer’’ claim, as did the Union’s subsequent charge, the lat-
ter may be read, as well, to encompass Respondent’s refusal
to acknowledge a present duty to bargain, in its reference to
‘‘failed and refused to recognize Teamsters Local Union No.
429 or to bargain with it with respect to its decision.’’
Whether a demand for successor bargaining has been made
should be subject to liberal construction. See T. F. Frick &
Co., 270 NLRB 459 fn. 1 (1984). I believe that even an am-
biguous demand should put an employer on notice that it
must examine every possibility on which the demand might
be legally premised. That is the case here.
CONCLUSIONS OF LAW
1. Respondent, Bendix Transportation Management Cor-
poration, is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Teamsters Local Union No. 429, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated the Act as alleged in the com-
plaint.
On these findings of fact and conclusions of law and on
the entire record, I make the following recommended16
ORDER
The Respondent, Bendix Transportation Management Cor-
poration, Shoemakersville, Pennsylvania, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with Teamsters
Local Union No. 429, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, as the exclusive collective-bargaining representative of
the employees in the following appropriate bargaining unit
with regard to their wages, hours, working conditions, and
other terms and conditions of employment:
All truckdrivers, mechanics, helpers and warehousemen
assigned to Respondent’s Shoemakersville, Pennsyl-
vania, location.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively with
Teamsters Local Union No. 429, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representative of the
unit employees with regard to wages, hours, working condi-
tions and other terms and conditions of employment of the
unit employees, and if an understanding is reached, embody
such understanding in a signed agreement.
(b) Post at its business facility located at Shoemakersville,
Pennsylvania, copies of the attached notice marked ‘‘Appen-
dix.’’17 Copies of the notice, on forms provided by the Re-
gional Director for Region 4, after being signed by the Re-
spondent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT fail or refuse to recognize and bargain with
Teamsters Local Union No. 429, a/w International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining representative of the
employees in the following appropriate unit with regard to
wages, hours, working conditions, and other terms and condi-
tions of employment:
All truckdrivers, mechanics, helpers, and warehousemen
assigned to Respondent’s Shoemakersville, Pennsyl-
vania, location.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL, on request, recognize and bargain collectively
with Teamsters Local Union No. 429, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining representa-
tive of the employees in the appropriate unit described
above, with regard to their wages, hours, working conditions,
and other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
BENDIX TRANSPORTATION MANAGEMENT
CORPORATION